Child Molestation, Dropbox and the 4th Amendment

After “a bench trial on stipulated facts” in the Superior Court of Pima County, Michael Pharis was convicted of seven counts of sexual exploitation of a minor under the age of fifteen, two counts of child molestation, and seven counts of sexual conduct with a minor under the age of fifteen”, the trial judge sentenced him “to a combination of concurrent and consecutive, presumptive prison terms totaling 366 years.”  State v. Pharis, 2014 WL 4057721 (Arizona Court of Appeals 2014). Pharis appealed arguing, among other things, that the trial judge “erred by denying his motion to suppress evidence.”  State v. Pharis, supra. 

The Court of Appeals began its opinion by outlining how the prosecution arose:”

In November 2012, D.S., Pharis's then girlfriend, became suspicious of Pharis's relationship with his former girlfriend, S.S. Pharis and S.S. have a child together, A.P., who was four years old at the time. D.S. used the `lost password’ function on Dropbox to obtain and send a temporary password for Pharis's account to his e-mail, which he had left open on her laptop. Using the temporary password, D.S. opened Pharis's Dropbox account, where she saw `multiple video images of [Pharis] performing sexual acts on [A.P.]’

After telephoning S.S., D.S. took her laptop to S.S.'s house to show her the videos. However, D.S. was unable to show them because S.S. did not have an internet connection. D.S. then returned home with her laptop and called the police. While waiting for the officers to arrive, D.S. became concerned that Pharis `would become suspicious and delete the images from his Dropbox account.’  Consequently, she downloaded the seven videos from Pharis's Dropbox account to her laptop's hard drive.

When the officers arrived, they noticed D.S.'s laptop on the couch, displaying a paused video showing a man's torso. The officers asked D.S. to show them the videos, and D.S. resumed playing the video that was already open. Officers then obtained a search warrant for the residence and seized D.S.'s laptop. During a subsequent interview with officers, Pharis admitted to committing sexual acts with A.P., beginning in October 2012, and to recording those encounters.

State v. Pharis, supra. 

Before he went to trial, Pharis filed a motion to suppress, allegeing that

all evidence, including but not limited to videos and statements, collected as a result of the state's unauthorized intrusion into [his] Dropbox account, be suppressed.’ He maintained that D.S. had `acted as a state agent when she hacked into [his] account at the [officers'] request to view the evidence,’ thereby violating his constitutional right to privacy. After hearing argument, the court denied the motion, finding Pharis had failed to make a prima facie case for a constitutional violation because there had been no state action.

State v. Pharis, supra.  On appeal, Pharis argued, among other things, that the trial judge erred in denying his motion to suppress.  State v. Pharis, supra.  More precisely, he claimed

he `had an actual and reasonable expectation of privacy in his Dropbox account’ and D.S. had no authority to search his Dropbox files. He further maintains that his 4rth Amendment privacy rights were violated when D.S. showed the officers the videos downloaded from his Dropbox account because that constituted an unreasonable, warrantless search.

State v. Pharis, supra. 

The Court of Appeals began its analysis of Pharis’ argument by noting that the

4th Amendment to the United States Constitution prohibits unreasonable searches and seizures. U.S. v. Jacobsen, 466 U.S. 109 (1984). . . . `Warrantless searches are “per se unreasonable under the 4th Amendment -- subject only to a few specifically established and well-delineated exceptions.”’  Mazen v. Seidel, 189 Ariz. 195, 940 P.2d 923 (Arizona Supreme Court 1997), quoting Katz v. U.S., 389 U.S. 347 (1967).

However, the 4th Amendment `is wholly inapplicable “to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official.”’ U.S. v. Jacobsen, supra, quoting Walter v. U.S., 447 U.S. 649 (1980). And, under the private-search exception, `a police view subsequent to a search conducted by private citizens does not constitute a “search” within the meaning of the 4th Amendment so long as the view is confined to the scope and product of the initial search.’ U.S. v. Bomengo, 580 F.2d 173 (U.S. Court of Appeals for the 5th Circuit 1978); see also U.S. v. Jacobsen, supra.

For example, in Jacobsen, employees of a private freight carrier removed several layers of wrappings from a damaged package and observed a white powdery substance inside plastic bags. U.S. v. Jacobsen, supra.  After replacing the package as they had found it, the employees notified the Drug Enforcement Agency. U.S. v. Jacobsen, supra. The first agent to arrive similarly removed the wrappings and saw the white powder. U.S. v. Jacobsen, supra.  He then opened the plastic bags, removed a trace of the substance, and tested it. U.S. v. Jacobsen, supra.  The test confirmed the substance was cocaine. U.S. v. Jacobsen, supra.  Agents obtained a warrant to search the location where the package was addressed to be sent. U.S. v. Jacobsen, supra.  

Once there, they arrested the defendants, who were charged with possessing an illegal substance with intent to distribute. U.S. v. Jacobsen, supra.  The defendants filed a motion to suppress, arguing the warrant was the product of an illegal search and seizure, but the motion was denied. U.S. v. Jacobsen, supra.  

On appeal, the Supreme Court concluded the 4th Amendment did not require the first agent to obtain a warrant before opening the package and removing the substance for testing. U.S. v. Jacobsen, supra.  The Court pointed out that `[t]he initial invasions of [the defendants'] package were occasioned by private action.’ U.S. v. Jacobsen, supra.  And, it noted that `[t]he additional invasions of [the defendants'] privacy by the government agent must be tested by the degree to which they exceeded the scope of the private search.’ U.S. v. Jacobsen, supra.  

The Court observed that `[o]nce frustration of the original expectation of privacy occurs, the 4th Amendment does not prohibit governmental use of the now-nonprivate information.’  U.S. v. Jacobsen, supra.  Addressing each step of the agent's search, the Court found no 4th Amendment violation. U.S. v. Jacobsen, supra.  

State v. Pharis, supra. 

The Court of Appeals then noted that

[s]imilarly, here, the initial search of Pharis's Dropbox account was occasioned by private action. Acting of her own accord, D.S. obtained a temporary Dropbox account password, had it sent to Pharis's e-mail left open on her laptop, and accessed his Dropbox account, where she saw the videos. She then downloaded the videos to her laptop's hard drive. Because these invasions of Pharis's expectation of privacy were committed by a private party and not by state action, they did not violate the 4th Amendment. 

State v. Pharis, supra. 

The court went on to explain that assuming

the officers' request that D.S. show them the videos can be characterized as a search, that request did not exceed the scope of D.S.'s private search and therefore did not violate the 4th Amendment. See U.S. v. Jacobsen, supra.  D.S. had seen the videos on Pharis's Dropbox account and downloaded them to her laptop's hard drive. At that point, the videos were no longer private. See U.S. v. Jacobsen, supra. Although it is not clear whether the officers then viewed the videos from their location on Pharis's Dropbox account or on D.S.'s laptop, the videos nonetheless were the same ones D.S. had seen and downloaded.  See U.S. v. Jacobsen, supra.  (`The 4th Amendment is implicated only if the authorities use information with respect to which the expectation of privacy has not already been frustrated.’).

As the state points out, even if the officers watched the videos to a greater length or degree than D.S. previously had done, they did not exceed the scope of D.S.'s search because they were `already substantially certain of what [was depicted in the videos] based on the statements of [D.S.]’ U.S. v. Runyan, 275 F.3d 449 (U.S. Court of Appeals for the 5th Circuit 2001) (`[T]he police do not exceed the scope of a prior private search when they examine the same materials that were examined by the private searchers, but they examine these materials more thoroughly than did the private parties’). . . .

State v. Pharis, supra. 

Pharis, though, argued that

`[t]he private search exception does not apply to the warrantless search of [his] Dropbox files’ because D.S. acted as an agent of the state. Whether a private person acted as a state agent is “a fact-intensive inquiry that is guided by common law agency principles.”’ State v. Martinez, 221 Ariz. 383, ¶ 14, 212 P.3d 75, 79 (Arizona Court of Appeals 2009) quoting U.S. v. Jarrett, 338 F.3d 339 (U.S.Court of Appeals for the 4th Circuit 2003). The defendant bears the burden of proving a private party acted as a state agent. U.S. v. Ellyson, 326 F.3d 522 (U.S. Court of Appeals for the 4th Circuit 2003); U.S. v. Reed, 15 F.3d 928 (U.S. Court of Appeals for the 9th Circuit 1994).

`When determining whether a party acted as an agent of the state, this court looks to (1) whether the government had knowledge of and acquiesced to the party's actions and (2) the intent of the party.’ State v. Garcia–Navarro, 224 Ariz. 38, 226 P.3d 407 (Arizona Court of Appeals 2010) see also U.S. v. Walther, 652 F.2d 788 (U.S. Court of Appeals for the 9th Circuit 1981). `”If either element of this test is not met, then the private citizen was not acting as a state agent” and any fruit of the citizen's search or seizure may not be suppressed. State v. Garcia–Navarro supra quoting State v. Martinez, supra.

State v. Pharis, supra. 

The Court of Appeals then explained that in applying

the test here, we conclude D.S. was not acting as a state agent. Before the officers arrived, D.S. already had accessed Pharis's Dropbox account, viewed the videos, and downloaded them to her laptop's hard drive. She did so without any state knowledge or acquiescence. See U.S. v. Smythe, 84 F.3d 1240 (U.S. Court ofAppeals for the 10th Circuit 1996) (`[K]nowledge and acquiescence . . .  encompass the requirement that the government agent must also affirmatively encourage, initiate or instigate the private action’). It was only after the officers arrived to D.S.'s residence that they asked her to show them the videos; by that time, D.S.'s private search was already complete. . . .

Moreover, D.S.'s intent shows she was not acting as an agent of the state. D.S. opened Pharis's Dropbox account because she was suspicious of his relationship with S.S., not because she was trying to assist the police. Although her intent arguably changed when she downloaded the videos -- fearing Pharis would delete them from his account -- her initial motivation in the search was nonetheless personal. See U.S. v. Shahid, 117 F.3d 322 (U.S. Court of Appeals for the 7th Circuit 1997) (even though private party may intend to assist law enforcement, he does not become state agent if he has legitimate, independent motivation). . . .  Accordingly, the trial court did not err in concluding D.S. was not acting as a state agent. . . .

State v. Pharis, supra. 
For these and other reasons, the court affirmed Pharis’ convictions and sentence. State v. Pharis, supra.