The Fourth Amendment, File-sharing and Sexual Exploitation of a Minor

After Rick Welsh was convicted of, and sentenced for, “five counts of sexual exploitation of a minor under the age of fifteen” in violation of Arizona law, he appealed.  State v. Welch, 2014 WL 6092867 (Court of Appeals of Arizona 2014).  On appeal, he argued, among other things, that “the trial court erred by denying his motion to suppress evidence obtained from his computer without a warrant, claiming its acquisition violated his rights” under the 4^th Amendment to the U.S. Constitution.  State v. Welch, supra.  

As the Court of Appeals noted, the case arose after, in December of 2010,

Tucson Police Department Detectives Dan Barry and Steve Sussen, as part of a police training seminar, found `files of interest’—images or videos potentially related to child pornography—while browsing a shared computer network to which Welch belonged. They obtained a search warrant and seized Welch's computer, modem, external hard drive, cell phone, and computer discs (CDs). The seized items contained graphic images of child pornography.

Welch was indicted on twenty counts of sexual exploitation of a minor under the age of fifteen, all class two felonies. . . . Following a six-day trial, a jury convicted Welch of five of the counts and determined the state had proved beyond a reasonable doubt that the offenses were dangerous crimes against children. The trial court sentenced him to consecutive, minimum prison terms of ten years for each count.

State v. Welch, supra.  

Prior to trial, the trial judge held a hearing on Welch’s motion to suppress, at which

Sussen testified that he and Barry had detected files on Welch's computer while being trained to conduct investigations into possible child pornography. As part of their training, the detectives browsed peer-to-peer file sharing networks, where people on the network could request, access, and share files through direct connections to other computers connected to the network.

Using the images' secure hash algorithm values, or `SHA values,’ which are essentially `digital fingerprint[s]’ for each image, the detectives learned that Welch's file list—holding over a thousand files—contained eleven `files of interest,’ meaning they were `associated with child pornography.’

After serving a search warrant or subpoena on the internet provider, the detectives determined the internet protocol (IP) address for the computer containing the files was associated with Welch's residence.

State v. Welch, supra.  

At that same hearing, Welch claimed

that the officers had conducted a warrantless search into his computer—to which Welch had a `reasonable expectation of privacy’—and `used what they found to get the search warrant in this case,’ which is a “transparent violation of the 4^th Amendment.’ He characterized the initial investigation as an `electronic intrusion into his house by the police without a warrant’ and stated the electronic search was equivalent to physically entering his personal computer to obtain the files.

But, in response to the court's question of whether a peer-to-peer network `kind of puts it out there for anybody that wants to see it,’ Welch responded in the affirmative. The court denied Welch's motion to suppress the files, stating that had waived his expectation of privacy by using `a shared file index that anybody could access.’

State v. Welch, supra.  In Katz v. U.S., 389 U.S.347 (1967), the U.S. Supreme Court held that a “search” occurs under the 4^th Amendment when officers violate someone’s “reasonable expectation of privacy” in a place or thing.

In his appeal, Welch argued that

`”browsing files” on a person's computer contained within[ ] the four walls of their home requires a warrant.’ He further insists that because he `had set his computer so others could not download files from his computer’ and `his identity and that of his computer and it[s] location was not disclosed to the public,’ he had a reasonable expectation of privacy in its contents.

The detectives, he urges, `should have sought and obtained a warrant prior to ‘browsing [his] files' and using that information to obtain a search warrant. Welch argues that the `warrantless intrusion into [his] computer violated the 4th [Amendment].’

State v. Welch, supra.  

The issue in the case was whether “Welch had a reasonable expectation of privacy in his shared computer files.”  State v. Welch, supra.  It noted that in U.S. v. Ganoe, 538 F.3d 1117 (U.S. Court of Appeals for the 9^th Circuit 2008),

the court determined the defendant lacked a reasonable expectation of privacy in the downloaded files stored on his computer via file-sharing software. Like Welch, Ganoe argued that police had conducted an illegal, warrantless search of his computer by using his file sharing program to access child pornography files on his computer. U.S. v. Ganoe, supra.

The court held that although an individual generally has `an objectively reasonable expectation of privacy in his personal computer,’ it did not agree that this `expectation can survive Ganoe's decision to install and use file-sharing software, thereby opening his computer to anyone else with the same freely available program.’ U.S. v. Ganoe, supra.

Because Ganoe knew he had file sharing software on his computer, and knew his files would be shared with other users of the peer-to-peer network, he had `failed to demonstrate an expectation of privacy that society is prepared to accept as reasonable” and therefore could not invoke 4^th Amendment protections.’ U.S. v. Ganoe, supra.

State v. Welch, supra.  

The Arizona Court of Appeals found

this reasoning applicable here. Sussen testified that to detect the files of interest on the shared network, network users merely had to conduct a key-word search to find a list of potential hosts for a file and then connect directly to that computer to view the file. He stated the files on Welch's computer were available to `[p]otentially anyone using his network’ and that he `simply looked at that folder’ to get a `list of his files.’

When asked whether `a random member of the public searching on the [peer-to-peer] network on the same date and time’ could have viewed Welch's shared folders, Sussen replied, `That potential is there, yes, if they search for that file name.’ Sussen further testified that peer-to-peer network users are informed of

`the number of times [they will] be sharing this folder. So it's not a surprise when you have a shared folder and sharing files. And whatever is in that share[d] folder is visible to anyone on the ... network. So if you're looking for a particular key word, and you have a file that matches that, it can show up to anybody out there.’

Sussen thus testified Welch necessarily was aware of the file sharing software on his computer and knew that others on the network would be able to view his files.

We therefore conclude that Welch, by knowingly using a file sharing network, maintained no reasonable expectation of privacy in the files accessible on that network. The trial court did not err by denying his motion to suppress evidence obtained from his computer pursuant to the search warrant.

State v. Welch, supra.  

Welch also argued, on appeal, that his sentence

of fifty years' imprisonment was `clearly excessive’ and in violation of the 8th Amendment's ban on cruel and unusual punishment. Welch was sentenced pursuant to Arizona Revised Statues § 13–705, which prescribes sentences for defendants convicted of committing dangerous crimes against children. Subsection (P)(1)(g) of that section lists `[s]exual exploitation of a minor’ as a dangerous crime against children.

A person convicted of a dangerous crime against children involving sexual exploitation of a minor must be sentenced to a minimum term of ten years' imprisonment. § 13–705(D). A sentence imposed pursuant to § 13–705(D) for a dangerous crime against children in the first or second degree `shall be consecutive to any other sentence imposed on the person at any time, including child molestation.’ § 13–705(M).

State v. Welch, supra.  

The Court of Appeals found that

[b]ecause Welch was convicted of five counts of sexual exploitation of a minor, which are dangerous crimes against children, he was sentenced to the minimum term of fifty years' imprisonment. Welch urges this sentence `established an inference of gross disproportionality’ and—`in the event his convictions are not reversed’—urges us to reduce his sentence or, in the alternative, vacate his sentence and remand the case for resentencing. `We will not disturb a sentence that is within the statutory range absent an abuse of the trial court's discretion.’ State v. Joyner, 215 Ariz. 134, 158 P.3d 263 (Arizona Court of Appeals 2007). We review de novo whether a sentence constitutes cruel and unusual punishment. State v. Kasic, 228 Ariz. 228, 265 P.3d 410 (Arizona Court of Appeals 2011)

State v. Welch, supra.           

As the court explained, the 8th Amendment to the U.S. Constitution

prohibits `cruel and unusual punishments.’ In a noncapital setting, this `includes not only punishment that historically has been considered barbaric, but also sentences that are grossly disproportionate to the crime committed.' State v. Kasic, supra, citing Solem v. Helm, 463 U.S. 277 (1983). When considering whether a sentence is excessive, a court “first determines if there is a threshold showing of gross disproportionality by comparing “`the gravity of the offense [and] the harshness of the penalty.’” State v. Berger, 212 Ariz. 473, 134 P.3d 378 (Arizona Supreme Court 2006), quoting Ewing v. California, 538 U.S. 11 (2003). . . . `If this comparison leads to an inference of gross disproportionality, [we] then test[ ] that inference by considering the sentences the state imposes on other crimes and the sentences other states impose for the same crime.’ State v. Berger, supra.

State v. Welch, supra.  

The Court of Appeals then applied these standards to the fact in this case, noting that

[a]s Welch acknowledges, our supreme court previously has addressed whether the mandatory sentences for those convicted of sexual exploitation of a minor violate the 8th Amendment's ban on the infliction of cruel and unusual punishments. In Berger, the defendant was convicted of twenty counts of sexual exploitation of a minor under the age of fifteen. State v. Berger, supra. The trial court sentenced him to a ten-year prison term, the minimum sentence, for each of the twenty counts, totaling 200 years' imprisonment. State v. Berger, supra.

Applying the two-part framework enumerated above, our supreme court upheld the sentences, finding that a ten-year prison term is not grossly disproportionate to the offense. . . . In doing so, the court noted that the 8th Amendment analysis focuses on the sentence for each offense individually and not on the cumulative sentence for all the offenses. . . . The court concluded that twenty consecutive ten-year sentences imposed on a defendant found guilty of twenty counts of sexual exploitation of a minor was not grossly disproportionate to the crimes and thus did not violate the 8th Amendment. . . .

State v. Welch, supra.  

It therefore held that “[b]ecause we are bound by the decisions of our supreme court, we conclude Welch's sentences were not `clearly excessive’ in violation of the ban on cruel and unusual punishment.”  State v. Welch, supra.