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State v. Welch

Court of Appeals of Arizona, Second Division

November 14, 2014

THE STATE OF ARIZONA, Appellee,
v.
RICK E. WELCH, Appellant

Page 388

Appeal from the Superior Court in Pima County. No. CR20111934001. The Honorable Richard S. Fields, Judge.

Thomas C. Horne, Arizona Attorney General, Joseph T. Maziarz, Section Chief Counsel, Phoenix, By Amy Pignatella Cain, Assistant Attorney General, Tucson, Counsel for Appellee.

D. Jesse Smith, Tucson, Richard C. Bock, Tucson, Co-counsel for Appellant.

Presiding Judge Kelly authored the opinion of the Court, in which Judge Howard and Judge Vá squez concurred.

OPINION

Page 389

[236 Ariz. 310] KELLY, Presiding Judge

[¶1] Rick Welch appeals his convictions and sentences for five counts of sexual exploitation of a minor under the age of fifteen. He argues the trial court erred by denying his motion to suppress evidence found on his computer, declining to grant a new trial based on juror misconduct, denying his motion for a mistrial based on a detective's testimony, and denying his request for a third-party-culpability jury instruction. He further argues his sentence was " clearly excessive," in violation of the Arizona and United States constitutions. For the following reasons, we affirm.

Factual and Procedural Background

[¶2] We view the evidence in the light most favorable to upholding Welch's convictions and sentences. See State v. Gay, 214 Ariz. 214, ¶ 2, 150 P.3d 787, 790 (App. 2007). In December 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.

[¶3] Welch was indicted on twenty counts of sexual exploitation of a minor under the age of fifteen, all class two felonies. All counts were alleged to be dangerous crimes against children. 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. Welch timely appealed.

Discussion

Motion to Suppress

[¶4] Welch first argues 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 United States and Arizona constitutions. We review the court's ruling on a motion to suppress for an abuse of discretion. State v. Jacot, 235 Ariz. 224, ¶ 9, [236 Ariz. 311]

Page 390

330 P.3d 981, 984 (App. 2014). We defer to the court's factual findings, id., but review de novo its legal conclusions, State v. Newell, 212 Ariz. 389, ¶ 27, 132 P.3d 833, 841 (2006). We will not disturb the court's ruling " 'absent a clear abuse of its considerable discretion.'" State v. Davis, 205 Ariz. 174, ¶ 23, 68 P.3d 127, 131 (App. 2002), quoting State v. Alatorre, 191 Ariz. 208, ¶ 7, 953 P.2d 1261, 1264 (App. 1998). When reviewing the denial of a motion to suppress, we consider only the evidence presented at the suppression hearing and view it in the light most favorable to upholding the court's ruling. State v. Caraveo, 222 Ariz. 228, n.1, 213 P.3d 377, 378 n.1 (App. 2009).

[¶5] At the hearing, 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.

[¶6] Welch argued to the trial court 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 Fourth 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 Welch had waived his expectation of privacy by using " a shared file index that anybody could access."

[¶7] On appeal, Welch maintains 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.[1] 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 and 14th Amendments" to the constitution " as well as Article II Section 8 of the Arizona Constitution."

[¶8] The Fourth Amendment and its Arizona counterpart protect against unreasonable searches and seizures, and generally require " suppression at trial of any evidence directly or indirectly gained as a result of the violation." State v. Allen, 216 Ariz. 320, ¶ 9, 166 P.3d 111, 114 (App. 2007); see also Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). A " search" under the Fourth Amendment occurs " when an expectation of privacy that society is prepared to consider reasonable is infringed." United States v. Jacobsen, 466 U.S. 109, 113, 104 ...


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