Opinion
No. 2 CA-CR 2018-0018
03-06-2019
THE STATE OF ARIZONA, Appellee, v. KIMBALL WAYNE HOFF, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Diane Leigh Hunt, Assistant Attorney General, Tucson Counsel for Appellee Roach Law Firm L.L.C., Tucson By Brad Roach Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e). Appeal from the Superior Court in Pima County
No. CR20154468001
The Honorable Howard Fell, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Diane Leigh Hunt, Assistant Attorney General, Tucson
Counsel for Appellee Roach Law Firm L.L.C., Tucson
By Brad Roach
Counsel for Appellant
MEMORANDUM DECISION
Judge Vásquez authored the decision of the Court, in which Presiding Judge Staring and Judge Brearcliffe concurred. VÁSQUEZ, Judge:
¶1 After a jury trial, Kimball Hoff was convicted of twenty counts of sexual exploitation of a minor under fifteen. For each count, the trial court imposed a consecutive, presumptive, seventeen-year prison term. On appeal, Hoff contends the court erred by denying his motion to suppress evidence seized from his home because the warrant that had authorized the search was not based on probable cause. For the reasons stated below, we affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to affirming Hoff's convictions. See State v. Miles, 211 Ariz. 475, ¶ 2 (App. 2005). In October 2015, based on a tip from the Internet Crimes Against Children Task Force, officers began investigating an IP (Internet Protocol) address that "appeared to have . . . numerous instances of possession or distribution of child pornography." Officers determined that the IP address was registered to Hoff's residence and proceeded there to interview him in a manner known as a "knock and talk." After speaking to Hoff for about thirty minutes, the officers applied for a search warrant. The search-warrant affidavit included various statements made by Hoff during the knock and talk, including that he had "a good knowledge of computers," that he ran certain computer programs, that he had changed internet service providers because he was being charged "for exceeding bandwidth caps," that he "doesn't go looking for [child pornography]" but "it 'pops up all the time' when looking for something else," and that "in the last 3 months he ha[d] probably seen and deleted [child pornography] 'three or four or five times.'"
According to one of the officers who testified at trial, "An IP address is an address of a device that's connected to the internet. It's similar to your house address. . . . When you send an email . . . or any other message on the internet, there are routers . . . that act[] like a postman that deliver[] those messages." --------
¶3 The search warrant was issued and executed the same day. When officers arrived at Hoff's residence, he was sitting at a desk with a computer that had a "wiping process being run." Officers seized various electronic devices, including hard drives and servers. On one of those drives, an agent specializing in digital forensics found the twenty files containing the images for which Hoff was ultimately indicted in this case.
¶4 Before trial, Hoff filed a motion to dismiss, arguing in part that his "ability to challenge the search warrant" had been "crippled" by the state's failure to preserve information related to "some sort of investigative computer tool that allegedly accessed certain files from [his] computer and revealed the associated IP address." Specifically, he relied on statements in the search-warrant affidavit that indicated officers had used a "peer-to-peer investigative tool." In response, the state argued its investigation "did not involve the use of software, so the motion is moot." However, the state conceded that "[t]he search warrant affidavit should be amended" because it mistakenly included "background information about . . . peer-to-peer investigations." It explained that the affiant had "copied [that information] from another affidavit in an attempt to be efficient."
¶5 At a March 2017 hearing, the trial court recognized that, consistent with the state's concession, it needed to strike the first four paragraphs of the "Investigation" section from the affidavit and determine whether the remaining information supported a finding of probable cause. Hoff requested additional time to file a motion to suppress on that issue. The court granted his request and reset the hearing to May.
¶6 Shortly thereafter, Hoff filed a motion to suppress, arguing that, after revising the affidavit, the remaining information, which consisted largely of his statements made during the knock and talk, was "insufficient to constitute probable cause." Hoff characterized his statements as falling in two categories: "his knowledge of computers and use of particular software" and "child pornography." He argued the former statements were "innocuous" and "reasonable." As for the latter, Hoff recognized he had admitted that "child pornography sometimes 'pops up' [on his computer]," but he maintained those statements did not support a finding of probable cause because he did not "intentionally seek [it] out . . . , nor maintain it."
¶7 At the May 2017 hearing, the parties agreed to submit the issue on their motions. The trial court found "the information contained in the [affidavit] was sufficient" and "there was probable cause to believe that a crime was committed." It therefore denied the motion to suppress. Hoff was subsequently convicted as charged and sentenced as described above. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
Discussion
¶8 Hoff argues the trial court erred by denying his motion to suppress evidence. He maintains the search warrant used to obtain the evidence was "invalid" because the affidavit "did not support [a] finding of probable cause." We review the denial of a motion to suppress for a clear abuse of discretion. State v. Crowley, 202 Ariz. 80, ¶ 7 (App. 2002). However, we review de novo questions of law, including whether the facts in a search-warrant affidavit establish probable cause. State v. Buccini, 167 Ariz. 550, 555 (1991); see Frimmel v. Sanders, 236 Ariz. 232, ¶ 25 (App. 2014).
¶9 Generally, any residential search must be authorized by a search warrant that is supported by probable cause. See U.S. Const. amend. IV; see also A.R.S. § 13-3913; State v. Hyde, 186 Ariz. 252, 268 (1996). "Probable cause exists when the facts known to a police officer 'would warrant a person of reasonable caution in the belief that contraband or evidence of a crime is present.'" State v. Sisco, 239 Ariz. 532, ¶ 8 (2016) (quoting Florida v. Harris, 568 U.S. 237, 243 (2013)); see also Buccini, 167 Ariz. at 556 (probable cause exists where reasonably prudent person would be justified in concluding items sought are connected with criminal activity and will be found at place to be searched). The probable cause standard is a "practical, nontechnical conception," dealing with "probabilities." Illinois v. Gates, 462 U.S. 213, 231 (1983) (quoting Brinegar v. United States, 338 U.S. 160, 175-76 (1949)). "[P]robable cause is determined by the totality of the circumstances." Sisco, 239 Ariz. 532, ¶ 18; see Gates, 462 U.S. at 238.
¶10 As an initial matter, Hoff seems to suggest that this case is controlled by Franks v. Delaware, 438 U.S. 154 (1978). Under Franks, "a defendant is entitled to a hearing to challenge a search-warrant affidavit when he shows (1) that the affiant knowingly, intentionally, or with reckless disregard for the truth included a false statement in the affidavit, and (2) the false statement was necessary to the finding of probable cause." Buccini, 167 Ariz. at 554. Because the trial court excised the background information from the affidavit, Hoff reasons that the court, "at least by implication," found the affidavit included "false or misleading statements [that] were either made knowingly or intentionally, or with reckless disregard for the truth." We disagree.
¶11 Although the trial court found that the background information in the affidavit "wasn't accurate," as the state had conceded, it excised that information without also finding that its inclusion was done knowingly, intentionally, or with reckless disregard for the truth. This case is therefore distinguishable from Franks, where the veracity of the officers' statements in the search-warrant affidavit was at issue. 438 U.S. at 157-58.
¶12 Hoff also argues that Gates and the totality-of-the-circumstances test does not apply. He contends that the totality-of-the-circumstances test applies "only in situations involving confidential informants." Although Hoff correctly points out that Gates, unlike this case, involved the use of a confidential informant, 462 U.S. at 217, the general concepts addressed in that case—including the totality-of-the circumstances test—nonetheless apply here, see Crowley, 202 Ariz. 80, ¶ 13. See also Sisco, 239 Ariz. 532, ¶¶ 2-3, 8, 18, 29 (applying Gates and totality of circumstances in case where warrant was obtained "[b]ased on the odor of marijuana"); State v. Edwards, 154 Ariz. 8, 12 (App. 1986) (citing Gates for proposition that affidavits interpreted in "commonsensical and realistic manner, looking at the totality of the circumstances").
¶13 Turning to the affidavit in this case, after excising the first four paragraphs of the "Investigation" section as the trial court did and focusing on the statements made by Hoff during the knock and talk, probable cause existed to support issuance of the search warrant. See Buccini, 167 Ariz. at 555; see also Frimmel, 236 Ariz. 232, ¶ 25. Hoff's statements concerning child pornography—specifically that it "pops up" on his computer "all the time" and "frequently" and that he had within the past three months deleted it "three or four or five times"—would justify a reasonably prudent person to believe that contraband or evidence of a crime would be found. See Sisco, 239 Ariz. 532, ¶ 8; see also Buccini, 167 Ariz. at 556. Notably, Hoff does not dispute making those statements.
¶14 Hoff, nevertheless, challenges the "paraphrased and abridged version of what [he] actually said" during the knock and talk, arguing that the "fragments" of his statements included in the affidavit are "misleading" and should be "discounted entirely" or "carr[y] very little weight in the determination of probable cause." But this argument is waived because Hoff failed to raise it below or to argue on appeal that fundamental, prejudicial error occurred, and we find no such error. See State v. Escalante, 245 Ariz. 135, ¶ 12 (2018); see also State v. Moreno-Medrano, 218 Ariz. 349, ¶ 17 (App. 2008).
¶15 Even assuming the argument were not waived, however, the only legal authority Hoff cites to support it is the rule of lenity, under which he maintains we must construe any "ambiguity created by the officer's conduct in drafting the Affidavit . . . i[n] favor of [him]." But the rule of lenity applies to issues of statutory interpretation, not probable-cause determinations. See State v. Fell, 203 Ariz. 186, ¶ 10 (App. 2002) (rule of lenity "applies when a statute is ambiguous and dictates that any doubt about statutory construction be resolved in favor of a defendant"). Moreover, we fail to see how any of Hoff's statements in context, even if not complete sentences, are ambiguous. Cf. Buccini, 167 Ariz. at 558 (under Franks, "doubtful or marginal case" resolved in defendant's favor) (quoting United States v. Ventresca, 380 U.S. 102, 107 (1965)). Accordingly, the trial court did not abuse its discretion by denying the motion to suppress. See Crowley, 202 Ariz. 80, ¶ 7.
Disposition
¶16 For the reasons stated above, we affirm Hoff's convictions and sentences.