State v. Tolworthy

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

THOMAS TOLWORTHY, Appellant.

No. 1 CA-CR 21-0330
FILED 8-16-2022

Appeal from the Superior Court in Maricopa County
No. CR2018-001320-001
The Honorable Glenn A. Allen, Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Alice Jones
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Robert W. Doyle
Counsel for Appellant
 STATE v. TOLWORTHY
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Maria Elena Cruz delivered the decision of the Court, in
which Judge Angela K. Paton and Judge Peter B. Swann joined.

C R U Z, Judge:

¶1 Thomas Tolworthy appeals his convictions and sentences for
ten counts of sexual exploitation of a minor, class two felonies and
dangerous crimes against children. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 BitTorrent is a peer-to-peer computer network used to “trade
files back and forth from one computer to the next” over the internet.
Typically, a person with the proper software inputs a search term, and other
computers connected to BitTorrent that have files satisfying the search
parameters transmit those files to a designated folder in the person’s
computer. Only after a file is downloaded is the person who searched for
the file able to view it.

¶3 The Internet Crimes Against Children Task Force (“ICAC”)
uses “undercover” software “that go[es] out and actively search[es] those
peer-to-peer networks for individuals who are possessing and making
available for distribution known images or files that contain sexually
exploitive material of children.” In February 2015, the ICAC “obtained
some downloads” of child pornography from an internet protocol (“IP”)
address that used a peer-to-peer network program called Torrent. After
further investigation, Detective Snyder of the ICAC learned that the IP
address was assigned to a residence in Mesa. Detective Snyder then
obtained a search warrant for the home.

¶4 On April 30, 2015, police officers served the warrant and
found no evidence of illegal activity on the electronic devices they located
there. When officers asked the homeowner whether anyone else had access
to his home’s secured Wi-Fi connection, he explained that his cousin,
Tolworthy, had relocated from Texas and stayed with him in February 2015
until he moved into his own residence. Although the homeowner
described Tolworthy as primarily using a laptop computer, he told police
that Tolworthy left a desktop computer “boxed up” in the garage when he

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moved to his new home. It appears from the record that Tolworthy’s
desktop was not at the homeowner’s residence when the warrant was
served.

¶5 Detective Snyder immediately coordinated a confrontation
call between the homeowner and Tolworthy. During that call, Tolworthy
acknowledged seeing child pornography on his laptop computer in
February, but he explained the laptop had a virus, and Google “redirected”
him to a website containing the image. Tolworthy denied downloading
anything “inappropriate,” but he admitted he did not delete the image as
he “should have.” Tolworthy also confirmed he was familiar with Torrent
software, and it was installed on his laptop. Finally, Tolworthy explained
that he installed a new operating system on his laptop the previous night
and “everything . . . will be gone.”

¶6 Based on Tolworthy’s admissions, and knowing that a virus
or a Google search do not typically redirect innocent computer users to
illicit sexual images of children, Detective Snyder obtained a search warrant
for Tolworthy’s home. Upon executing the warrant and searching a
desktop computer and external hard drives, police found a “very
significant amount” of pornographic images depicting children. The search
also revealed that Torrent software was installed on the devices and used
to search and download the images. The recently-updated laptop
contained no pornographic images of children.

¶7 The State charged Tolworthy with ten counts of sexual
exploitation of a minor.1 See Arizona Revised Statutes (“A.R.S.”) section 13-
3553(A)(2) (“A person commits sexual exploitation of a minor by
knowingly . . . electronically transmitting[ or] possessing . . . any visual
depiction in which a minor is engaged in exploitive exhibition or other
sexual conduct.”). Before trial, Tolworthy moved to suppress the evidence
obtained pursuant to the search warrants. The superior court held an
evidentiary hearing on the motion and denied it. At the conclusion of trial,
the jury returned guilty verdicts, and the court imposed presumptive 17-
year consecutive sentences. Tolworthy timely appealed. We have
jurisdiction under A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A).

1 One count of sexual conduct with a minor was severed from the
sexual exploitation counts before trial.

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DISCUSSION

¶8 Tolworthy challenges the superior court’s denial of his
motion to suppress, arguing the search warrant for his residence was
defective in two respects. First, he asserts the warrant lacked sufficient
particularity because it allowed “virtually every single item in the home
capable of storing any kind of computer information [to be searched for]
. . . any and all files.”

¶9 We review the denial of a motion to suppress for an abuse of
discretion; however, we review constitutional issues and purely legal issues
de novo. State v. Dean, 241 Ariz. 387, 389, ¶ 4 (App. 2017). “We consider
only ‘evidence presented at the suppression hearing and view the facts in
the light most favorable to sustaining the trial court’s ruling.’” Id. at 388,
¶ 2 (quoting Brown v. McClennen, 239 Ariz. 521, 523, ¶ 4 (2016)).

¶10 The Fourth Amendment requires a search warrant to
“particularly describ[e] the place to be searched, and the persons or things
to be seized.” State v. Ray, 185 Ariz. 89, 92 (App. 1995) (quoting U.S. Const.
amend. IV). The “particularity requirement . . . prevents the government
from utilizing broad language in a search warrant so as to effectuate
general, exploratory searches and seizures.” Id. “When deciding whether
a warrant is too general, the trial court must consider the nature of the
property sought to be recovered.” Id. at 93.

¶11 Here, the search warrant was sufficiently particularized to
prevent a “general, exploratory” search. Although the warrant listed a
multitude of electronic devices, Detective Snyder testified at the
suppression hearing that sexual exploiters of children will commonly
download and possess images on multiple electronic devices. Specifically,
he testified that such offenders commonly download illicit material to one
device and transfer it to another “secondary device.” Thus, at the time the
search warrant was issued—over two months after the ICAC first obtained
the BitTorrent files in this case—“there was no way to know where the
offending images had been stored.” U.S. v. Banks, 556 F.3d 967, 973 (9th Cir.
2009). A more specific description of the electronic items was not required.
Id.

¶12 As for “any and all” digital files permitted by the warrant to
be seized, the warrant was properly limited to evidence pertaining to the
sexual exploitation of children. See id. (in a child pornography case
involving digital files, warrant that limited search to items depicting
“minors engaged in sexually explicit conduct” was “sufficiently particular

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to overcome [defendant’s] argument that the items to be seized were not
specifically identified.”). We summarily reject Tolworthy’s apparent
contention that the search warrant should have been limited to the files the
ICAC obtained in February 2015. See id. (“Although the government may
have known the name of certain files that supported the finding of probable
cause, there is no requirement that the warrant be tailored to obtain only
that evidence already known to exist.”).

¶13 Regarding his second challenge to the search warrant,
Tolworthy argues police lacked probable cause to search his desktop
computer because police knew the device was not connected to the internet
in February 2015 when he lived with his cousin. See U.S. Const. amend. IV
(requiring probable cause to issue search warrant). Thus, according to
Tolworthy, “there was no fair probability that evidence of a crime would
be found on that computer device.”

¶14 In determining whether probable cause exists to issue a
search warrant, a magistrate must “make a practical, common-sense
decision whether, given all the circumstances set forth in the affidavit
before him, . . . there is a fair probability that contraband or evidence of a
crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238
(1983) (affirming totality-of-the-circumstances analysis of determining
whether probable cause exists under the Fourth Amendment). It is the
superior court’s duty, when asked to review a search warrant’s propriety,
“to ensure that the magistrate had a ‘substantial basis for . . . conclud[ing]’
that probable cause existed.” Id. at 238-39 (alterations in original) (citation
omitted). In doing so, the court must presume the search warrant was valid
and hold the defendant to his burden to prove its invalidity. See State v.
Crowley, 202 Ariz. 80, 83, ¶ 7 (App. 2002); see also State v. Ault, 150 Ariz. 459,
467 (1986) (“Doubtful or marginal affidavits should be considered in light
of the preference of validity accorded search warrants.”) (citation omitted).

¶15 Tolworthy fails to establish a lack of probable cause to search
his desktop computer. Given that the desktop computer was not present
when police searched Tolworthy’s cousin’s residence, one could reasonably
conclude that Tolworthy had at some point returned to his cousin’s home
to pick it up. And, as noted, Detective Snyder testified at the suppression
hearing that sexual exploitive material is commonly downloaded on one
device and transferred to another. Accordingly, even assuming the desktop
was “boxed up” during Tolworthy’s entire stay at his cousin’s house, the
superior court could properly conclude that a substantial basis nonetheless
existed to find that Tolworthy probably transferred child pornography to
his desktop computer at some point after moving to his new home. Further,

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during the confrontation call, police learned Tolworthy had recently
“wiped his laptop” by installing a new operating system on it. That fact
supports an inference that Tolworthy likely transferred illicit material from
the laptop to his desktop before the laptop’s upgrade to surreptitiously
maintain the illegal files.

¶16 For these reasons, the superior court’s denial of Tolworthy’s
motion to suppress was not an abuse of discretion.

CONCLUSION

¶17 We affirm.

AMY M. WOOD • Clerk of the Court
FILED: AA

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