State of Arizona v. Whytte Dragun Duncan

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO

THE STATE OF ARIZONA,
Appellee,

v.

WHYTTE DRAGUN DUNCAN,
Appellant.

No. 2 CA-CR 2022-0090
Filed April 19, 2024

Appeal from the Superior Court in Pima County
No. CR20195676001
The Honorable James E. Marner, Judge

REVERSED AND REMANDED

COUNSEL

Kristin K. Mayes, Arizona Attorney General
Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals
By Jacob R. Lines, Assistant Attorney General, Tucson
Counsel for Appellee

Sherick Law Office P.C., Tucson
By Steven P. Sherick

and

Adam N. Bleier P.C., Tucson
By Adam N. Bleier
Counsel for Appellant
 STATE v. DUNCAN
Opinion of the Court

OPINION

Judge Eckerstrom authored the opinion of the Court, in which Presiding
Judge Brearcliffe and Judge Kelly concurred.

E C K E R S T R O M, Judge:

Whytte Duncan placed a spy camera in a bathroom to secretly
record the teenaged foster daughters living in his house. He appeals his
convictions and sentences arising from that conduct. Specifically, Duncan
challenges the factual and legal sufficiency of his convictions for attempted
or completed sexual exploitation of a minor, as well as the trial court’s
denial of his motion to suppress. We reject his sufficiency arguments.
However, because the court erred in part in denying Duncan’s motion to
suppress, and because the state has failed to establish that the error was
harmless as to any of the counts, we reverse Duncan’s convictions and
sentences and remand for a new trial.

Factual and Procedural Background

We view the facts, most of which are undisputed, in the light
most favorable to upholding the jury’s verdicts, resolving all reasonable
inferences against the defendant. See State v. Hood, 251 Ariz. 57, n.1 (App.
2021). In 2017 and 2018, Duncan placed a USB wall charger containing a
hidden digital video recorder in one of the two bathrooms in his house. The
camera in the device captured videos from a fixed position of female foster
children undressing, showering, and sitting on the toilet.

One night in mid-2018, one of those foster children—
sixteen-year-old K.K.—examined the charger device and realized it
contained a hidden camera. She removed the camera’s micro secure data
card (“SD card”) and attempted to view its contents on her tablet, without
success. She called her Department of Child Safety (“DCS”) caseworker,
reporting that she believed she had found a camera in her bathroom and
was “very concerned about it.” She then left the house, taking the device—
complete with camera and SD card—with her. She gave it to her
caseworker later that day. DCS called the police and turned the device over
to the responding patrol officer.

Seven days later, Detective Dan Barry of the Tucson Police
Department examined the device. He first removed the SD card and placed

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Opinion of the Court
it into a “write-blocking device,” which allowed him to view the contents
of the card without writing any data onto it. This revealed videos taken in
the bathroom at Duncan’s house, including of K.K. showering and using
the toilet. Barry then used forensic software to view deleted files in the SD
card’s “unallocated” space, which also contained videos of K.K. in the
bathroom. Barry had not obtained a warrant to conduct this search.

The discovery of the videos led to a forensic interview of K.K.
and the issuance of a search warrant for Duncan’s home. The search led to
the discovery on his cell phone of nude and semi-nude images of K.K. and
two additional foster children who had previously lived at Duncan’s house:
K.M, who had been under fifteen years old at the time, and J.D. Most of the
images appeared to be still screenshots or snapshots derived from videos
captured in the bathroom where K.K. had found the spy camera.

A grand jury charged Duncan with thirty counts. The first
nine involved attempted or completed sexual exploitation of a minor, K.K.1
Counts one through four were based on the deleted videos Detective Barry
retrieved from the unallocated space on the SD card in Duncan’s spy
camera using the forensic software. Counts five through nine were based
on the videos he found in the allocated space on the SD card. The remaining
counts were based on the images found on other electronic devices during
the search of Duncan’s residence. Counts ten through twenty-seven
charged sexual exploitation of a minor 2 —K.K., K.M., and J.D.—with the
three involving K.M. alleging that the victim had been under fifteen years
old at the time each crime was committed. The final three counts alleged
surreptitious photographing, videotaping, filming, or digitally recording or
viewing of J.D. after she was no longer a minor.

At the conclusion of a four-day trial, a jury found Duncan
guilty as charged.3 Duncan filed a motion requesting a new trial, which the
trial court denied after a hearing. The court then sentenced Duncan to

1 The six counts of attempted sexual exploitation of a minor were

charged in the alternative as surreptitious photographing, videotaping,
filming, or digitally recording or viewing.
2 The trial court dismissed one of these counts before trial, on the

state’s motion.
3After the jury returned its verdicts finding Duncan guilty of the six

charged counts of attempted sexual exploitation of a minor, K.K., the trial
court granted the state’s motion to dismiss without prejudice the six
alternative counts of surreptitious recording.

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Opinion of the Court
consecutive and concurrent prison terms totaling 90.5 years. This appeal
followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1),
13-4031, and 13-4033(A).

Sexual Exploitation Charges

Duncan challenges both the factual and legal sufficiency of his
twenty-six convictions for attempted or completed sexual exploitation of a
minor.4 Quoting A.R.S. § 13-3551(5), he contends there was “insufficient
evidence presented at trial that the images were made ‘for the purposes of
sexual stimulation.’” He also argues that the sexual exploitation statute,
A.R.S. § 13-3553(A)(1)-(2)—when combined with the definition of
“exploitive exhibition” established at § 13-3551(5)—is impermissibly
“overbroad as applied to the facts of this case because it does not meet the
constitutional threshold required for the recording or the possession of
child pornography.”

Factual Sufficiency

At trial, after the presentation of all evidence, Duncan moved
for a judgment of acquittal under Rule 20(a), Ariz. R. Crim. P. Finding that
the state had presented substantial evidence for convictions on all
twenty-nine counts, the trial court denied the motion.

On appeal, Duncan contends “the state failed to present
suff[i]cient factual evidence to convict [him] of attempted or completed acts
of sexual exploitation of a minor.” Sufficiency of the evidence is a question
of law requiring de novo review. State v. West, 226 Ariz. 559, ¶ 15 (2011).
Viewing the evidence in the light most favorable to sustaining the jury’s
verdicts, and resolving all inferences against the defendant, we must
determine whether the state presented evidence that “reasonable persons
could accept as sufficient to support a conclusion of a defendant’s guilt
beyond a reasonable doubt.” State v. Spears, 184 Ariz. 277, 290 (1996). In so
doing, we may not “reweigh evidence or reassess the witnesses’
credibility.” State v. Buccheri-Bianca, 233 Ariz. 324, ¶ 38 (App. 2013). If
jurors could reasonably differ as to whether the evidence establishes the
necessary facts, that evidence is sufficient as a matter of law. See State v.
Davolt, 207 Ariz. 191, ¶ 87 (2004).

4On appeal, Duncan does not raise these challenges with regard to

his three convictions for surreptitious photographing, videotaping, filming,
or digitally recording or viewing of an adult, J.D.

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Opinion of the Court
We test the sufficiency of the evidence against the statutorily
required elements of the offense. State v. Pena, 209 Ariz. 503, ¶ 8 (App.
2005). Here, the state bore the burden of presenting evidence sufficient for
a rational jury to conclude, beyond a reasonable doubt, that Duncan
knowingly recorded, filmed, photographed, duplicated, electronically
transmitted, or possessed “any visual depiction” of a minor engaged in
“exploitive exhibition,” § 13-3553(A)(1)-(2), which means “the actual or
simulated exhibition of the genitals or pubic or rectal areas of any person
for the purpose of sexual stimulation of the viewer,” § 13-3551(5). As we
have explained, this language “means that the viewer intends the [video or]
photograph be used for sexual stimulation, rather than that the minor
intends to sexually stimulate the viewer.” State v. Chandler, 244 Ariz. 336,
¶ 7 (App. 2017).

Duncan contends there was “insufficient evidence of [his]
sexual intent.” We cannot agree.5

The jury saw a photograph of the relevant bathroom in
Duncan’s house, including where the charger device was placed, across
from the shower. K.K. testified that, before she discovered that the device
was a hidden camera, she would “constantly move it out of the bathroom
and charge it somewhere else or put it on [Duncan’s] desk,” but when she
“would go back the next time, it would be in the bathroom again.” Duncan
told her to leave it in the bathroom or there would be consequences. K.K.
also explained that, after she realized the device was a camera and fled the
house with it, Duncan texted her asking where it was.

Detective Barry testified that the spy camera could be
connected to other devices and controlled using a cell phone. The jury

5As discussed below, we conclude the trial court erred in denying

Duncan’s motion to suppress the evidence gathered during the warrantless
search of his charger device and the SD card it contained. We therefore
confine our assessment of the factual sufficiency to the evidence gathered
separately from that warrantless search. Our determination that such
evidence was sufficient to allow reasonable jurors to find Duncan guilty of
attempted and completed acts of sexual exploitation of a minor is a separate
consideration from whether the state has carried its burden to establish that
the court’s partial error in denying the motion to suppress “was harmless
by presenting overwhelming evidence of [Duncan]’s guilt.” State v.
Sanchez-Equihua, 235 Ariz. 54, ¶ 28 (App. 2014) (state’s conclusory
harmlessness argument insufficient where “evidence, although sufficient,
was not overwhelming”).

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Opinion of the Court
heard testimony that, on the cell phone found in Duncan’s home, police
found an application that looked like a calculator but was actually a hidden,
password-protected way to store files. Once opened with Duncan’s
password, the app revealed a folder called “Sparky.” It contained
numerous images of K.K., K.M., and J.D. nude or in a state of undress in a
bathroom setting. Most of the images in the secret folder appeared to be
still screenshots or snapshots derived from videos taken in the bathroom
where K.K. had found the camera.

Duncan’s digital devices also revealed that he had researched
hidden cameras and spy cameras, and browsed and purchased one or more
such cameras through Amazon. His browser history also indicated that,
the day after K.K. left with his spy camera, Duncan conducted research on
how to hide or delete his Amazon browsing history.

Viewed in the light most favorable to sustaining the jury’s
verdicts, and resolving all inferences against Duncan, see Spears, 184 Ariz.
at 290, the foregoing evidence permitted reasonable jurors to conclude that
Duncan had secretly recorded the minor victims in states of undress,
captured still images from those videos, and saved them to a hidden,
password-protected folder on his cell phone “for the purpose of [his own]
sexual stimulation,” § 13-3551(5). Indeed, this is the common-sense
conclusion to be drawn from Duncan’s behavior. Neither at trial nor on
appeal has Duncan provided any alternative explanation for why he
behaved in this way.

Duncan attempts to contrast this case with Chandler, in which
the defendant also set up a hidden camera to record young women in the
bathroom, saving nude videos to a computer hard drive. 244 Ariz. 336, ¶ 2.
There, the defendant “admitted to thinking about masturbating while
watching [the] videos.” Id. ¶ 8. Duncan highlights this distinction, arguing
“there is no similar evidence from Mr. Duncan or any other source as to his
motivation.” But we recognize “no distinction in the probative value of
direct and circumstantial evidence,” and “[a] conviction may be sustained
on circumstantial evidence alone.” State v. Green, 111 Ariz. 444, 446 (1975).
The evidence here was sufficient to allow reasonable jurors to find Duncan
guilty of attempted and completed acts of sexual exploitation of a minor,
and the trial court properly rejected his Rule 20 motion on that ground.

Legal Sufficiency

Duncan also contends the trial court abused its discretion in
denying his Rule 20 motion because § 13-3553(A)(1)-(2) and § 13-3551(5)
“are unconstitutionally overbroad as applied to the facts of this case.” In

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Opinion of the Court
particular, he argues that the First Amendment to the United States
Constitution 6 “limit[s] the extent to which the State may criminalize
materials that depict child nudity,” allowing such criminalization only for
“images of minors engaged in sexual conduct” or “lewd images of the
genital, pubic or rectal areas of minors.”

As the state points out, Duncan did not raise this issue before
the trial court. Rather, he raised a due process challenge to any counts
predicated on images of a victim’s “rectal area”—of which there were
actually none. Nowhere did he argue, as he now does on appeal, that state
statutes prohibiting the sexual exploitation of minors may constitutionally
target materials that do not depict sexual conduct only if they contain a
lewd or lascivious depiction of nudity. As such, we review only for
fundamental and prejudicial error. See State v. Clark, 249 Ariz. 528, ¶ 12
(App. 2020) (defendant who did not challenge sufficiency of evidence on
certain counts when moving for judgment of acquittal under Rule 20
“forfeited relief for all but fundamental and prejudicial error” as to those
counts); State v. Brock, 248 Ariz. 583, ¶ 21 (App. 2020) (when defendant did
not object to legal standard applied by trial court in denying Rule 20
motion, appellate review limited to fundamental, prejudicial error).7

The parties agree that the videos and images at issue in this
case do not involve sexual conduct. As Detective Barry put it at trial, they
depict minors doing “[t]hings people would normally do in the bathroom”:
using the toilet, showering, and undressing to do so. To this extent, Duncan
is correct that the videos and images themselves “simply depict nudity of
adolescents.”

We cannot agree, however, with Duncan’s arguments
equating this case with those criminalizing the mere possession of such
images. Duncan’s formulations ignore the gravamen of the sexual
exploitation charges against him: that his creation and reproduction of the

6 Duncan also references article 2, § 6 of the Arizona Constitution,

arguing in passing that it “has been held to guarantee greater free speech
rights than the First Amendment.” Because Duncan’s briefs fail to develop
any argument based on this separate constitutional provision, we do not
address it. See State v. Trujillo, 248 Ariz. 473, n.1 (2020).
7Duncan disagrees, contending we must review his claim de novo.

But even under his preferred standard of review, Duncan would bear the
burden of overcoming a strong presumption that the challenged statutes
are constitutional. See Brock, 248 Ariz. 583, ¶ 10.

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Opinion of the Court
videos and images itself sexually exploited the minors. Duncan was not
prosecuted for merely “possessing” non-pornographic images of
adolescents. Rather, he hid a spy camera in the bathroom used by the foster
children living in his house to secretly record their private behaviors and
undressed bodies. He then captured and saved images from those videos
to other devices. And, as discussed above, the jury reasonably concluded
that he did so “for the purpose of [his own] sexual stimulation” as the
viewer. § 13-3551(5).

As we have previously explained, Ҥ 13-3553 does not
criminalize conduct involving ‘merely nude’ images of minors.” Brock, 248
Ariz. 583, ¶ 14; see also Chandler, 244 Ariz. 336, ¶¶ 2, 8 (interpreting statutes
to apply in cases involving analogous facts “will not lead to criminalization
of innocent pictures or videos in which a child happens to be nude”).
Rather, the definition of “exploitive exhibition” provided at § 13-3551(5)
“substantially circumscribes” the scope of § 13-3553. Brock, 248 Ariz. 583,
¶ 14. As we have held, that provision excludes nude images of minors that
are created for non-sexual purposes. Id.

Although this provision protects the innocent creator or
possessor of non-pornographic nude images of minors, Duncan is correct
that the sexual motivation requirement is incomplete in rendering our
sexual exploitation statutes constitutional. Both the United States Supreme
Court and this court have established that “a possessor’s subjective intent”
is insufficient to, as Duncan puts it, “transmute an image of mere nudity
into child pornography.” See, e.g., United States v. Williams, 553 U.S. 285,
288, 290, 301 (2008) (federal statute criminalizing pandering of visual
depictions of minors engaging in “sexually explicit conduct” not implicated
by “harmless picture of a child in a bathtub” offeror erroneously believes
constitutes lascivious exhibition of genitals, or where person “offers
nonpornographic photographs of young girls to a pedophile” who “secretly
expects that the pictures will contain child pornography”); State v. Gates, 182 Ariz. 459, 465-66 (App. 1994) (“When a picture does not constitute child
pornography, even though it portrays nudity, it does not become child
pornography because it is placed in the hands of a pedophile, or in a forum
where pedophiles might enjoy it.” (quoting United States v. Villard, 885 F.2d
117, 125 (3d Cir. 1989))); see also Osborne v. Ohio, 495 U.S. 103, 114 (1990)
(states may not “penaliz[e] persons for viewing or possessing innocuous
photographs of naked children”). As a result, Arizona’s sexual exploitation
statute would remain unconstitutional if applied to criminalize the mere
possession of non-lewd, nude videos or images of minors, even when the
possession may be sexually motivated. See § 13-3553(A)(2) (criminalizing,
inter alia, possession of visual depictions of minors engaged in exploitive

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Opinion of the Court
exhibition); see also State v. Hazlett, 205 Ariz. 523, ¶ 28 (App. 2003)
(acknowledging this caveat to constitutionality of § 13-3553). But Arizona
may criminalize conduct by those who take actions to create such videos or
images to sexually exploit the minors depicted in them. Under the latter
circumstance, the criminal act exists not in the content of the videos or
images, but in the defendant’s affirmative actions in recording, filming, or
photographing the minors and reproducing the resulting images with
sexual motivation. See § 13-3553(A) (criminalizing a defendant’s
affirmative actions in exploiting children); § 13-3551(5).

So applied, “the challenged statute does not constrain
protected expression” and “is not overbroad.” Brock, 248 Ariz. 583, ¶ 14.
To the contrary, by limiting the universe of illegal behavior in this way, our
legislature ensured compliance with the constitutional requirement that the
prohibited conduct be “adequately defined by the applicable state law,”
with the category of forbidden material “suitably limited and described.”
New York v. Ferber, 458 U.S. 747, 764 (1982); see also Brock, 248 Ariz. 583, ¶ 11.

In sum, § 13-3551(5) and § 13-3553(A)(1)-(2) are not
constitutionally overbroad as applied to the facts of this case. Duncan took
affirmative actions to create the videos and images in question for the
purposes of sexually exploiting the minors depicted. The trial court
committed no error, much less fundamental error, in denying his Rule 20
motion on the legal basis for the twenty-six counts of attempted or
completed acts of sexual exploitation of a minor.

Motion to Suppress

Duncan sought to suppress the evidence obtained by the state
as a result of the warrantless search of his charger device and its SD card,
including the images subsequently discovered on other electronic devices
in his home through the execution of the search warrant. After an
evidentiary hearing, the trial court denied the motion in full. Duncan now
challenges that ruling on appeal.

We review a trial court’s denial of a motion to suppress for an
abuse of discretion, “considering the facts in the light most favorable to
sustaining the ruling.” State v. Valenzuela, 239 Ariz. 299, ¶ 9 (2016). We
consider only the evidence presented at the suppression hearing. Id. ¶ 3.
We must affirm if the ruling is legally correct for any reason. State v.
Boteo-Flores, 230 Ariz. 551, ¶¶ 7-8 (App. 2012).

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Warrantless Search of the SD Card

At the suppression hearing, the trial court accepted Duncan’s
admission that, at all times relevant to this case, he was the exclusive owner
of both the charger device and the SD card it contained. The court then
concluded that Detective Barry’s search of the SD card qualified as a search
under the Fourth Amendment, such that a warrant was required “absent
exigent circumstances or a legally recognized exception.” This conclusion
“is consistent with United States Supreme Court and Arizona Supreme
Court jurisprudence making clear that data derived from electronic devices
cannot be searched without a warrant.” Hamberlin v. State ex rel. Ariz. Game
& Fish Dep’t, 249 Ariz. 31, ¶¶ 25, 28 (App. 2020) (to search data from even
properly seized electronic equipment, state “must first develop evidence
sufficient to establish probable cause and then get a warrant”).

The state challenges the trial court’s characterization of
Detective Barry’s examination of the contents of Duncan’s SD card as “a
trespass into defendant’s personal papers and effects.” It insists “there was
no trespass by a government agent” because “K.K. took the device and
removed the SD card,” whereas Barry did not “physically” occupy or
intrude on any constitutionally protected area.8 The state thus contends
that United States v. Jones, 565 U.S. 400 (2012), “does not apply.” Instead, it
frames the relevant question as whether Duncan had a “reasonable
expectation of privacy in the spy camera or the SD card inside of it”—an
articulation of a test derived from Justice Harlan’s concurrence in Katz v.
United States, 389 U.S. 347, 360 (1967).

The Fourth Amendment protects the “right of the people to
be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures.” U.S. Const. amend. IV. We have no difficulty
determining that Duncan’s charger device qualifies as a personal “effect,”

8It is undisputed that K.K., and not a government actor, removed the

charger device and its SD card from Duncan’s home. Given that no
warrantless search of a home occurred in this case, we need not address
Duncan’s passing argument that our state constitutional provisions are
“specific in preserving the sanctity of homes.” See State v. Huerta, 223 Ariz.
424, ¶ 18 (App. 2010) (Arizona Constitution occasionally “found to afford a
defendant greater privacy protections” than U.S. Constitution, but only in
“exceedingly narrow” circumstances when “privacy of a person’s home has
been invaded” by government); State v. Juarez, 203 Ariz. 441, ¶ 15 (App.
2002) (except in home search context, protections of Arizona Constitution
concomitant with those of federal constitution).

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Opinion of the Court
with the videos saved on its SD card being a data-based equivalent to
“papers.” See State v. Jean, 243 Ariz. 331, ¶ 9 (2018) (“vehicle is an ‘effect’
under the Fourth Amendment”); see also, e.g., People v. Gingrich, 862 N.W.2d
432, 436-37 (Mich. Ct. App. 2014) (“can hardly be doubted” that personal
laptop computer “storing personal information in the form of digital data
must be considered defendant’s ‘effect’ under the Fourth Amendment,”
and accessing its data to obtain information qualifies as “search”); Brackens
v. State, 312 S.W.3d 831, 837 (Tex. Ct. App. 2009) (“Fourth Amendment
protection afforded to closed computer files and hard drives is similar to
the protection afforded to a person’s closed containers and closed personal
effects”); United States v. Barth, 26 F. Supp. 2d 929, 936 (W.D. Tex. 1998)
(same, and analogizing to office files).9 The state maintains that it did not
intrude on any personal property to obtain information. See Florida v.
Jardines, 569 U.S. 1, 5 (2013) (“When ‘the Government obtains information
by physically intruding’ on persons, houses, papers, or effects, ‘a search
within the original meaning of the Fourth Amendment’ has ‘undoubtedly
occurred.’” (quoting Jones, 565 U.S. at 406 n.3)). We cannot agree.

To examine its contents, Detective Barry physically removed
the SD card from the USB charger and inserted it into a device attached to
his computer. He then clicked on the electronic folder that appeared on his
screen and viewed its contents, proceeding then to use special forensic
software to click through and view additional deleted items. We agree with
the trial court that this was “the 21st century version of opening a closed
briefcase or file cabinet and pulling out its contents and looking at them.”
This case does not present the more complicated problem of information or
data that has been shared, transmitted, or intercepted. See, e.g., Katz, 389
U.S. at 348 (involving FBI’s attachment of electronic listening and recording
device to outside of public telephone booth from which defendant placed
calls); State v. Mixton, 250 Ariz. 282, ¶ 1 (2021) (regarding internet user’s IP
address and subscriber information voluntarily provided to internet service
provider). We remain in the domain of personal physical “effects” that
were indisputably searched by the state. See United States v. Ackerman, 831
F.3d 1292, 1304, 1308 (10th Cir. 2016) (“rummaging through private papers
or effects would seem pretty obviously a ‘search,’” whether mail in question

9As such, we need not address the parties’ arguments regarding the

extent to which the device in question is analogous to a cell phone or
computer hard drive, either in terms of its capabilities and contents or any
resulting privacy interests.

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is physical mail or email, and “pretty intuitive” that opening and examining
a party’s email qualifies as a “search”).10

Detective Barry testified that no exigent circumstances
prevented him from obtaining a warrant prior to searching the SD card.
Thus, as the trial court correctly concluded, a warrant was required unless
“one of a few well-established exceptions applie[d].” Valenzuela, 239 Ariz.
299, ¶ 10 (warrantless search “per se unreasonable under the Fourth
Amendment” absent qualifying exception).

Abandonment

The trial court denied Duncan’s motion to suppress on the
ground that he had abandoned the charger device and retained no privacy
interest in it by the time Detective Barry viewed the contents of its SD card.
Whether a defendant has abandoned property is a factual determination we
review for “clear and manifest error.” State v. Huerta, 223 Ariz. 424, ¶ 4
(App. 2010). Defendants have abandoned property when they have
“voluntarily discarded, left behind, or otherwise relinquished [their]
interest in the property in question” so that they can “no longer retain a
reasonable expectation of privacy with regard to it at the time of the search.”
Id. ¶ 5 (quoting State v. Walker, 119 Ariz. 121, 126 (1978)). We determine
whether this has occurred by objective factors. Id. Specifically, we consider,
under the totality of the circumstances, id. ¶ 15, whether the defendant’s
words or actions would have caused “a reasonable person in the searching
officer’s position to believe that the property was abandoned,” id. ¶ 5
(quoting People v. Pereira, 58 Cal. Rptr. 3d 847, 852-53 (Ct. App. 2007)).

10 We need not separately apply Katz’s “reasonable expectation of

privacy” test. See Jardines, 569 U.S. at 5 (Katz “does not subtract anything”
from Fourth Amendment’s protections when government does engage in
physical intrusion of constitutionally protected area); see also Ackerman, 831
F.3d at 1307 (“government conduct can constitute a Fourth Amendment
search either when it infringes on a reasonable expectation of privacy or
when it involves a physical intrusion (a trespass) on a constitutionally
protected space or thing (‘persons, houses, papers, and effects’) for the
purpose of obtaining information,” and fact that “government’s conduct
doesn’t trigger Katz doesn’t mean it doesn’t trigger the Fourth
Amendment”); Lyall v. City of Los Angeles, 807 F.3d 1178, 1186 n.8 (9th Cir.
2015) (“[A] person may have Fourth Amendment standing to challenge a
search based on his possessory interest in property independent of any
reasonable expectation of privacy in the property.”).

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The state does not defend the trial court’s finding of
abandonment on appeal. Duncan contends that none of the facts before the
court reasonably supported a finding that he had abandoned the charger
device or the SD card it contained. We agree.

In deeming the device abandoned, the trial court emphasized
that Duncan had placed it in a bathroom in a common area of his home used
by other residents and guests. The court further posited that, as a foster
home, Duncan’s residence was subject to state scrutiny, including quarterly
inspections and at least one unannounced monitoring inspection per year.
It defies common sense to assert that a person abandons his property by
placing it somewhere in his own home. Nor does the possibility of state
inspection render personal property abandoned.

The trial court also noted that K.K. “had previously
unplugged the device and moved it to defendant’s desk area and defendant
responded by placing it back in the common bathroom.” Nothing about
this intentional movement of the device to a specific location in the home
evinces an intent to abandon it. Indeed, at the suppression hearing, the
court was advised that, after Duncan moved the device back into the
bathroom, K.K. left it because “she didn’t want to argue with him or get in
trouble for asking why it was in there.”

Finally, the trial court observed that, after a series of text
messages with K.K. on the day she left and removed the device from the
bathroom, Duncan “made no further efforts to track it down or recover it”
and did not contact DCS or the police department. The court also observed
that “[t]he device was not examined for 7 days thereafter.” However, in his
text exchange with K.K.—which he initiated immediately after he noticed
the device was no longer in the bathroom—Duncan repeatedly inquired as
to where his “battery,” “charger,” or “box” had gone. K.K. responded that
she had left the “battery” on a chair in the house and otherwise—
understandably, but importantly—feigned ignorance about the location of
the device Duncan was actively seeking. Having been reassured that K.K.
had not removed the missing device from his home, Duncan had no reason
to take any further steps to assert his ownership interest in it. Even if he
did not believe K.K.’s assertion that she had left the device in his home,
there is no evidence that he knew where it was. Neither DCS nor the police
contacted Duncan about the device. And even if he suspected that K.K. had
turned the device over to DCS or the police, affirmatively approaching
either to inquire about his property would have presented “a constitutional
dilemma of choosing between his privacy interests and his right against
self-incrimination,” given the context in which either entity would have
come into possession of the device. Huerta, 223 Ariz. 424, ¶ 16

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 STATE v. DUNCAN
Opinion of the Court
(acknowledging “no abandonment when defendant forced to choose
between expectation of privacy and right against self-incrimination”).

The trial court contrasted Duncan’s lack of follow-up in the
seven days preceding the search of the SD card with his partner’s “extensive
and ultimately successful” pursuit of the cell phone K.K. took when she left
the foster home. But in the latter context, K.K. had acknowledged having
the phone, making follow-up attempts to retrieve it from her reasonable.
She made no such acknowledgement to Duncan or his partner with regard
to the device in question here.

Viewed in their totality, these circumstances do not support
the conclusion that by the time of the search, Duncan had abandoned the
charger device or the spy camera and SD card it contained. See id. ¶¶ 5, 15.
Nothing in his words or actions could have caused a reasonable person in
the searching officer’s position to believe that Duncan had relinquished his
ownership interest in the property. See id. ¶ 5. To the contrary, in his last
exchange with K.K., he repeatedly asserted that the item belonged to him.
Notably, at no point during the suppression hearing did Detective Barry
articulate a belief that Duncan had abandoned the device. Having no
evidence before it demonstrating that Duncan had voluntarily relinquished
his interest, the trial court erred in finding that Duncan had abandoned the
charger device at the time its SD card was searched. See id. ¶ 4.

Apparent Authority to Consent

The state argues that “K.K. had apparent authority to give the
SD card to police and consent to its search.” In particular, the state contends
that “because Duncan left his spy camera in the bathroom that K.K. and
others used, with no limitation on their access to it, K.K. had apparent
authority to consent to the search of the SD card and no warrant was
necessary to search it.” The state also argues that, by leaving the charger
device in a place K.K. could access it—which she repeatedly did, first by
removing it from the bathroom and placing it on Duncan’s desk, and then
by removing the SD card, attempting to view its contents, removing the
device from the home, and providing it to DCS—“Duncan assumed the risk
that K.K. could allow someone else to have the contents of the camera.”

The theory articulated by the state on appeal is consistent
with Detective Barry’s explanation at the suppression hearing for why he
did not obtain a warrant before searching the SD card. He testified as
follows:

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 STATE v. DUNCAN
Opinion of the Court
It was because the child brought it to me. It was
placed in her room for a specific area. She had
dominion and control over that item and I
didn’t think about getting a warrant because she
was the one who provided it. She was the one
who had it. It was put into her personal space
where she could have even used the item.

“One exception to the warrant requirement is a search
conducted with consent.” Valenzuela, 239 Ariz. 299, ¶ 11; see also Schneckloth
v. Bustamonte, 412 U.S. 218, 219 (1973). This includes situations in which “a
third party with ‘common authority over or other sufficient relationship to
the premises or effects sought to be inspected’ voluntarily consents to the
search.” State v. Jones, 185 Ariz. 471, 480 (1996) (quoting United States v.
Matlock, 415 U.S. 164, 171 (1974)).

“[W]hen determining whether common authority exists, the
focus is on apparent authority, rather than actual authority.” Id. at 481; see
also Illinois v. Rodriguez, 497 U.S. 177, 188 (1990). We assess this question by
an objective standard: whether the facts available to an officer at the time
of a search would permit a person of reasonable caution to believe that the
consenting third party had the authority to authorize the search. Rodriguez,
497 U.S. at 188. We must therefore determine whether, based on the
information available to him at the time of the search, Detective Barry could
reasonably have concluded that K.K. had the right to permit inspection of
the SD card. See Matlock, 415 U.S. at 171 n.7 (authority justifying third-party
consent depends on whether “reasonable to recognize that any of the
co-inhabitants has the right to permit the inspection in his own right and
that the others have assumed the risk that one of their number might permit
the common area to be searched”); see also State v. Tucker, 118 Ariz. 76, 78
(1978) (adopting language from Matlock).

Common authority hinges on whether there is apparent
“mutual use of the property by persons generally having joint access or
control for most purposes.” Matlock, 415 U.S. at 171 n.7; see also Rodriguez,
497 U.S. at 188; State v. Heberly, 120 Ariz. 541, 543-44 (App. 1978). Here, the
search in question was of a piece of property—the SD card contained in the
spy camera—not the search of certain premises.11 “When the property to

11 For this reason, K.K.’s use of the bathroom where the charger
device was located is not the operative question. A party’s shared use of a
space does not necessarily imply shared use of, or the right to consent to the
search of, all property contained within that space. See, e.g., State v. Bentlage, 192 Ariz. 117, ¶¶ 3-6 (App. 1998) (passenger, who owned vehicle, lacked

15
 STATE v. DUNCAN
Opinion of the Court
be searched is an object or container, the relevant inquiry must address the
third party’s relationship to the object.” United States v. Andrus, 483 F.3d
711, 717 (10th Cir. 2007); see also Heberly, 120 Ariz. at 544 (applying
Matlock/Tucker test to third party’s consent to search of defendant’s
suitcase).

The information available to Detective Barry at the time of the
search indicated that the device belonged exclusively to Duncan. That
information, contained in the patrol officer’s initial report, did not
reasonably indicate that Duncan had allowed K.K. to jointly use or possess
the device or to exercise material control over it. K.K. had never suggested
the device belonged to her. Rather, she had delivered it to DCS because she
had found it in her bathroom, knew it was not hers, was suspicious about
its purpose, and had been unable to access its contents. Barry was informed
that, when K.K. had previously attempted to remove it from her bathroom,
Duncan had overridden that attempt and returned it. K.K. had acquiesced,
deciding to leave the device in her bathroom because she “didn’t want to
argue with [Duncan] or get in trouble for asking why it was in there.”
According to K.K, she did not know at that point that the device contained
a camera, much less attempt to use it as such. Moreover, the initial police
report reflected that, after K.K. later realized the device was actually a
hidden camera and tried to view its contents, she “was not able to gain
access to the SD card because it was password protected.” This should have
cued Barry that Duncan had not given K.K. common authority over it.
Finally, the initial report indicated that Duncan had asked K.K. for the
device after she left the house and that—far from manifesting a right to use
or control it—she had responded that she did not have it and did not know
where it was.

Thus, the information available to Detective Barry did not
reasonably suggest that K.K. appeared to have common authority to
consent to the search of Duncan’s SD card.

Private Search Doctrine

Before the trial court, the state argued that no warrant was
required for Detective Barry’s search of the SD card because K.K., a private
actor, had already searched it and Barry did not exceed the scope of K.K.’s
search. As we have observed, “once [a] private actor has frustrated ‘the
original expectation of privacy,’ there is no constitutional protection of

apparent authority to consent to search of defendant driver’s zippered case
found under driver’s seat).

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 STATE v. DUNCAN
Opinion of the Court
‘governmental use of the now-nonprivate information.’” State v. Fristoe, 251
Ariz. 255, ¶ 12 (App. 2021) (quoting United States v. Jacobsen, 466 U.S. 109,
117 (1984)).

Detective Barry’s search of Duncan’s device was not rendered
constitutional by this doctrine. Although K.K. attempted to do so, she never
successfully searched the SD card to view any of its contents. Barry
speculated that the card’s format made K.K.’s attempt unsuccessful. But
we do not anchor the private search doctrine in whether a device could
hypothetically have been searched by a private actor. Rather, we must
assess which expectations of privacy were actually frustrated by the private
party’s investigation. See United States v. Runyan, 275 F.3d 449, 458-64 (5th
Cir. 2001). A private person’s unsuccessful exertions to force open the
latches on another’s briefcase would not forfeit the briefcase owner’s
privacy interest in its contents. The facts here are analogous. The state has
made no argument that K.K. actually discovered any of the contents of the
SD card. Therefore, Barry’s complete exposure of the contents of the card,
including through the use of specialized forensic software, exceeded the
scope of K.K.’s fruitless, private search. See Jacobsen, 466 U.S. at 122.

Conclusion

Having identified no legal basis justifying the ruling, see
Boteo-Flores, 230 Ariz. 551, ¶¶ 7-8, we must conclude that the trial court
abused its discretion by denying Duncan’s motion to suppress the evidence
gathered through the warrantless search of his SD card.

Fruits of the Search Warrant

Detective Barry included the information gathered from his
search of the SD card, along with other information, in the affidavit he
submitted to obtain the search warrant for Duncan’s residence. The
execution of that search warrant resulted in the discovery on Duncan’s cell
phone of nude and semi-nude images of K.K., K.M., and J.D. captured from
videos taken in the bathroom where K.K. had found the spy camera. These
additional images formed the bases for counts ten through thirty.

When illegally obtained information was included in an
affidavit in support of a search warrant, “[t]he proper method for
determining the validity of the search . . . is to excise the illegally obtained
information from the affidavit and then determine whether the remaining
information is sufficient to establish probable cause.” State v. Gulbrandson, 184 Ariz. 46, 58 (1995). The state must show that the information learned

17
 STATE v. DUNCAN
Opinion of the Court
from the illegal search “did not affect the officer’s decision to seek the
warrant or the magistrate’s decision to grant it.” Id.

Detective Barry testified that, even without having viewed the
contents of the SD card, he “absolutely” would have sought a warrant to
search electronics found in Duncan’s home. He observed that data from the
SD card could be viewed remotely and easily transferred to a cell phone or
computer. Having found Barry’s testimony credible, the trial court
concluded that, with the SD card information excised, the warrant affidavit
contained “sufficient facts/probable cause to support” the issuance of the
warrant.

On appeal, Duncan challenges this conclusion as an abuse of
discretion. He contends the search warrant affidavit “was insufficient
without the information obtained from the warrantless search,” such that
“the fruit of the poisonous tree should have been suppressed.”

“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)). The standard
is a practical one that depends on the totality of the circumstances. Id. “[A]ll
that is ‘required is the kind of fair probability on which reasonable and
prudent people, not legal technicians, act.’” Id. (quoting Harris, 568 U.S. at
244).

With the information gathered during the warrantless search
of the SD card excised from the warrant affidavit, 12 the remaining
information was sufficient to justify the issuance of the search warrant.
First, it established that a minor living in a foster home had found what she
suspected to be a hidden camera in a charging device in the bathroom

12Duncan argues that only the first paragraph of the search warrant

affidavit may be considered toward probable cause because the forensic
interview referenced in paragraphs two, three, four, and seven and
Detective Barry’s open-source online search referenced in paragraph eight
both occurred after the warrantless search was conducted. But, as Duncan
concedes, the statements from the forensic interview mirror the statements
K.K. made to the patrol officer before Barry conducted his search—
statements memorialized in a report Barry reviewed at the beginning of his
involvement in the case. And Detective Barry testified that he did not recall
whether he conducted his online research before or after he searched the
SD card.

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 STATE v. DUNCAN
Opinion of the Court
where she showered. The minor knew that the device belonged to Duncan,
who had repeatedly placed it in the bathroom and inquired as to its location
after she removed it. The affidavit also advised that an experienced police
officer had confirmed that the device was, in fact, a spy camera. The officer,
with training in internet crimes against children, confirmed the camera
could be accessed remotely via an application downloaded to the user’s cell
phone. That application would allow for complete control of the camera
and the saving of videos to the phone.

This information was sufficient to establish a fair probability
that Duncan had committed, at minimum, surreptitious photographing,
videotaping, filming, or digital recording or viewing under A.R.S. § 13-3019
and that evidence of that crime or others would be found—as it was—on
other electronic devices located in his home. See Sisco, 239 Ariz. 532, ¶ 8.
We thus conclude that, although the trial court erred in failing to suppress
the evidence found through the warrantless search of Duncan’s SD card, it
did not abuse its discretion by refusing to suppress the evidence obtained
through the execution of the search warrant.

Harmlessness

“We assess a trial court’s erroneous denial of a motion to
suppress for harmless error.” Davolt, 207 Ariz. 191, ¶ 39. This standard of
review “places the burden on the state to prove beyond a reasonable doubt
that the error did not contribute to or affect the verdict or sentence.” State
v. Henderson, 210 Ariz. 561, ¶ 18 (2005); see also State v. Glissendorf, 235 Ariz.
147, ¶ 23 (2014) (once defendant has shown error, burden shifts to state to
prove error harmless); State v. Anthony, 218 Ariz. 439, ¶ 39 (2008) (state has
burden of convincing appellate court that “guilty verdict actually rendered
in this trial was surely unattributable to the error” (quoting State v. Bible, 175 Ariz. 549, 588 (1993))). The state has not done so here.

During the trial court litigation, the state itself took the
position that the erroneously admitted evidence was relevant and probative
as to all counts. It provided pretrial notice, pursuant to Rule 404(b) and (c),
Ariz. R. Evid., of its intent to present other acts evidence. This included
videos and images on various devices that were not the subject of the
charged offenses. Most importantly, the state sought a ruling that
uncharged videos on the SD card were admissible against Duncan under
Rule 404(b) and (c). The trial court agreed, admitting the entire contents of
the SD card. It found the evidence relevant to show “modis operandi, intent,
and absence of mistake” under 404(b). And, it found the evidence
admissible under 404(c) to show Duncan’s “propensity for sexual
aberration, specifically Voyeurism.”

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 STATE v. DUNCAN
Opinion of the Court
On the record before us, the erroneously admitted evidence
was indispensable to the convictions on counts one through nine. Those
counts were expressly based on videos found through the improper
warrantless search of the SD card. The remaining counts involved a
different set of images lawfully discovered in Duncan’s home through the
execution of the search warrant. However, as we have explained above,
Duncan’s seventeen convictions for sexual exploitation of a minor based on
the images found on Duncan’s cell phone did not turn exclusively on the
content of the particular charged images themselves, but also on his
motivation in creating them. And, as to all counts, the state and trial court
agreed that the SD card’s full contents were relevant to show Duncan’s
modus operandi, intent, absence of mistake, and propensity for voyeurism.
Therefore, we cannot say that the jurors’ exposure to evidence found on the
SD card had no effect on their determination of Duncan’s guilt as to all
counts.

When, as here, the defendant has timely objected before the
trial court to evidence that has been erroneously admitted, the state carries
the burden of demonstrating that such evidence was harmless as to some
or all of the counts. In its appellate briefing, the state has failed to make any
argument that the erroneous admission of the SD card evidence would be
harmless as to any count. Indeed, it does not mention the harmless error
doctrine at all. See Glissendorf, 235 Ariz. 147, ¶ 23 (finding state failed to
meet burden of establishing harmlessness when “answering brief before the
court of appeals . . . did not even mention harmlessness”). Given the state’s
failure to discharge its burden, we must reverse the convictions and
sentences on all counts and remand this case for a new trial. See id. ¶¶ 24,
26.

Disposition

For the foregoing reasons, we reverse Duncan’s convictions
and sentences and remand for a new trial consistent with this opinion.

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