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

2

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 
STATE v. DUNCAN

Opinion of the Court

3

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 minor2—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 

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

charged in the alternative as surreptitious photographing, videotaping, 

filming, or digitally recording or viewing. 

2The 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. 
STATE v. DUNCAN

Opinion of the Court

4

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.
STATE v. DUNCAN

Opinion of the Court

5

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”).
STATE v. DUNCAN

Opinion of the Court

6

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 
STATE v. DUNCAN

Opinion of the Court

7

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 

6Duncan 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.
STATE v. DUNCAN

Opinion of the Court

8

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, “§ 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 
STATE v. DUNCAN

Opinion of the Court

9

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).
STATE v. DUNCAN

Opinion of the Court

10

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).
STATE v. DUNCAN

Opinion of the Court

11

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. 
STATE v. DUNCAN

Opinion of the Court

12

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)).

10We 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.”).
STATE v. DUNCAN

Opinion of the Court

13

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
STATE v. DUNCAN

Opinion of the Court

14

(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:
STATE v. DUNCAN

Opinion of the Court

15

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 

11For 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 
STATE v. DUNCAN

Opinion of the Court

16

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). 
STATE v. DUNCAN

Opinion of the Court

17

‘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 
STATE v. DUNCAN

Opinion of the Court

18

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. 
STATE v. DUNCAN

Opinion of the Court

19

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.”
STATE v. DUNCAN

Opinion of the Court

20

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.