COMPUTER / INTERNET CRIMES

Computer crimes in Arizona can include a wide range of charges, such as:

• Computer child pornography (Sexual Exploitation of a Minor – A.R.S. § 13-3553)
• Child internet solicitation (Luring a Minor for Sexual Exploitation – A.R.S. § 13-3554)
• Identity theft
• Internet fraud
• Credit card fraud
• Internet gambling
• Internet pharmacy
• Illegal “spamming”
• Internet auction fraud
• Unauthorized computer access / “hacking”

DEFENDING AGAINST ALLEGED COMPUTER CRIMES

These kinds of computer and internet crimes often require the use of a forensic expert in order to combat the charges. In such cases, it is useful to obtain a mirror image of a defendant’s hard drive and obtain analysis by an independent forensic expert to fully explore all possible defenses. It is not uncommon for perpetrators of internet crimes to reroute their activities through the IP addresses of perfectly innocent individuals, resulting in unfounded criminal charges.

With less than twenty years of legal precedent, the laws governing the use of computers and internet are fluid and constantly open to new interpretations. Computer and internet activities that were legal can become illegal with little warning, and activities that existed in a legal “grey” area can suddenly be vigorously prosecuted by the state without precedent. If you have been charged with any kind of computer or internet crime, you should immediately consult with experienced counsel. Because many of these charges can result in extremely serious sentences upon conviction, it is important to retain experienced counsel familiar with defending these types of crimes, such as the Gillespie Law Firm.

SEARCH / SEIZURE CRIMES

One defense in computer crime cases is to challenge the validity of the search/seizure of the computer. In Arizona, officers must have a search warrant to search or seize your computer, absent a specific exception. In the case of computers, these exceptions rarely apply.

If a computer is searched or seized pursuant to a search warrant, there are multiple defenses that may nonetheless apply. For example, the officers executing the search warrant may have exceeded the scope of the search warrant, may have executed a stale search warrant, or may have obtained the search warrant for an improper or illegal purpose. Additionally, the search warrant itself may have been invalid if, for example, the search warrant was unreasonably broad, failed to particularly describe the places or things to be searched or seized, or was not based on sufficient probable cause.

We have successfully litigated cases on this basis, including:

STATE OF ARIZONA v. R.L.

While being interviewed on a separate matter, R.L. was questioned regarding an unrelated past incident in which a computer file containing alleged child pornography was found on a computer in his home. After further questioning, the police requested and obtained a search warrant to seize a computer from his bedroom. Images of alleged child pornography were found on the computer hard drive. Subsequently, R.L. was charged with six counts of sexual exploitation of a minor, class two felony offenses punishable as dangerous crimes against children. Upon conviction, he faced a mandatory minimum sentence of 60 years in prison.

With the assistance of an expert witness, our investigation revealed four of the six charged computer images were retrieved from the “unallocated” space of the computer’s hard drive, meaning the images had been “deleted” or only stored temporarily, but not yet overwritten; another of the images was found in the “temporary internet files” directory, where programs store downloaded files automatically and in many cases, without user intervention. However, because this information was not presented to the Grand Jury, we challenged the State’s presentation of the evidence. The Court accepted our position that the Grand Jury presentation was flawed and ordered the case remanded for a new determination of probable cause.

We also attacked the legality of the search warrant used to seize the computer. Confronted with evidence that the search warrant was overbroad, vague, and lacking in probable cause due to police exaggeration of statements made by the defendants, and concealing of exculpatory information, the Court agreed that the State’s warrant was obtained illegally. The Court granted our motion to suppress all evidence seized after the police unlawfully obtained the warrant and subsequently dismissed all six counts against our client.

PUNISHMENT FOR INTERNET SEX CRIMES

Punishment for an internet sex crime offender in Arizona will depend on the type of offense, level of offense, and application of any statutory sentence enhancement. A felony internet sex crime conviction can result in a sentence of probation, jail, or prison. Conviction for many sex crimes will result in extremely long terms of incarceration under Arizona’s harsh mandatory sentencing scheme. Furthermore, a conviction for some sex crimes will result in registration as a sex offender and public disclosure. Severity of punishment can also be affected by factors such as the defendant’s criminal history/prior convictions, whether the offense was committed while on probation or parole, and numerous other circumstances.

Sex Offender Registration / Lifetime Probation

In Arizona many convictions for internet sex offenses require registration with the Arizona Department of Public Safety (DPS), and/or local law enforcement agencies. In many cases even defendants who receive probation are required to register as a sex offender. Sex offenders in Arizona are often placed on “lifetime probation” which includes close monitoring and counseling referred to as the Sex Offender Treatment Program, a very comprehensive plan designed for the treatment of individuals with various sexual pathologies.

Dangerous Crimes Against Children

By far, the most severe section of Arizona’s mandatory sex crimes sentencing schemes involves alleged “Dangerous Crimes Against Children” (DCAC). Computer sex crimes will be alleged as DCAC offenses if committed against a minor who is under fifteen years of age.

Arizona’s mandatory sentencing for sex offenses involving children are some of the toughest in the country. For example, the minimum sentence for one count of computer child pornography (Sexual Exploitation of a Minor) involving a person under the age of fifteen is 10 years imprisonment. The presumptive term is 17 years and the aggravated term is 24 years. All of the terms of imprisonment must be served day for day: there is no applicable “good time” or early release provision. Most importantly, the term of imprisonment for any DCAC offense must be served consecutively to any other sentence imposed. In the case of possession of computer child pornography, the State will usually charge one count for each image discovered. Therefore, because each sentence must be served consecutively, the mandatory minimum sentence will often be an effective life sentence in these cases, even for a first offense.

Probation in Dangerous Crimes Against Children Cases

Under certain circumstances, a defendant charged with a DCAC computer crime can negotiate to have the charge reduced, which may make them eligible for probation. Occasionally, prosecutors will stipulate to a probation plea, but more often, they will offer the defendant a “no agreements” plea, in which case counsel for the defendant must advocate to the Court that probation, not prison, is the appropriate disposition for his or her client.

CONCLUSION

If you have been accused of a computer crime, it is imperative that you contact an experienced attorney immediately to begin your representation. The Gillespie Law Firm, P.C. is a leading criminal defense firm and has special knowledge and years of experience in defending clients charged with alleged sex offenses in the state of Arizona. The firm can handle all of the aspects of your case, including pre-trial investigation, witness interviews, legal research, defense identification, grand jury and motion practice, plea negotiations, and, if necessary, full litigation at trial and on appeal. We will strongly advocate your case at all times, yet do so in a discrete manner, as we recognize that your reputation and your future are at stake. If you chose to retain our law firm, we will provide the highest level of criminal defense representation available.

The information set forth above is only a simplified overview of Arizona’s computer crimes sentencing scheme. Each defendant's individual case is often quite complex depending upon the particular facts of the alleged crime. Many circumstances impact the formulation of sentencing in any given case and the sentencing scheme is far more complicated than the simple explanation you have read about here. Always seek professional personal advice from an experienced criminal defense attorney who can help you identify all of the facts and issues that may affect the outcome of your particular matter.