THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
IN THE COURT OF APPEALS
STATE OF ARIZONA
STATE OF ARIZONA,
DAVID LEE LAMB,
RUTH A. WILLINGHAM,
No. 1 CA-CR 09-0622
(Not for Publication Rule 111, Rules of the
Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause No. CR2009-006230-001 DT
The Honorable Roland Steinle, Judge
The Honorable Julie P. Newell, Judge Pro Tempore
VACATED AND REMANDED
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani, Chief Counsel
Criminal Appeals and Capital Litigation Section
And Suzanne M. Nicholl, Assistant Attorney General
Attorneys for Appellee
James J. Haas, Maricopa County Public Defender
By Eleanor S. Terpstra, Deputy Public Defender
Attorneys for Appellant
B R O W N, Judge
sentences for one count of possession of marijuana and one count
of possession of a narcotic drug.
Lamb argues that the trial
granted, we vacate the convictions and sentences and remand for
further proceedings. 1
In April 2009, Lamb was indicted for possession of a
intimidating another by a street gang member.
Lamb filed a
timely motion to suppress, asserting the police officers lacked
State filed a response to the motion, and shortly thereafter,
both parties filed written “offers of proof.”
Attached to the
State’s “offer of proof” was a video recording of Lamb’s arrest.
The day before trial, the trial court denied the motion without
an evidentiary hearing, finding that the police had probable
Because we are vacating the convictions, we need not
address Lamb’s arguments that he was eligible for mandatory
probation and entitled to additional presentence incarceration
The State has conceded on appeal that the duties of
identification imposed by Arizona Revised Statutes section 132412 (2010) were not triggered under the facts of this case.
A jury found Lamb guilty on the two drug charges, but
not guilty on the intimidation charge.
Lamb timely appealed.
The Fourth Amendment prohibits unreasonable searches
State v. Rogers, 186 Ariz. 508, 510, 924 P.2d 1027,
Officers may conduct a weapons frisk if there is a
reasonable fear for safety.
Terry v. Ohio, 392 U.S. 1, 27
Reasonable suspicion is a mixed question of law and
Rogers, 186 Ariz. at 510, 924 P.2d at 1029.
It is a
lower standard than probable cause, and arises from “specific,
from those facts.”
State v. Ramsey, 223 Ariz. 480, 484, ¶ 17,
investigatory stop absent reasonable suspicion is “fruit of the
poisonous tree” and must be suppressed.
State v. Richcreek, 187
Ariz. 501, 506, 930 P.2d 1304, 1309 (1997).
the denial of a motion to suppress, we review only the “evidence
submitted at the suppression hearing.”
State v. Box, 205 Ariz.
The State contends that, though the trial court’s rationale for
denying the suppression motion was incorrect, we should
nevertheless affirm because the court was correct on other
492, 493, ¶ 2, 73 P.3d 623, 624 (App. 2003).
The problem we
face here, however, is that the trial court did not conduct a
suppression hearing and thus we have no evidence to review. 3
In his motion to suppress, Lamb specifically requested
however, is silent as to why there was no hearing conducted or
why each party submitted an offer of proof.
By minute entry,
stating that “[a]ll motions must comply with Rule 35.1 including
Failure to file a sufficient motion may result in the motion
being denied without evidentiary hearing[.]”
But the court gave
no indication that Lamb’s motion was deficient; instead, the
court determined the outcome based on the merits.
In any event, to the extent the court may have relied
on Rule 35.1 when it ruled on the motion without a hearing, an
35.1(a) 4 requirements of alleging a prima facie case and the
Arguably the video recording could be considered evidence;
however, the events depicted in the recording are irrelevant to
the issue of reasonable suspicion to effectuate an investigative
stop. See infra ¶ 10.
Arizona Rule of Criminal Procedure 35.1(a) reads:
Unless otherwise specified in these rules,
all motions shall be typewritten, doublespaced on 8.5 x 11 inch paper and shall
Rodriguez v. Arellano, 194 Ariz. 211, 213 n.1, ¶ 3, 979 P.2d
539, 541 n.1 (App. 1999) (accepting special action jurisdiction
to correct a misinterpretation of Rule 16.2).
As explained in
Rodriguez, “It suffices under [Rule 35.1] for a defendant to
defendant to suppression; the obligation to prove a prima facie
contain a short, concise statement of the
precise nature of the relief requested,
shall be accompanied by a brief memorandum
therefor and indicating the precise legal
points, statutes, and authorities relied
upon, and shall be served to all other
Arizona Rule of Criminal Procedure 16.2(b) provides as
Burden of Proof on Pretrial Motions to
Suppress Evidence. The prosecutor shall have
the burden of proving, by a preponderance of
the evidence, the lawfulness in all respects
of the acquisition of all evidence which the
prosecutor will use at trial. However,
whenever the defense is entitled under Rule
15 to discover the circumstances surrounding
the taking of any evidence by confession,
identification or search and seizure, or
defense counsel was present at the taking,
or the evidence was obtained pursuant to a
burden of proof shall arise only after the
defendant has come forward with evidence of
specific circumstances which establish a
prima facie case that the evidence taken
should be suppressed.
case for suppression is imposed by Rule 16.2 and attaches at the
hearing, not the motion, stage.
Id. (emphasis added).
This distinction is particularly important where, as
here, there is no evidence in the record that the investigatory
warrant, either for Lamb or for anyone else for whom he might
have been mistaken.
In State v. Hyde, 186 Ariz. 252, 270, 921
[I]f the challenged evidence was obtained
under authority of a warrant, defendant
bears the burden of going forward with some
evidence was illegally obtained.
challenged evidence was obtained without a
court stated, “this means that a defendant who establishes that
satisfied the burden of going forward under the rule and has
triggered the State’s burden of proving the lawfulness of the
acquisition of the challenged evidence.”
at 215, ¶ 12, 979 P.2d at 543.
Stated differently, a search
adequate justification by the State.
Rodriguez, 194 Ariz.
Id. at 214, ¶ 10, 979 P.2d
carries the day.”); Ariz. R. Crim. P. 16.2(b).
There were five items presented to the trial court:
(1) the defense motion, which included booking photos of the
mistaken for; (2) the State’s response; (3) the defense “offer
of proof”; (4) the State’s “offer of proof”; and (5) the video
The video is irrelevant to the issue of whether the
original stop was valid because it begins too late, with Lamb
prostrate on the ground, and the officers standing over him.
See Ramsey, 223 Ariz. at 484, ¶ 16, 224 P.3d at 981 (reasoning
None of the other items before the court constitute
Offers of proof are to be used in cases where evidence
has been excluded, to show the character of the evidence and
State v. Towery, 186 Ariz. 168, 179, 920 P.2d 290, 301
(1996); Jones v. Pak-Mor Mfg. Co., 145 Ariz. 121, 129, 700 P.2d
evidence, they are merely argument and should not be considered
for substantive merit by a jury, for example.
See Ariz. R.
Evid. 103(c) (“[P]roceedings shall be conducted . . . to prevent
inadmissible evidence from being suggested to the jury by any
means, such as making statements or offers of proof or asking
questions in the hearing of the jury.”).
In short, if it was
resolution based on a stipulated record, it was incumbent on
them (or the trial court) to make that clear.
An offer of proof
Moreover, the offers of proof in this case are not entirely
consistent factually as to the circumstances and reasons for the
When we are presented with a sparse record such as
this, we must vacate and remand because there was no evidentiary
See State v. Grounds, 128 Ariz. 14, 15, 623 P.2d 803,
804 (1981) (vacating ruling and holding that argument of counsel
is not evidence, but that sworn affidavits, stipulated facts,
depositions, and oral testimony are proper evidence in support
of a motion).
We therefore conclude that the trial court erred in
denying the motion to suppress without holding an evidentiary
See Grant v. Ariz. Pub. Serv. Co., 133 Ariz. 434, 455-
without consideration of the evidence).
As the evidence seized
See State v. Blakely, 226 Ariz. 25, ___, ¶ 26, 243
P.3d 628, 635 (App. 2010).
convictions and sentences.
We remand to the trial court with
directions to conduct an evidentiary hearing on Lamb’s motion to
suppress, and to conduct such other proceedings as are necessary
for the resolution of this case.
MICHAEL J. BROWN, Judge
DANIEL A. BARKER, Presiding Judge
MARGARET H. DOWNIE, Judge