NOTICE:
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
DIVISION ONE
STATE OF ARIZONA,
)
)
Appellee, )
)
v.
)
)
DAVID LEE LAMB,
)
)
Appellant. )
__________________________________)
DIVISION ONE
FILED: 06/09/2011
RUTH A. WILLINGHAM,
CLERK
BY: GH
No. 1 CA-CR 09-0622
DEPARTMENT C
MEMORANDUM DECISION
(Not for Publication Rule 111, Rules of the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
Phoenix
James J. Haas, Maricopa County Public Defender
By Eleanor S. Terpstra, Deputy Public Defender
Attorneys for Appellant
Phoenix
B R O W N, Judge
¶1
David
Lee
Lamb
appeals
from
his
convictions
and
sentences for one count of possession of marijuana and one count
of possession of a narcotic drug.
Lamb argues that the trial
court
erred
to
seized
by
Because
in
denying
his
police
following
defendant
requested
the
the
motion
his
a
suppress
drug
evidence
and
arrest.
detention
hearing
and
it
was
not
granted, we vacate the convictions and sentences and remand for
further proceedings. 1
BACKGROUND
¶2
In April 2009, Lamb was indicted for possession of a
narcotic
drug,
possession
of
marijuana,
and
threatening
intimidating another by a street gang member.
or
Lamb filed a
timely motion to suppress, asserting the police officers lacked
reasonable
suspicion
to
conduct
an
investigatory
stop.
The
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
cause
to
arrest
the
defendant
because
he
failed
to
identify
himself. 2
1
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
credit.
2
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.
2
¶3
A jury found Lamb guilty on the two drug charges, but
not guilty on the intimidation charge.
Lamb timely appealed.
DISCUSSION
¶4
and
The Fourth Amendment prohibits unreasonable searches
seizures,
but
investigatory
officer’s
stop
reasonable
is
permissible
suspicion
of
when
supported
by
activity.
State v. Rogers, 186 Ariz. 508, 510, 924 P.2d 1027,
1029 (1996).
an
an
criminal
Officers may conduct a weapons frisk if there is a
reasonable fear for safety.
Terry v. Ohio, 392 U.S. 1, 27
(1968).
¶5
fact.
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,
articulable
facts,
from those facts.”
224
P.3d
977,
981
along
with
rational
inferences
that
arise
State v. Ramsey, 223 Ariz. 480, 484, ¶ 17,
(App.
2010).
Evidence
gained
from
an
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).
When considering
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
grounds.
3
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
¶6
that
In his motion to suppress, Lamb specifically requested
the
court
conduct
an
evidentiary
hearing.
The
record,
however, is silent as to why there was no hearing conducted or
why each party submitted an offer of proof.
the
court
established
its
requirements
for
By minute entry,
pretrial
motions,
stating that “[a]ll motions must comply with Rule 35.1 including
setting
forth
a
sufficient
factual
basis
for
the
motion.
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.
¶7
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
important
distinction
exists
between
the
Rule
35.1(a) 4 requirements of alleging a prima facie case and the
3
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.
4
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
4
necessity
to
prove
a
prima
facie
case
under
Rule
16.2(b). 5
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
make
allegations
of
fact
that,
if
proved,
would
entitle
the
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
stating
the
specific
factual
grounds
therefor and indicating the precise legal
points, statutes, and authorities relied
upon, and shall be served to all other
parties.
5
Arizona Rule of Criminal Procedure 16.2(b) provides as
follows:
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
valid
search
warrant,
the
prosecutor’s
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.
5
case for suppression is imposed by Rule 16.2 and attaches at the
hearing, not the motion, stage.
¶8
Id. (emphasis added).
This distinction is particularly important where, as
here, there is no evidence in the record that the investigatory
stop
or
the
subsequent
arrest
and
seizure
were
based
on
a
warrant, either for Lamb or for anyone else for whom he might
have been mistaken.
P.2d
655,
673
In State v. Hyde, 186 Ariz. 252, 270, 921
(1996),
our
supreme
court
explained
the
warrant/warrantless dichotomy:
[I]f the challenged evidence was obtained
under authority of a warrant, defendant
bears the burden of going forward with some
evidence
to
show
that
the
challenged
evidence was illegally obtained.
If the
challenged evidence was obtained without a
warrant,
the
state
carries
the
entire
evidentiary burden.
¶9
Applying
the
dichotomy
to
Rule
16.2,
the
Rodriguez
court stated, “this means that a defendant who establishes that
evidence
was
seized
pursuant
to
a
warrantless
search
has
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.
without
a
warrant
is
Stated differently, a search
presumptively
adequate justification by the State.
6
Rodriguez, 194 Ariz.
unreasonable
and
requires
Id. at 214, ¶ 10, 979 P.2d
at
542
(“[A]n
unrebutted
presumption
[of
unreasonableness]
carries the day.”); Ariz. R. Crim. P. 16.2(b).
¶10
There were five items presented to the trial court:
(1) the defense motion, which included booking photos of the
defendant
and
another
man
whom
the
defendant
alleged
he
was
mistaken for; (2) the State’s response; (3) the defense “offer
of proof”; (4) the State’s “offer of proof”; and (5) the video
recording.
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
that
seizure
authority).
begins
when
the
defendant
yields
to
police
None of the other items before the court constitute
evidence.
¶11
Offers of proof are to be used in cases where evidence
has been excluded, to show the character of the evidence and
allow
for
review.
reconsideration
by
the
trial
court
and
appellate
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
819,
827
(1985).
Until
offers
of
proof
are
substantiated
by
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
7
means, such as making statements or offers of proof or asking
questions in the hearing of the jury.”).
the
parties’
intent
to
submit
the
In short, if it was
suppression
motion
for
resolution based on a stipulated record, it was incumbent on
them (or the trial court) to make that clear.
is
not
synonymous
with
submission
on
a
An offer of proof
stipulated
record.
Moreover, the offers of proof in this case are not entirely
consistent factually as to the circumstances and reasons for the
investigatory stop.
¶12
When we are presented with a sparse record such as
this, we must vacate and remand because there was no evidentiary
hearing
ruling.
and
no
evidence
offered
to
provide
a
basis
for
the
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).
¶13
We therefore conclude that the trial court erred in
denying the motion to suppress without holding an evidentiary
hearing.
See Grant v. Ariz. Pub. Serv. Co., 133 Ariz. 434, 455-
56,
P.2d
652
discretion
507,
occurs
528-29
when
a
(1982)
(noting
discretionary
without consideration of the evidence).
by
the
police
in
this
case
an
conclusion
abuse
is
of
reached
As the evidence seized
constituted
8
that
the
key
evidence
supporting
vacated.
the
jury
verdicts,
Lamb’s
convictions
must
be
See State v. Blakely, 226 Ariz. 25, ___, ¶ 26, 243
P.3d 628, 635 (App. 2010).
CONCLUSION
¶14
For
the
foregoing
convictions and sentences.
reasons,
we
vacate
Lamb’s
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.
/s/
_________________________________
MICHAEL J. BROWN, Judge
CONCURRING:
/s/
_________________________________
DANIEL A. BARKER, Presiding Judge
/s/
_________________________________
MARGARET H. DOWNIE, Judge
9
