State v. Lamb

Annotate this Case

Download PDF

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DIVISION ONE FILED: 06/09/2011 RUTH A. WILLINGHAM, CLERK BY: GH No. 1 CA-CR 09-0622 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2009-006230-001 DT The Honorable Roland Steinle,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

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.