Opinion
No. 2 CA-CR 2019-0068
04-01-2020
The STATE of Arizona, Appellant, v. Paul Larry GASBARRI, Appellee.
Barbara LaWall, Pima County Attorney By Jacob R. Lines, Deputy County Attorney, Tucson Counsel for Appellant James Fullin, Pima County Legal Defender By Jeffrey Kautenburger, Assistant Legal Defender, Tucson Counsel for Appellee
Barbara LaWall, Pima County Attorney By Jacob R. Lines, Deputy County Attorney, Tucson Counsel for Appellant
James Fullin, Pima County Legal Defender By Jeffrey Kautenburger, Assistant Legal Defender, Tucson Counsel for Appellee
Presiding Judge Staring authored the opinion of the Court, in which Chief Judge Vásquez and Judge Brearcliffe concurred.
OPINION
STARING, Presiding Judge:
¶1 Despite acts and omissions by the state that, at the very least, evince incomprehensible inattention to a very significant case, we are constrained to conclude the trial court erred as a matter of law by granting Paul Gasbarri's motion to suppress evidence seized from a cell phone found in his possession. We therefore reverse.
Factual and Procedural Background
¶2 In February 2018, Gasbarri was charged with first-degree murder, armed robbery, aggravated robbery, kidnapping, aggravated assault with a deadly weapon or dangerous instrument, and two counts of possession of a deadly weapon by a prohibited possessor. On January 4, 2019, he filed a motion to suppress all evidence obtained from the allegedly unlawful seizure of a cell phone found in his possession during the investigation. The trial court set the motion for hearing on February 5. The state did not file a response to the motion within the ten-day period provided by Rule 1.9(b), Ariz. R. Crim. P., prompting Gasbarri to file a motion to preclude or strike any subsequent response from the state. Only then did the state file a motion seeking additional time to respond to the motion to suppress, citing the fact that the "[p]rosecutor was in [a two] week murder trial which concluded on Thursday, January 24, 2019." The court noted the murder trial to which the state referred "commenced on January 15, 2019—one day AFTER the State's response was due," but nevertheless extended the state's response deadline to January 30.
¶3 Despite seeking and obtaining an extension, the state, without providing any explanation, again failed to respond to the motion to suppress. The trial court then deemed Gasbarri's motion to suppress submitted on the record.
The state is represented by a different deputy county attorney on appeal.
Rule 1.9(b) in part provides: "If no response is filed, the court may deem the motion submitted on the record."
¶4 On February 5, the trial court granted the state's motion to continue the suppression hearing until February 11, and offered the parties the opportunity to provide "concurrent briefing" on what "submitted on the record" means. Discussing the opportunity to provide briefing, the court said: "Does [submitted on the record] mean that [the state] can't present any evidence or is just limited in presenting evidence and can't argue the matter so—and if you get those pleadings to me maybe by Friday of this week so I'll have a chance to read them over." The court also stated: "And then we can take that up first thing and then have the hearing if necessary." Gasbarri filed briefing in response to the court's inquiry; the state failed to do so.
¶5 At the February 11 suppression hearing, the trial court noted the state's failure to provide briefing but gave both parties an opportunity to argue their positions. The state argued: "[T]he Court has an obligation to listen to the testimony that is provided to [it].... The pleadings are simply argument for the Court to consider. The actual evidence is evidence presented at the time of the hearing, and that's what we were planning on doing." The court denied the state's request to call witnesses and determined that the record before it was limited to Gasbarri's motion to suppress. In granting Gasbarri's motion, the court concluded he had established the cell phone was seized "without lawful authority" and had satisfied his burden of going forward under Rule 16.2(b), Ariz. R. Crim. P., thus triggering the state's burden of proving the lawfulness of the acquisition of the cell phone.
The trial court subsequently denied the state's motion for reconsideration of its "decision to not allow the State to call its witnesses during an Evidentiary Hearing."
¶6 At the state's request, the court dismissed the murder, armed robbery, aggravated robbery, kidnapping, and aggravated assault charges without prejudice for purposes of this appeal. We have jurisdiction pursuant to article VI, § 9 of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4032(A)(6).
Discussion
¶7 We review a trial court's ruling on a motion to suppress evidence for an abuse of discretion, State v. Nelson , 208 Ariz. 5, ¶ 4, 90 P.3d 206, 207 (App. 2004), and we will not reverse absent clear and manifest error, State v. Hyde , 186 Ariz. 252, 265, 921 P.2d 655, 668 (1996). Ordinarily, we consider only the evidence presented at the suppression hearing and view it in the light most favorable to sustaining the court's ruling. Nelson , 208 Ariz. 5, ¶ 4, 90 P.3d at 207. Here, however, because the state failed to respond to Gasbarri's motion, the trial court deemed the motion submitted on the record and, therefore, neither party presented evidence or testimony.
¶8 Rule 16.2, which governs the procedure of pretrial motions to suppress, provides, in subsection (b)(1), that the state "has the burden of proving by a preponderance of the evidence the lawfulness in all respects of the acquisition of all evidence that [it] will use at trial." But, if "the evidence involves a confession, identification, search, or seizure, and the defendant is entitled under Rule 15[, Ariz. R. Crim. P.,] to discover how the evidence was obtained," the state's burden under Rule 16.2(b)(1) "arises only after the defendant alleges specific circumstances and establishes a prima facie case supporting the suppression of the evidence at issue." Ariz. R. Crim. P. 16.2(b)(2) (emphasis added). Thus, the rule puts the "burden of going forward" on a defendant who "moves to suppress evidence that the state has obtained under defined circumstances." Hyde , 186 Ariz. at 266, 921 P.2d at 669. And, the party who bears the burden of going forward must "produce sufficient preliminary evidence before the party with the burden of persuasion must proceed with its evidence." Id.
¶9 At oral argument in this court, Gasbarri asserted the current version of Rule 16.2(b) substantively differs from the version in effect at the time Hyde and other relevant cases cited herein were decided. That version, enacted in 1973, required defendants to "come forward with evidence of specific circumstances which establish a prima facie case that the evidence taken should be suppressed." Gasbarri argued the current version eliminates the requirement that a defendant produce evidence to establish a prima facie case. We disagree.
¶10 We review the interpretation of criminal procedure rules de novo, State v. Salazar-Mercado , 234 Ariz. 590, ¶ 4, 325 P.3d 996, 998 (2014), first looking to the plain language because that is "the best and most reliable index of [the rule's] meaning," State v. Hansen , 215 Ariz. 287, ¶ 7, 160 P.3d 166, 168 (2007) (quoting Deer Valley Unified Sch. Dist. No. 97 v. Houser , 214 Ariz. 293, ¶ 8, 152 P.3d 490, 493 (2007) ). And, we will not interpret court rules in a way that renders any provision superfluous. Balestrieri v. Balestrieri, 232 Ariz. 25, ¶ 3, 300 P.3d 560, 561 (App. 2013). The plain language of the current version of Rule 16.2(b) requires a defendant to both "allege[ ] specific circumstances" and "establish[ ] a prima facie case" supporting suppression of the evidence. Applying the principles of interpretation, the two are not the same. Thus, contrary to Gasbarri's argument, the change in Rule 16.2(b) does not alter the requirement that a defendant offer evidence to establish a prima facie case. See Ariz. Sup. Ct. Order R-17-0002 (Aug. 31, 2017); see also Mark Meltzer & John W. Rogers, Useful Things to Know About the Revised Criminal Rules , 8 (Oct. 27, 2017), www.azcourts.gov/Portals/20/2017% 20Rules/Useful% 20Things.final.pdf.
¶11 Our supreme court has described what constitutes evidence as follows:
Argument of counsel is not evidence. Among other things, sworn affidavits, stipulated
facts, depositions, and oral testimony might be introduced to support a claim of disclosure or to counter such a claim. The record here is devoid of evidence; therefore, there is nothing before this court by which we can review the trial court's ruling nor was there anything before the trial court upon which to base its ruling.
State v. Grounds , 128 Ariz. 14, 15, 623 P.2d 803, 804 (1981). Thus, "[b]y argument and legal theory, a defendant may persuade the trial court that based upon the evidence presented a prima facie case for suppression has been presented, but there must be evidence first." State v. Fimbres, 152 Ariz. 440, 442, 733 P.2d 637, 639 (App. 1986). That is, a trial court must first have evidence—not merely arguments of counsel—on which it can base its ruling before it may rule on a motion to suppress.
¶12 On appeal, the state argues the trial court "abused its discretion by granting [Gasbarri's] motion to suppress based solely on the prosecutor's failure to file a response to the motion." In support of its argument, the state asserts the court could have decided the motion "on its merits without the written response" after hearing testimony and argument. It further contends the court erred in deeming Gasbarri's motion submitted on the record under Rule 1.9(b) because there was no "record" for the court to consider, as the court did not have evidence consisting of affidavits, transcripts, exhibits, police reports, or photographs. Thus, the state argues, "the only ‘record’ for the court to rely on was the fact section of [Gasbarri's] motion, which is not evidence." The state also argues that because Rule 16.2(b)(1) provides that the state has the burden of proving the lawfulness of its acquisition of evidence, the rule presupposes the state will have an opportunity to present evidence of such lawfulness at a hearing "because facts presented in a pleading are not evidence."
During oral argument, Gasbarri argued the state did not sufficiently raise or develop this contention and therefore we should not consider it. We disagree and conclude the state adequately raised this argument in its opening brief. See Ariz. R. Crim. P. 31.10(a)(7).
Additionally, the state asserts in its opening brief that the trial court's suppression order was "a disproportionate sanction" for failing to file a response. During oral argument, however, the state indicated this was not its argument. In any event, our disposition of this case does not require addressing this issue. Similarly, we need not address the state's policy arguments about the exclusion of evidence or its contention that the court erred in deeming Gasbarri's motion submitted on the record.
¶13 Gasbarri argues the trial court "did not abuse its discretion when it ruled on [his] motion to suppress without a hearing because the state never timely asserted that any factual or legal dispute existed." Because the state did not respond, he asserts it "essentially conced[ed] the issue." And, Gasbarri does not argue he did not have the burden of establishing a prima facie case for suppression under Rule 16.2(b), but rather that he met this burden because he "set forth the detailed factual basis—clearly adopted from the state's disclosure of police reports" in his motion to suppress. Thus, he asserts, the burden shifted to the state to invoke "whatever exceptions it thought applied to support the lawfulness of the seizure at issue."
Gasbarri identifies no authority, and we find none, indicating the burden of establishing a prima facie case under the current version of Rule 16.2(b) is satisfied by mere allegations. Generally, in both the criminal and civil contexts, establishing a prima facie case requires more. See, e.g. , In re Marriage of Peck , 242 Ariz. 345, ¶¶ 6-7, 395 P.3d 734, 737 (App. 2017) (when defendant challenges personal jurisdiction, plaintiff must make prima facie showing by coming forward with "facts, established by affidavit or otherwise, supporting jurisdiction"); State v. Peraza, 239 Ariz. 140, ¶¶ 25-27, 366 P.3d 1030, 1037 (App. 2016) (records showing testing equipment in proper working order before and after blood alcohol test prima facie evidence it worked at time of test); Arpaio v. Figueroa , 229 Ariz. 444, ¶ 12, 276 P.3d 513, 517 (App. 2012) (party seeking certain evidence to support punitive damages claim must make prima facie showing, and can do so "through discovery, by evidentiary means or through an offer of proof" (quoting Larriva v. Montiel , 143 Ariz. 23, 26, 691 P.2d 735, 738 (App. 1984) )); State v. Jordan , 171 Ariz. 62, 65, 828 P.2d 786, 789 (App. 1992) (requiring more than allegation of discrimination in jury selection); Civil Rights Div. v. Amphitheater Unified Sch. Dist., 140 Ariz. 83, 85, 680 P.2d 517, 519 (App. 1983) (to establish prima facie case under disparate impact theory of discrimination, plaintiff must show business practice exists and has effect of discriminating against protected group).
¶14 We find Fimbres instructive. In Fimbres , 152 Ariz. at 441, 733 P.2d at 638, the defendant moved to suppress both physical evidence and statements he had made to police, referencing an attached police report. After the prosecutor failed to timely file responsive pleadings and arrived late and unprepared to call his witnesses, the trial court refused to postpone the suppression hearing and did not permit the state to file its written response to the motions. Id. The court ordered the motions "submitted on the record," stated "[it] had read the defendant's [motion]," and granted the motion to suppress both the statements and the physical evidence. Id.
¶15 On appeal in Fimbres , we reached separate conclusions as to the suppression of physical evidence and the suppression of statements. As to the physical evidence, we determined "[t]he suppression order was entered with no evidence to establish even a prima facie case" as required by Rule 16.2(b). Id. Thus, the police report referenced in and attached to the defendant's motion was insufficient to establish a prima facie case for suppression of physical evidence. Id. at 441-42, 733 P.2d at 638–39. And, notably, we did not treat the state's lack of response as a concession. Id.
Although Gasbarri cites Fimbres for the proposition that a court does not abuse its discretion by granting a defendant's motion to suppress without an evidentiary hearing when a prima facie presumption is established and no responsive pleading is timely filed, this is the court's conclusion as to the defendant's statements "because of the presumption that the statements are involuntary." 152 Ariz. at 442, 733 P.2d at 639. "No such presumption exists with reference to the search and seizure of physical evidence." Id.
¶16 Gasbarri argues that Rodriguez v. Arellano , decided thirteen years after Fimbres , clarified the burden-of-proof requirement under Rule 16.2(b) by explaining: "To establish the presumptive invalidity of a search is to establish a prima facie case for suppression; an unrebutted presumption carries the day." 194 Ariz. 211, ¶ 10, 979 P.2d 539, 542 (App. 1999). He claims the defendant in Rodriguez established the presumptive invalidity of the search, and therefore a prima facie case for suppression, by filing a motion to suppress that "set forth facts and circumstances of the search and seizure, alleged that the search was conducted without a warrant, pointed out that warrantless searches are presumptively unreasonable under the Fourth Amendment, and provided authority for that proposition." Id. ¶ 2. Thus, Gasbarri argues, "marrying the logic of Fimbres with the burden clarification of Rodriguez , the trial court here was well within its broad discretion to grant [his] motion to suppress without a hearing, given that he established a prima facie case for suppression through his pleading, which the state never challenged."
¶17 Gasbarri, however, not only overlooks the plain language of Rule 16.2(b), as noted, but also that the substantial question addressed in Rodriguez was whether the defendant had "satisfied the prima facie proof requirements of Rule 16.2 by establishing, through the State's concession , the uncontested fact that the evidence urged to be suppressed was the product of a warrantless search." 194 Ariz. 211, n.1, 979 P.2d at 541, n.1 (emphasis added). There, the state affirmatively conceded at the suppression hearing that police had seized the evidence during a warrantless search. Id. ¶ 3. Here, although the state failed to respond to Gasbarri's motion, it did not affirmatively concede the cell phone was seized without a warrant. Rodriguez is also distinguishable because the issue there was whether a defendant could satisfy the burden of going forward under Rule 16.2(b) by proving the lack of a warrant—not whether he could satisfy his burden by merely alleging the lack of a warrant. Id. ¶ 1. Further, Rodriguez does not eliminate the evidence requirement under Rule 16.2(b). Thus, evidence is still required to establish a presumption of invalidity. See id. ; see also Ariz. R. Crim. P. 16.2(b). Gasbarri, however, did not submit any evidence to support his allegation that the seizure was warrantless.
In response to questioning at oral argument, the state conceded that had Gasbarri submitted evidence such as an affidavit along with his motion, the state would have had difficulty challenging the suppression ruling.
¶18 We recognize the trial court's broad discretion in the management of its docket, see
Findlay v. Lewis , 172 Ariz. 343, 346, 837 P.2d 145, 148 (1992), as well as its authority to deem a motion submitted on the record under Rule 1.9(b). And we readily acknowledge the state's disturbing conduct, including the failure to file a written response even after moving for and obtaining an extension of time. Indeed, the prosecutor's statements at the February 11 hearing raise the question of whether the state ever intended to file a response to the motion to suppress, or always planned to present evidence without providing general notice of its nature, notwithstanding the court stating the first issue addressed on February 11 would be the meaning of "submitted on the record." Nevertheless, the court did not have before it any evidence to provide a basis for its ruling; Gasbarri's allegations, although based on the state's disclosure, are insufficient to establish a prima facie case for suppression. See Fimbres , 152 Ariz. at 441-42, 733 P.2d at 638–39. Thus, we conclude the court erred by granting Gasbarri's motion to suppress. See Grounds , 128 Ariz. at 15, 623 P.2d at 804 ; Merlina v. Jejna , 208 Ariz. 1, ¶ 6, 90 P.3d 202, 204 (App. 2004) (abuse of discretion may occur if record fails to support decision); State v. Sandoval , 175 Ariz. 343, 347, 857 P.2d 395, 399 (App. 1993) (abuse may result from exercise of discretion "on untenable grounds"); see also Grant v. Ariz. Pub. Serv. Co. , 133 Ariz. 434, 455-56, 652 P.2d 507, 528–29 (1982) (noting abuse of discretion occurs when a discretionary conclusion is reached without consideration of the evidence).
As the state concedes, "The language of the [r]ule is permissive rather than mandatory—a trial court ‘may’ deem the motion submitted if there is no response."
As the trial court noted, "[A] response to a motion puts the other party (and the Court) on notice of how they intend to defend the motion and upon what facts, case law, statute or rule of procedure they are relying.... This in turn allows the opposing party to meaningfully prepare by researching the authority provided and to prepare to examine the witnesses based upon the theories proffered in the response."
Disposition
¶19 For the foregoing reasons, we reverse the trial court's ruling without prejudice to Gasbarri's right to again seek suppression should the state reinstitute the charges against him. Further, we do not suggest the appropriate outcome of any future suppression proceedings, leaving that determination for the court in the first instance.
Nor do we preclude the trial court from considering whether sanctions should issue against the state, or the permissible form of any sanctions. See Fimbres , 152 Ariz. at 442, 733 P.2d at 639 (suggesting inherent power to sanction misconduct); cf. Hmielewski v. Maricopa County , 192 Ariz. 1, ¶ 14, 960 P.2d 47, 48 (App. 1997) ("inherent power to sanction bad faith conduct" in civil litigation). And, we are providing a copy of this opinion to the State Bar of Arizona's disciplinary counsel for consideration of whether to investigate for purposes of attorney discipline.