February 16th, 2015 | Add a Comment
If you read it carefully, the recent opinion from the Arizona Court of Appeals in State v. Woods can tell you a lot about how criminal appeals work in Arizona. In it, the trial court judge did something very unusual and suppressed evidence obtained during a lawful initial stop and subsequent search of a car because the defendant refused to allow the officer to search some boxes and the officer had no information “to suggest a basis for reasonable suspicion as to the transportation of illegal substances.”
The officer had first found the boxes in question during a supposed consent search. The appellate court wrote that the trial court “acknowledged” that their “consistency and density” was “consistent with his experience with packaging of illegal substances.” The use of the word “acknowledge” alone should probably give you a pretty good idea about whether the appellate court agreed with the trial court’s application of the law to the facts. The trial court judge thought the officer’s beliefs “were far more akin to speculation than reasonable suspicion” and found “that the time of year—late November—and the location of the boxes—the car’s trunk—were consistent with [the defendant]’s statement that the boxes were Christmas gifts.” Also, the trial court mentioned that “’but for’ the discovery of [the defendant]’s prior criminal history of drug activity, ‘the officer would not have found anything to be suspicious about the packages.’”
I could have told you the poor trial court judge would get overturned the moment I read the court of appeals’ explanation of the standard of review:
In reviewing a superior court’s ruling that a detention and consequent search violated the Fourth Amendment, we defer to the superior court’s factual findings, but review de novo mixed questions of law and fact and the superior court’s ultimate legal conclusions about whether the totality of the circumstances warranted an investigative detention and whether its duration was reasonable.
The sort of explanation of the standard of review that you see when the defendant lost and he or she is the one appealing looks like the one that appeared in the decision the same court issued two days later in State v. Chavez:
In reviewing the denial of a motion to suppress, we restrict our review to consideration of the evidence presented at the suppression hearing viewed in the light most favorable to sustaining the superior court’s ruling. We give deference to the court’s factual findings, but review de novo the court’s ultimate legal conclusion.
Where was that “light most favorable” language in Woods? It is a minor difference on paper, but a big one in practice. Think back to the use of “acknowledge” by the appellate court. The trial court “acknowledged” the facts the appellate court cared about, but it did not rule the way they should have caused it to rule. Sound like deference to you? Does it sound like viewing everything in the light most favorable to upholding the trial court?
Did you get the feel from the first that there’s some deference but that legal conclusions are review de novo when it’s just a legal conclusion or even a mix? And in the second one, could you tell that they were looking long and hard and giving lots of weight to the trial court’s decision, viewing the evidence “in the light most favorable?” Reading countless appellate decisions in this state over the years, I have found that the seriousness of the language about the deference given to the trial court’s ruling is often directly related to whether or not the trial court ruled in favor of the defendant or the state. If the defendant won, the appellate court seems to emphasize the fact review is de novo when it comes to mixed questions of law and fact. If the state won, the emphasis is invariably on deference.
The facts of each case I mention above are pretty easy to grasp. In one, a guy consented to a search of his car and the officer found packages he would not allow them to search. They were totally consistent with Christmas gifts, but he had a prior conviction and the officer forced him to wait forty minutes for a drug dog to arrive. He was ultimately convicted when police found the packages contained drugs. In the other, a guy spent two hours stuck on his porch with a cop waiting for another cops after he admitted he had a marijuana card but grew marijuana, which apparently was not okay. In one, the appellate court went out of its way to defer to the cop’s magical drug-detection skills despite the fact the trial court that actually saw and heard the testimony and reached a different conclusion. In the other, the appellate court went along with the charade that a guy being questioned about an admitted marijuana grow operation could have somehow left while he waited for two hours at his house with a cop for a detective to arrive.
I have thought for a while now, and I am sure others have stated before me, that all of our nation’s jurisprudence on criminal law could be understood as a balancing act between two factors: the need to convict, and the need to avoid inconveniencing old white people who are not guilty. In each of the two cases I cite, you have officers making unbelievable claims about the facts, but in each case, you also have defendants who probably broke the law. When the trial judge is realistic and suppresses evidence, he gets shut down by an appellate court that parses the record to support a conviction in the end. When the trial judge buys into a ridiculous version of facts, the appellate court affords a degree of deference bordering on the absurd.
I will never forget the first time I defended an appeal by the state. In casual conversation, a judge I know warned me to be careful, as there was a real chance I would lose. Every time I have been the one appealing, it has been exceedingly clear that I was fighting something akin to Pickett’s Charge. That State v. Woods is a published opinion only feeds cynic in me, strengthening the nagging feeling that bad cases for the defense in criminal matters make their way with ease into the overwhelming body of published law eroding our individual rights. It is hard to not see a case like State v. Woods as plainly intended to discourage trial courts from throwing criminal defendants a bone now and again. It may not be anything special in the grand scheme of things, but it is certainly educational.
Filed under: Arizona Cases, Drugs · Tags: AMMA, appeals, appellate, consent, court, drug dog, grow operation, Marijuana, medical, miranda, packages, search, seizure, sniff, state v. chavez, state v. woods, Trial, wait, waiver