Petition for Writ of Certiorari — Ian Mitcham, Petitioner v. Arizona

No. ____________

IN THE

Supreme Court of the United States

___________________

IAN MITCHAM,

Petitioner,

v.

STATE OF ARIZONA,

___________________

Respondent.

On Petition for Writ of Certiorari

To the Arizona Supreme Court

APPENDIX

Mikel Steinfeld

Counsel of Record

Martha Barco Penunuri

Jeffrey Kirchler

Richard Randall

MARICOPA COUNTY PUBLIC

DEFENDER’S OFFICE

620 West Jackson, Suite 4015

Phoenix, Arizona 85003

(602) 506-7711

Mikel.Steinfeld@Maricopa.gov

Counsel for Petitioner

APPENDIX CONTENTS

Appendix Page(s)

Appendix A: CR 2018-118086-001 DT, Minute Entry 12/19/2022............................. 1a

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Clerk of the Superior Court

*** Electronically Filed ***

12/22/2022 8:00 AM

SUPERIOR COURT OF ARIZONA

MARICOPA COUNTY

CR2018-118086-001 DT

12/19/2022

CLERK OF THE COURT

A. Rowe

Deputy

HONORABLE ROY C. WHITEHEAD

STATE OF ARIZONA

ERIN O OTIS

JESSI WADE

v.

IAN L MITCHAM (001)

JEFFREY A KIRCHLER

MARTHA V. BARCO PENUNURI

RICHARD RANDALL

CAPITAL CASE MANAGER

JUDGE WHITEHEAD

JESSICA ANN GATTUSO

MINUTE ENTRY

The Court has read and considered Defendant’s “Motion to Suppress Illegally Obtained

DNA Evidence,” the State’s Response, and Defendant’s Reply. Additionally, the Court has

considered the evidence presented at the evidentiary hearing on December 9, 2022, along with

the arguments of the parties.

The factual basis for Defendant’s motion is undisputed. Scottsdale Police arrested

Defendant on January 8, 2015, on suspicion of driving under the influence. During the DUI

investigation, a Scottsdale Police officer read Defendant the “Admin Per Se/Implied Consent

Affidavit” admonition (Exhibit 1). The admonition advised Defendant that he must consent to

the collection and testing of a blood or breath sample, otherwise his license would be suspended

for 12 months. Defendant consented and police collected two vials of his blood. One vial was

meant to be tested by the State in the course of its investigation, while the other vial was meant

to be independently tested on Defendant’s behalf if he so elected. Defendant was told and signed

a DUI Blood/Urine Results Destruction Notice which stated that the second vial of blood would

be destroyed after 90 days if a request for testing was not made (Exhibit 2).

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Defendant’s blood, however, was never destroyed. Instead, Scottsdale Police retained

custody of the vials until late 2017, when Defendant became a suspect in the 2015 killing and

sexual assault of Allison Feldman. After Ms. Feldman died in 2015, police collected biological

evidence from the crime scene and developed a DNA profile of her suspected killer. Police

entered the DNA profile into the CODIS database, but found no matches. The case went cold

until then Sgt. Lockerby received approval to conduct a familial DNA investigation in 2017.

Pursuant to the new investigative technique police learned that the unknown DNA profile

belonged to a first-degree male relation, either a son, brother, or father, of Mark Mitcham.

Police soon learned that Mark Mitcham had two brothers in the Phoenix-Metro area,

including Defendant Ian Mitcham. Police began surveilling the brothers, but focused on

Defendant based on his arrest history in Scottsdale. After reviewing his files in the Scottsdale

Police Department, Sgt. Lockerby learned about the two blood vials in the agency’s possession.

Sgt. Lockerby, now Lt. Lockerby, testified at the evidentiary hearing that he requested the

analysis of Defendant’s blood without getting a warrant because he did not think he needed to

get one, and that Defendant did not have a reasonable expectation of privacy in the two blood

vials. A subsequent analysis of the blood vials generated a DNA profile that matched the profile

found at the scene of the crime. Police later obtained a search warrant to collect a buccal swap

from Defendant, and the evidence collected pursuant to that warrant matched as well.

“The right of the people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated….” U.S. Const. amend. IV. “The

touchstone of the Fourth Amendment is reasonableness.” Florida v. Jimeno, 500 U.S. 248, 250

(1991). While “[i]t is well settled under the Fourth and Fourteenth Amendments that a search

conducted without a warrant issued upon probable cause is per se unreasonable…. [i]t is equally

well settled that one of the specifically established exceptions to the requirements of both a

warrant and probable cause is a search that is conducted pursuant to consent.” Schneckloth v.

Bustamonte, 412 U.S. 218, 219 (1973) (internal quotations omitted); see also State v. Butler, 232

Ariz. 84, 88 ¶¶ 16–18 (2013) (discussing consent for warrantless blood draw under Arizona

implied consent statute, A.R.S. § 28–1321(A)).

“The standard for measuring the scope of a suspect's consent under the Fourth

Amendment is that of ‘objective’ reasonableness—what would the typical reasonable person

have understood by the exchange between the officer and the suspect?” Florida v. Jimeno, 500

U.S. 248, 251 (1991). “When an official search is properly authorized—whether by consent or

by the issuance of a valid warrant—the scope of the search is limited by the terms of its

authorization.” Walter v. United States, 447 U.S. 649, 656, 100 S. Ct. 2395, 2401, 65 L. Ed. 2d

410 (1980). “Determining the validity of a law enforcement officer's search based on consent

generally involves two factors: (1) whether the consent was voluntarily given and (2) whether the

search was within the scope of the consent.” State v. Becerra, 239 Ariz. 90, 92 ¶ 8 (App. 2016);

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see also Walter, 447 U.S. at 654 (“The fact that FBI agents were lawfully in possession of the

boxes of film did not give them authority to search their contents.”) Because Defendant

consented to the taking and analysis of his blood for drug or alcohol testing, the subsequent DNA

analysis of his blood exceeded the scope of his consent.

The State argues that this case represents an analog to that in Maryland v. King, 569 U.S.

435 (2013), and that because Defendant’s blood was collected for a proper purpose then he had

no reasonable expectation of privacy in that blood and the State could properly conduct a DNA

analysis without first obtaining a warrant. As the Court summarized in King, “[w]hen officers

make an arrest supported by probable cause to hold for a serious offense and they bring the

suspect to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is,

like fingerprinting and photographing, a legitimate police booking procedure that is reasonable

under the Fourth Amendment.” 569 U.S. at 465–66. Insofar as Defendant was arrested for a

misdemeanor offense, this Court finds King largely inapplicble.

Where King may be applicable, because Defendant consented to having his blood drawn,

is in the context of the subsequent DNA analysis of his blood. As King notes, “[t]he argument

that the testing at issue in this case reveals any private medical information at all is open to

dispute.” Id. at 464. The Court reasons that the 13 CODIS loci used for DNA identification did

not “reveal the genetic traits of the arrestee” but that additional privacy concerns may be

implicated in the future if police begin using DNA analysis for purposes other than

identification. Id. at 464–65. But see Mario W. v. Kaipio, 230 Ariz. 122, 128 ¶ 27 (2012) (“This

second search presents a greater privacy concern than the buccal swab because it involves the

extraction (and subsequent publication to law enforcement nationwide) of thirteen genetic

markers from the arrestee's DNA sample that create a DNA profile effectively unique to that

individual.”) As Defendant notes in his reply, law enforcement DNA testing has progressed

beyond that discussed in King, and appears to provide the very kind of information the Court

thought could transform the privacy interest an individual has in their DNA. Finally, however,

the Court reasoned that the subsequent DNA analysis did not infringe on a reasonable

expectation of privacy because the Maryland statute at issue “provides statutory protections that

guard against further invasion of privacy.” King, 569 U.S. at 465.

The DNA analysis here, of course, was not conducted pursuant to any statutory authority,

aside from the general authority bestowed upon the State to investigate crime. That authority,

however, is constrained by the strictures of the Fourth Amendment. Because the touchstone of

the Fourth Amendment is reasonableness, this Court finds that, under these facts, Defendant had

an objectively reasonable expectation of privacy in his blood and that the State did not have a

compelling interest to search his blood through a DNA analysis without first obtaining a warrant.

See e.g., State v. Martinez, 570 S.W.3d 278, 292 (Tex. Crim. App. 2019) (“[T]here is a Fourth

Amendment privacy interest in blood that has already been drawn for medical purposes. In this

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case, Appellee had a subjective expectation of such a privacy interest in his blood, and the State's

subsequent testing of the blood was a Fourth Amendment search separate and apart from the

seizure of the blood by the State.”); see also State v. Granville, 423 S.W.3d 399, 426 (Tex. Crim.

App. 2014) (“What Walter [v. United States, 447 U.S. 649 (1980)] shows is that some types of

property have both a physical dimension and an informational dimension and that a defendant's

subjective expectation of privacy can attach to either or both. Even if a defendant's subjective

expectation of privacy has been entirely frustrated with respect to the physical dimension of such

property, he may yet retain a subjective expectation with respect to the informational

dimension.”)

“[E]vidence seized during an unlawful search [cannot] constitute proof against the victim

of the search” and “extends as well to the indirect as the direct products of the search.” Wong

Sun v. United States, 371 U.S. 471, 484 (1963). The State argues that identification evidence is

not suppressible, but this Court finds that the DNA evidence at issue is much like fingerprint

evidence, which the Supreme Court has long held may be suppressed. See Davis v. Mississippi,

394 U.S. 721, 723–24 (1969); Hayes v. Florida, 470 U.S. 811, 813–15 (1985). Accordingly,

absent come exception to the exclusionary rule, the evidence at issue must be suppressed.

The State argues that the inevitable discovery doctrine applies in this case, because the

State would have obtained a DNA sample from Defendant by surveillance, a ruse, or through the

disposition of Defendant’s aggravated DUI or possession of narcotic drug cases. “Illegally

obtained physical evidence may be admitted if the State can demonstrate by a preponderance of

the evidence that such evidence inevitably would have been discovered by lawful means.” State

v. Davolt, 207 Ariz. 191, 204 (2004) (citing Nix v. Williams, 467 U.S. 431, 111 (1984)). But, as

Defendant notes in his reply, “inevitable discovery involves no speculative elements but focuses

on demonstrated historical facts capable of ready verification or impeachment.” Nix, 467 U.S. at

444 n.5.

At the evidentiary hearing the State did not provide evidence concerning lawful efforts to

obtain Defendant’s DNA through surveillance or ruse, or how successful law enforcement is in

obtaining DNA through those methods. And, as Defendant notes, the State cannot demonstrate

that it would have been able to obtain his DNA sample through the disposition of his pending

cases without assuming that Defendant was guilty of those offenses. This is all to say that

application of the inevitable discovery doctrine in this relies solely on speculation, and such

speculation alone cannot sustain the State’s burden. Because the State failed to demonstrate by a

preponderance of the evidence that it would have been able to lawfully obtain Defendant’s DNA

sample by surveillance, ruse, or through the disposition of his pending criminal cases, inevitable

discovery is not appropriate.

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“[E]ven assuming that the [exclusionary] rule effectively deters some police misconduct

and provides incentives for the law enforcement profession as a whole to conduct itself in accord

with the Fourth Amendment, it cannot be expected, and should not be applied, to deter

objectively reasonable law enforcement activity.” United States v. Leon, 468 U.S. 897, 918–19

(1984). The good-faith exception accordingly sanctions “searches conducted in objectively

reasonable reliance on binding appellate precedent” and does not subject the fruits of such

searches to exclusion. Davis v. United States, 564 U.S. 229, 232 (2011). As the Arizona Supreme

Court recently propounded on the topic of exclusion:

“The exclusionary rule, which allows suppression of evidence obtained in

violation of the Fourth Amendment, is a prudential doctrine invoked [solely] to

deter future violations.” Valenzuela II, 239 Ariz. at 308–09 ¶ 31, 371 P.3d at 636–

37 (citing Davis v. United States, 564 U.S. 229, 236–37, 131 S.Ct. 2419, 180

L.Ed.2d 285 (2011)). “Exclusion is ‘not a personal constitutional right,’ nor is it

designed to ‘redress the injury’ occasioned by an unconstitutional search.” Davis,

564 U.S. at 236, 131 S.Ct. 2419 (quoting Stone v. Powell, 428 U.S. 465, 486, 96

S.Ct. 3037, 49 L.Ed.2d 1067 (1976)). Because “a deterrence purpose can only be

served when the evidence to be suppressed is derived from a search which the

[police] knew or should have known was unconstitutional under the Fourth

Amendment,” United States v. Johnson, 457 U.S. 537, 565, 102 S.Ct. 2579, 73

L.Ed.2d 202 (1982) (White, J., dissenting), the rule is intended to deter only

“deliberate, reckless, or grossly negligent conduct, or in some circumstances

recurring or systemic negligence.” Herring v. United States, 555 U.S. 135, 144,

129 S.Ct. 695, 172 L.Ed.2d 496 (2009). Therefore, “when the police act with an

objectively reasonable good-faith belief that their conduct is lawful, or when their

conduct involves only simple, isolated negligence,” the good-faith exception

applies because “the deterrence rationale loses much of its force, and exclusion

cannot pay its way.” Davis, 564 U.S. at 238, 131 S.Ct. 2419 (internal citations and

quotation marks omitted); see also A.R.S. § 13-3925 (codifying good-faith

exception to the exclusionary rule).

“Real deterrent value is a ‘necessary condition for exclusion,’ but it is not

‘a sufficient’ one.” Davis, 564 U.S. at 237, 131 S.Ct. 2419 (quoting Hudson v.

Michigan, 547 U.S. 586, 596, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006)). “For

exclusion to be appropriate, the deterrence benefits of suppression must [also]

outweigh its heavy costs.” Id. (noting that exclusion's “bottom-line effect, in

many cases, is to suppress the truth and set the criminal loose in the community

without punishment”). Consequently, exclusion of evidence should be a “last

resort.” Id. (quoting Hudson, 547 U.S. at 591, 126 S.Ct. 2159). The state bears the

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burden of establishing that the good-faith exception applies. Havatone, 241 Ariz.

at 511 ¶ 19, 389 P.3d at 1256.

State v. Weakland, 246 Ariz. 67, 69 ¶¶ 6–7 (2019).

This Court cannot ignore Lt. Lockerby’s testimony that he chose to forgo the warrant

requirement and order the analysis of Defendant’s blood because he did not think Defendant had

a reasonable expectation of privacy in the blood. Lt. Lockerby did not testify that he sought legal

counsel on the issue, nor did he testify that he conferred with any other colleague to determine

the best path forward. Lt. Lockerby gave no indication that the State’s investigation had stalled

or that some exigency existed necessitating the speedy testing of Defendant’s blood without a

warrant. Instead, it seems that the State’s investigation was gaining steam through the use of

familial DNA, and that the State may have been able to secure a warrant for Defendant’s DNA

through further diligent investigation. Unfortunately, Lt. Lockerby chose a different path forward

and secured the analysis of Defendant’s blood without securing a warrant. Such action could be

fairly characterized as deliberate, but it was at least a reckless violation of Defendant’s

constitutional rights. The good-faith exception is therefore inapplicable under these

circumstances.

The Court finds it troubling that the State essentially asserts that it has the unfettered

ability to conduct subsequent searches of items held in custody for unrelated reasons.

The extraction of the DNA profile is suppressed. Additionally, the resulting DNA

analysis, and the subsequent DNA swabs collected pursuant to the warrant are also suppressed as

they are the direct result of the improper DNA extraction.

Based on the foregoing, Defendant’s motion is accordingly GRANTED.

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