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No. CA-17-002

Pascua Yaqui Court of Appeals

Michael Madrid, Petitioner,

vs.

Hon. Melvin Stoof, Judge, Pascua Yaqui Tribal Court,

and

The Pascua Yaqui Office of the Prosecutor, Real Party in Interest.

For Plaintiff: Sara L. Dent, Pascua Yaqui Public Defender

For Real Party in Interest: Oscar J. Flores, Chief Prosecutor; Alicia Renee Robertson,

Deputy Prosecutor, Pascua Yaqui Office of the Prosecutor.

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Opinion & Order

I. Background

This case comes to the Appellate Court as a special action petition from a criminal

defendant, Michael Madrid, requesting review of a trial court order requiring the defendant to

submit to a buccal swab pursuant to 3 PYTC §2-2-390(A)(6).

Il. Appellate Court Jurisdiction in Special Actions

The special action petition requests that this Court preliminarily determine whether or not the

Appellate Court may exercise jurisdiction over a special action petition filed by a defendant in a

criminal proceeding.

This Court previously held special action petitions are permitted in criminal matters where

“no equally plain, speedy, and adequate remedy is available by appeal”. PYT v. Stoof, ex. rel.

Lopez, CA-18-001, PYT v. Stoof ex. rel. Flores, CA-18-002; Rule 1(a), Ariz. R. P. Spec. Act.

In reviewing the merits and substance of the special action petition in this case, this Court

declines to accept jurisdiction over this special action petition. Contrary to previous special

action petitions before this Court, here, the special action petition was filed by a criminal

defendant who has a constitutional right to appeal and an adequate statutory structure by which

to pursue an appeal after trial. See 3 PYTC §2-3-30 et. seg. The appellate process will allow

Petitioner to raise any and all legal arguments surrounding the constitutionality of 3 PYTC §2-2-

390(A)(6), the trial court’s application thereof, and any other issues preserved for appeal.

Petitioner does have a plain, speedy, and adequate remedy available by appeal and special action

review by the Appellate Court is not necessary at this time.

Il. Order

The special action petition is DENIED. This case is REMANDED to the trial court to

continue proceedings consistent with this Opinion.

—_

Justice Kendra A. Martinez

We CONCUR:

Hon. bee (ies

Hon. Rebecca Pl

IN THE PASCUA YAQUI COURT OF APPEALS

IN AND FOR THE PASCUA YAQUI INDIAN RESERVATION

PASCUA YAQUI TRIBE, APPELLATE CASE NO. CA-17-002

PASCUA YAQUI TRIBAL COURT NO.

CR-17-079 (REFILE OF CR-17-020)

Appellee,

VS.

)

MADRID, Michael, )

)

Appellant.

APPELLANT’S REPLY

TO THE TRIBE’S RESPONSE TO SUPPLEMENTAL BRIEFING ON

JURISDICTION

PASCUA YAQUI PUBLIC DEFENDER

Melissa L. Acosta

Chief Public Defender

PYT Bar #10185

4725 W. Calle Tetakusim, Building B

Tucson, AZ 85757

(520) 883-5013

Attorney for Appellant Michael Madrid

III.

VI.

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

STATE OF ARIZONA

Statutes

ARS. Special Actions, Rules Of Prot., Redicccassss<1isowsaaana 400 wawsenas vss ssaawsamenees si stanaea s eeaaia a: 5

I. INTRODUCTION

Appellant, Mr. Madrid hereby submits the following reply to the Tribe’s response to the

Appellant’s supplemental briefing regarding jurisdiction.

II. RELEVANT FACTS

On August 3, 2017 Mr. Madrid filed his Notice of Appeal in this case. (Record at 3; Record

at 1.) Parties submitted briefing pursuant to the August 22, 2017 order of this Court and the Pascua

Yaqui Code Rules on Appellate Procedure. Oral argument took place on May 10, 2018. On May 31,

2018 the Pascua Yaqui Court of Appeals issued its additional briefing order to address on the issue

ptesented above relating to jurisdiction. On July 2, 2018, undersigned counsel for Mr. Madrid

submitted their supplemental briefing addressing why this Court does have jurisdiction to hear his

interlocutory appeal requesting that this Court overturn the June 20, 2017 trial court order

permitting the taking of Mr. Madrid’s DNA.

On August 2, 2018, the Tribe submitted their responsive brief indicating that this Court has

jurisdiction to hear this matter. Nevertheless, the Tribe’s brief, contains a material misstatement of

fact — that is, the Tribe erroneously identifies itself as the party that is appealing on page 9 where it

requests the Court to “accept jurisdiction of the Tribe’s petition for special action.” Mr. Madrid

initiated this interlocutory appeal and agrees that this Court has jurisdiction to hear the matter.

In addition to agreeing that this Court has jurisdiction to hear this matter, the Tribe’s

supplemental briefing exceeds the scope of the Court’s Order. First, it re-litigates issues that have

already been briefed and argued before this Court at pages 10-12. The Tribe also inappropriately

asks that this Court make a blanket finding that the Tribe always has a right to file interlocutory

appeals. (“Real Party in Interest’s Supplemental Brief” at p. 13.) Mr. Madrid does not agree that this

Court has jurisdiction in this case to decide if the Tribe has an absolute right to file interlocutory

appeals as it is irrelevant to the matter at hand.

WI. ARGUMENT

Neither Party Disputes That This Court Does Have Jurisdiction to Hear Appellant’s

Interlocutory Appeal; and Any Additional Discussion Relating to Any Other Issues

Other than Jurisdiction Should Not Be Considered.

Both parties submitted briefs with law and argument to support interlocutory review in this

case. Both parties likewise submitted briefing on when an interlocutory appeal may be heard under

the standards established by the State of Arizona A.R.S. Special Actions, Rules of Proc., Rule 3 as

there is little guidance provided by the tribal code. After initial briefing and oral argument, this Court

requested supplemental briefing only on the issue of “whether [or not] the Pascua Yaqui Tribe

Court of Appeals has jurisdiction to hear an interlocutory appeal in this criminal prosecution of the

ruling by the Trial Court allowing a (buccal) cheek swab of the defendant to search for DNA

evidence.” If this Court were to embrace the standards set forth by the State of Arizona for Special

Actions, it would be contrary to A.R.S. Special Actions, Rules of Proc., Rule 3 to find that the Tribe

has an absolute right to interlocutory appeals.

IV. CONCLUSION

Based on the above, this Court should find that it does have jurisdiction to hear and make a

ruling in this case. Moreover, no additional argument made by the Tribe in its responsive

supplemental brief should be considered.

RESPECTFULLY SUBMITTED: August 17, 2018.

PASCUA YAQUI PUBLIC DEFENDER

Melissa L. Acosta

Chief Public Defender

Pascua Yaqui Public Defender

4725 W. Calle Tetakusim, Building B

Tucson, AZ 85757

(520) 883-5013

Attorney for Appellant Michael Madrid

CERTIFICATE OF COMPLIANCE

This brief complies with the provisions set forth in 3 PYTC Part II, Chapter 2-3.

PASCUA YAQUI PUBLIC DEFENDER

Co A

Melissa L. Acosta

Chief Public Defender

Pascua Yaqui Public Defender

4725 W. Calle Tetakusim, Building B

Tucson, AZ 85757

(520) 883-5013

Attorney for Appellant Michael Madrid

CERTIFICATE OF SERVICE

On August 17, 2018 the original and 3 copies of the Supplemental Appellant Brief were filed, and

conforming copies were sent to the following:

Pascua Yaqui Office of the Prosecutor

Chief Prosecutor

Oscar Flores

7777 S. Camino Huivisim, Bldg. A

Tucson, AZ 85757

Michael Madrid, Appellant

PASCUA YAQUI PUBLIC DEFENDER

i 7 A

Melissa L. Acosta

Chief Public Defender

Pascua Yaqui Public Defender

4725 W. Calle Tetakusim, Building B

Tucson, AZ 85757

(520) 883-5013

Attorney for Appellant Michael Madrid

pod

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PASCUA YAQUI TRIBE

OFFICE OF THE PROSECUTOR

7777 S. Camino Huivisim

Bldg. A, 2" Floor

Tucson, Arizona 85757

(520) 879-6251

Alicia Renee Robertson

Deputy Prosecutor

IN THE PASCUA YAQUI COURT OF APPEALS

IN AND FOR THE PASCUA YAQUI INDIAN RESERVATION, ARIZONA

MADRID, MICHAEL, APPEALS CASE NO: CA-17-002

TRIBAL COURT NO: CR-17-079

Appellant.

Vs. REAL PARTY IN INTEREST’S

SUPPLEMENTAL BRIEF

HONORABLE MELVIN STOOF

JUDGE, PASCUA YAQUI TRIBAL COURT

Appellee,

PASCUA YAQUI TRIBE

OFFICE OF THE PROSECUTOR!

Real Party in Interest

COMES NOW, the Pascua Yaqui Tribe by and through the Pascua Yaqui Chief

Prosecutor, OSCAR J. FLORES, and his Deputy, ALICIA RENEE ROBERTSON, and hereby

respectfully submits the following Real Party in Interest’s Supplemental Brief. The Tribe

1 In Special Action pleadings the complaint names the body, officer, or person against whom relief is sought.

However, “[i]f any public body, tribunal, or officer is named as a defendant, the real party or parties in interest shall

be joined as defendants.” Ariz.R.Spec.Act., Rule 2(a)(1). In such circumstances, the practice is to direct the writ in}

form to the court, but in fact leave its handling to the parties. See Ariz.R.Spec.Act., Rule 2, State Bar Committee

Notes, section (a).

respectfully requests this Court take jurisdiction of this issue and to deny relief to Appellant by

affirming the prior ruling of the Tribal Court Judge.

RESPECTFULLY submitted this 2nd day of August, 2018.

Alicia Renee Robertso

Deputy Prosecutor

Original filed with the

Clerk of the Pascua Yaqui Court of Appeals

On:

Copy of the foregoing provided to:

Hon. Melvin Stoof

Pascua Yaqui Tribal Court

Melissa Acosta

Pascua Yaqui Office of the Public Defender

Attorney for Appellant Michael Madrid

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

AUTHORITY PAGE

TRIBAL CONSTITUTION

Art. I, § 1(c), Pascua Yaqui Const 6

TRIBAL CODE:

1 PYTC § 2-30(H) 7

3 PYTC § 2-3-30 6

3 PYTC § 2-3-40 7

3 PYTC § 2-3-90 (G),(F) 6

3 PYTC § 2-2-390 (A)(6) 9,10

3 PYT R. Crim. P. Rule 39(A)(6) 10

Rule 1(a), Ariz. R. P. Spec. Act 8,9

Rule 3, Ariz. R. P. Spec. Act 8

FEDERAL REGULATION:

HIPPA, Section 164.512 10

CASE LAW:

Fragoso v. Fell, 210 Ariz. 427, 111 P.3d 1027 (App. 2005) 8

Global Cash Access, Inc. and Central Credit, LLC v. Gaming 6

Enterprise Division of the Pascua Yaqui Tribe, CA-14-0004

(PYT Ct. App. June 20, 2014)

Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt Cty., 542 U.S.177, 11

124 S.Ct. 2451, 159 L.Ed.2d 292

Illinois v. McArthur, 531 U.S. 326, 330, 121 S.Ct. 946, 11

148 L.Ed.2d 838 (2001)

In re Pascua Yaqui Tribe, CA-13-005 (PYT Ct. App. Jan. 28, 2014) 7

In the Matter of Alvarez, CA-17-008 (P.Y.T. Ct. App. June 19, 2018) 6

McGuire v. Lee, 239 Ariz. 384, 372 P.3d 328 (App. 2016) 8

Maryland vy. King, 133 S. Ct. 1958, 186 L. Ed. 2d 1 (2013) 10, 11

Pascua Yaqui Tribe v. Coleman, CA-15-0003 7

(PYT Ct. App. Nov. 17, 2015)

Pascua Yaqui Tribe v. Miranda, CA-08-015 7

(PYT Ct. App. Mar. 29, 2009)

Pascua Yaqui Tribe v. Molina, CA-14-003 7

(PYT Ct. App. June 6, 2014)

Pascua Yaqui Tribe v. Montana, CA-12-001 (PYT Ct. App. July 23, 2013) 6, 7, 8,9

Samson v. California, 547 U.S. 843, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006) 1]

Snyder v. Donato, 211 Ariz. 117, 118 P.3d 632 (Ct. App. 2005) 8

State ex rel. McDougall v Tvedt, 163 Ariz. 281, 787 P.2d 1077 (App. 1989) 8-9

State v. Parker, 139 Wash. 2d 486, 987 P.2d 73 (Wash. 1999) 11

State ex rel. Romley v. Martin, 203 Ariz. 46, 49 P.3d 1142 (Ct. App. 2002) 7-8

Pascua Yaqui Tribe v. Valenzuela, CA-08-013 (PYT Ct. App 2008) 9,10, 12

Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 652, 115 S.Ct. 2386, 10

132 L.Ed.2d 564 (1995)

Winston v. Lee, 470 U.S. 753, 105 S. Ct. 1611, 84 L. Ed. 2d 662 (1985) 12

Wyoming v. Houghton, 526 U.S. 295, 119 S.Ct. 1297, 143 L.Ed.2d, 11

408. P. 1970 (1999)

PROCEDURAL POSTURE AND RELEVANT FACTS:

The Tribe hereby incorporates the facts as written in its Real Party in Interest’s Response

Brief previously submitted on October 23, 2017. The Tribe hereby submits this Supplemental

Brief pursuant to this Court’s order issued May 31, 2018.7

STATEMENT OF THE ISSUES:

1. DOES THE PASCUA YAQUI COURT OF APPEALS HAVE JURISDICTION TO

HEAR AN INTERLOCUTORY APPEAL IN THIS CRIMINAL PROSECUTION

OF THE RULING BY THE TRIBAL COURT ALLOWING A (BUCCAL) CHEEK|

SWAB OF THE DEFENDANT TO SEARCH FOR DNA EVIDENCE?

LAW AND ARGUMENT:

THE PASCUA YAQUI TRIBE COURT OF APPEALS HAS JURISDICTION OVER

INTERLOCUTORY APPEALS AND SPECIAL ACTIONS.

The Pascua Yaqui Tribal Rules of Appellate Procedure, see generally 3 PYTC § 2-3-30

et seq., grant parties the right to appeal in most, but not all, circumstances. For instance, the}

Tribe does not have the right to appeal a judgment acquitting a defendant in a criminal case. 3

PYTC § 2-3-90(G); Art. I, § 1(c), Pascua Yaqui Const.; Pascua Yaqui Tribe v. Montana, CA-12-

001 (PYT Ct. App. July 23, 2013).? Appellant, in his brief, misinterprets this provision to mean

that the Tribe never has the right to appeal. Parties in civil cases are prohibited from filing any

sort of interlocutory appeal. 3 PYTC § 2-3-90(F); Global Cash Access, Inc. and Central Credit,

LLC v. Gaming Enterprise Division of the Pascua Yaqui Tribe, CA-14-0004 (PYT Ct. App. June

20, 2014). However, nothing in the Tribal code prohibits the Tribe from filing an interlocutory

The Tribe also submits the Motion Hearing Re: DNA. Attached Tribe’s Exhibit 1.

* The Tribe may, however, appeal a dismissal, as suggested by this Court accepting jurisdiction and giving its recent

ruling in Jn the Matter of Alvarez, CA-17-008 (P.Y.T. Ct. App. June 19, 2018).

appeal or “extraordinary writ” in criminal cases.* In cases where a defendant lacks an equally

plain remedy on appeal after the conclusion of the case, defendants also have the ability to file an

interlocutory appeal or “extraordinary writ” in criminal cases.

The Pascua Yaqui Tribal Code does not define what “interlocutory appeals,” “special

actions,” or “extraordinary writs” are. See generally 3 PYTC § 2-3-40. However, pursuant to 1

PYTC § 2-30(H),° whenever the meaning of a term used in the code is unclear, either “on its face

or in the context of the Code, such term shall have the meaning given to it by the laws of the

State of Arizona, unless such meaning would undermine the underlying principles and purposes

of this Code.” See also Pascua Yaqui Tribe v. Miranda, CA-08-015 (PYT Ct. App. Mar. 29]

2009), at p.22. As a result, the Court of Appeals has turned to Arizona law for guidance as to

how to proceed with interlocutory appeals and special actions. In Montana, CA-12-001, p. 1, the

Court of Appeals was asked to determine whether the trial court erred by ordering that a minor

victim be made available for an evidentiary hearing so that she could be questioned regarding

allegations that she had been coached. The Court determined that “[a]lthough the Pascua Yaqui

Rules of Appellate Procedure are silent on special actions,” the matter fell squarely “within the

Appellate Court’s jurisdiction.” Jd. at 2.

Noting that prosecutors lack a right to appeal criminal convictions, the Court explained

that “special actions emerged in the common law as specific remedial writs in the face of

erroneous, excessive, arbitrary, and or capricious government actions.” Jd. The Court then

turned to Arizona law. Arizona permits special action review only where no “equally plain,

“Indeed, the Pascua Yaqui Court of Appeals has reviewed a number of interlocutory appeals filed by the Tribe. In

its opinions, the Court has alternately referred to proceedings as “special actions”, Montana, CA-12-001, p.1,

Pascua Yaqui Tribe v. Coleman, CA-15-0003 (PYT Ct. App. Nov. 17, 2015), and “interlocutory appeals,” Pascua

Yaqui Tribe v. Molina, CA-14-003 (PYT Ct. App. June 6, 2014), In re Pascua Yaqui Tribe, CA-13-005 (PYT Ct.

App. Jan. 28, 2014).

5 1 PYTC § 2-30 has two subsection H’s, the first of which indicated that criminal “ordinances shall be construed

according to the fair import of their terms, with a view to affect their object and to promote justice.”

speedy, and adequate remedy is available by appeal.” Rule 1(a), Ariz. R. P. Spec. Act.; State eal

rel. Romley v. Martin, 203 Ariz. 46, 47, 49 P.3d 1142, 1143 (Ct. App. 2002); Fragoso v. Fell,

210 Ariz. 427, 429, 111 P.3d 1027, 1029 (App. 2005). Moreover, relief may only be granted inl

situations where the trial court: 1) fails “to exercise discretion which [it] has a duty to exercise,”}

or to perform a lawful duty “‘as to which [it] has no discretion”; 2) proceeds or threatens “to

proceed without or in excess of jurisdiction or legal authority”; or, 3) makes a determination that

is “arbitrary and capricious® or an abuse of discretion.” ’ Rule 3, Ariz. R. P. Spec. Act.; see also

Montana, CA-12-001, p. 2. Acceptance of special action jurisdiction is discretionary. Snyder v.

Donato, 211 Ariz. 117, 119, 118 P.3d 632, 634 (Ct. App. 2005); Romley, 203 Ariz. at 47, 49 P.3d

at 1143 ; c.f 3 PYTC § 2-3-210(D)(2) (suggesting that acceptance of special action jurisdiction

in a particular case is discretionary, and not a decision that can serve as the basis of a motion to

reconsider). “Special action jurisdiction is appropriate in matters of statewide importance, issues

of first impression, cases involving purely legal questions, or issues that are likely to arise

again.” Romley, 203 Ariz. at 47, 49 P.3d at 1143 (appropriate forum for reviewing whether State

could impeach the defendant with certain prior convictions at trial was via special action);

Synder, 211 Ariz. at 119, 118 P.3d at 634 (special action regarding whether complex case

designation was appropriate); McGuire v. Lee, 239 Ariz. 384, 386, 372 P.3d 328, 330 (App.

2016), (special action regarding whether juvenile could be tried as an adult); State ex rel.

° A court’s decision is considered capricious and arbitrary when the decision has no “reasonable basis in relevant

facts.” Carlson v. Landon, 187 F.2d 991, 1003 (9" Cir 1951).

7“An ‘abuse of discretion’ is discretion manifestly unreasonable, or exercised on untenable grounds, or for

untenable reasons. A trial court abuses its discretion if it makes an error of law in reaching its decision or makes a

discretionary finding of fact that is not justified by reason.” State v. Fell, 242 Ariz. 134, 136, 393 P.3d 475, 477 (Ct.

App. 2017), review denied (Nov. 16, 2017) (internal citations and quotations omitted); see also McGuire v. Lee, 239

Ariz. 384, 386, 372 P.3d 328, 330 (App. 2016), rev. denied Dec. 13, 2016 “An abuse of discretion includes an error

in interpreting or applying the law.”)

McDougall v Tvedt, 163 Ariz. 281, 284, 787 P.2d 1077, 1080 (App. 1989) (jurisdiction over

State’s special action denied because it was filed after the defendant’s conviction became final).

In Montana, the Pascua Yaqui Court of Appeals made no detailed references to Rule 1(a),

Ariz. R. P. Spec. Act, or related state case law, the issue that the Court was tasked to review met

all of the requirements of the rule and related precedent. The Tribe had no plain, adequate or

speedy remedy by way of appeal because it had no right to appeal an acquittal. The question

involved was a purely legal one, and involved an issue that — at the time — was a question of

first impression. Finally, it was a question that was likely to arise again unless the Court of

Appeals had the opportunity to provide future litigants with guidance. It was for these reasons

that this Court accepted jurisdiction.

The issue raised in this case are similarly appropriate for interlocutory review. The

central issue involved here is whether the trial court’s ruling — which held that Appellant must

submit to a buccal swab — was arbitrary, capricious, or an abuse of discretion. This is a purely

legal issue that will require this Court to interpret Pascua Yaqui Rules of Evidence; specifically,

PYTC § 2-2-390 (A)(6). It is an issue that is likely to arise again in one form or another in future

criminal cases. Moreover, based on the Tribe’s research, it is an issue of first impression for this

Court.’ Furthermore, once Defendant’s buccal swabs have been taken and analyzed, Defendant

would lack any remedy upon conclusion of the case to undo the disclosure of his genetic

information. See Wells vy. Fell, 231 Ariz. 525, 526, 297 P.3d 931, 932 (Ariz. App. 2013

(accepting jurisdiction in a special action brought by a Defendant who had been ordered by the

trial court to disclose materials to the prosecution). For these reasons, this Court should accept

jurisdiction of the Tribe’s petition for special action.

* The Tribe was able to locate only one case where a somewhat similar issue was raised. See Pascua Yaqui Tribe v.

Valenzuela, CA-08-013 (PYT Ct. App 2008).

BOTH TRIBAL AND ARIZONA LAW HISTORICALLY ALLOW FOR THE

REASONABLE TAKING OF SAMPLES FOR PHYSICAL CHARACTERISTICS.

Under Pascua Yaqui Tribal Law, 3 PYTC § 2-2-390 (A)(6) specifies that, upon written

request of the prosecutor, a defendant shall “[p]ermit the taking of samples of his or her hair,

blood, saliva, urine or other specified materials which involve no unreasonable intrusions of his

or her body.” The applicable Arizona Revised Statute is similar to the Tribe’s statute for

physical characteristics. See Ariz. Rev. Stat. Ann. § 13-3905.

The Pascua Yaqui Court of Appeals specifically recognized that the former 3 PYT R.

Crim. P. Rule 39(A)(6) (now 3 PYTC § 2-2-390 (A)(6)) as well as HIPPA, Section 164.512

permitted the taking of a blood sample from a defendant to test for the presence of a disease and

that Rule 39 was quite clear. Valenzuela, CA-08-013 at p. 2.

In Maryland v. King, the United States Supreme Court held that a buccal swab of the

inside of one’s cheek for the purposes of obtaining DNA was, in fact, a search under the Fourth|

Amendment. Maryland v. King, 133 S. Ct. 1958, 1963, 186 L. Ed. 2d 1 (2013). “[T]he fact that

the intrusion is negligible is of central relevance to determining whether the search is reasonable

and thus ‘the ultimate measure of the constitutionality of a governmental search,’ Maryland vy.

King, 133 S. Ct. at 1963, 186 L. Ed. 2d 1, citing Vernonia School Dist. 47J v. Acton, 515 U.S!

646, 652, 115 S.Ct. 2386, 132 L.Ed.2d 564 (Wash. 1995). The Court went on to highlight that

the need for a warrant was “greatly diminished” when the arrestee was already in justified police

custody supported by probable cause. Maryland v. King, 133 S. Ct. 1958, 1963, 186 L. Ed. 2d 1

(2013) As such, the search must be analyzed as to “reasonableness, not individualized

suspicion.” Jd. quoting Samson v. California, 547 U.S. 843, 855, n. 4, 126 S.Ct. 2193, 165

L.Ed.2d 250 (2006). The Court went on to indicate that the government does in fact have an

interest in identifying the correctly accused person. Maryland y. King, 133 S. Ct. at 1963-64

186 L. Ed. 2d, citing Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt Cty., 542 U.S. 177]

191, 124 S.Ct. 2451, 159 L.Ed.2d 292, (indicating that the government has interest in identifying!

“who has been arrested and who is being tried”).

666

Reasonableness is determined by balancing “‘the promotion of legitimate governmental

interests’ against ‘the degree to which [the search] intrudes upon an individual's privacy.’ ” King]

133 S. Ct. at 1963, 186 L. Ed. 2d 1, quoting Wyoming v. Houghton, 526 U.S. 295, 300, 119 S.Ct]

1297, 143 L.Ed.2d 408. P. 1970(1999). ° In this balance, “great weight is given to both the

significant government interest at stake in the identification of arrestees and DNA identification's

unmatched potential to serve that interest.” King, 133 S. Ct. at 1963, 186 L. Ed. 2d 1. The King}

Court determined that the government interest does not completely outweigh an individual’s

right to privacy. When comparing the substantial government interest and the effectiveness of

DNA identification, to the actual intrusion, the intrusion of a cheek swab, according to the Court]

was minimal. King, 133 S. Ct. at 1964-65, 186 L. Ed. 2d 1.'°

Weighing the Appellant’s right to privacy in this case against the Tribe’s legitimated

interests, it is clear that the Tribe’s interest in identification outweighs any privacy concerns. In

addition, when analyzing the magnitude of the intrusion as the King court did, swabbing!

Appellant’s cheek is, at most, minimal. The case before the Court can be distinguished from

Winston as the Tribe is not requesting that Defendant undergo surgery. Again, the Tribe is

requesting the Defendant’s cheek be swabbed with a sterile Q-tip to collect a small sample of

° This case was not followed on state law grounds in Washington, State v. Parker, 139 Wash. 2d 486, 987 P.2d 73

(Wash. 1999).

categorically required: “diminished expectations of privacy [and a] minimal intrusion.” Maryland y. King, 133 S.

Ct. at 1964-65, 186 L. Ed. 2d 1, citing Illinois v. McArthur, 531 U.S. 326, 330, 121 S.Ct. 946, 148 L.Ed.2d 838

(2001).

buccal cells. This is a minimal intrusion, imposes no health or safety risks, and is not nearly a9

severe as the request made in Winston. As such, because the intrusion is minimal and

reasonable, and controlling Tribal law is constitutional, the Tribe respectfully requests this Court

uphold the trial Court’s ruling.

The Tribe also requests this Court incorporate the Points and Authorities cited to and

argued in its Real Party in Interest’s Response Brief previously submitted on October 23, 2017.

Appellant argues that DNA can be used for paternity and various other tests. However, as

discussed above, both Arizona courts, and this Court in Valenzuela found a swab of this nature

has been to be minimally intrusive, reasonable, and not a violation of a defendant’s rights.

Additionally, while Appellant concedes his presence at the crime scene, he does not admit to the

damage that was caused to the headlight. In addition, he may at the time of trial change his

mind. Regardless, the burden of proving each and every element of every offense charged

belongs to the Tribe. In this case, that includes the intent of the Defendant to commit a theft or

other felony once he entered the incident location. As a result, where the Defendant’s blood was

found inside the home is important, because it could lead reasonable jurors to infer that the

location it was left suggested the requisite intent the Tribe is required to prove. As such, the

Tribe should be allowed to swab Defendant’s cheek and present the results in its case in chief]

Both Tribal Law and Arizona law allow for the reasonable taking of samples for physical

characteristics. Accordingly, the Tribe respectfully requests that this Court uphold the trial

court’s ruling.

CONCLUSION

For the foregoing reasons, the Tribe acknowledges that the Pascua Yaqui Tribe Court of

Appeals has jurisdiction over Appellant’s interlocutory appeal as well as special actions filed by|

the Tribe. In addition, the trial court’s order is in compliance with Tribal, State and Federal law,

and the Tribe respectfully requests the Court of Appeals to uphold the trial court’s decision to

require that the Defendant submit to a buccal swab.

RESPECTFULLY submitted this 2nd day of August, 2018.

MP a 14

VOscar’J. Lonel yy : ici

ief Prosecutor Deputy Prosecutor

TRIBE’S EXHIBIT 1

IN THE PASCUA YAQUI TRIBAL COURT

CITY OF TUCSON, COUNTY OF PIMA, STATE OF ARIZONA

PASCUA YAQUI TRIBE, ) NO. CRI17-079

)

Plaintiff, )

)

vs. )

)

MICHAEL MADRID, )

)

Defendant. ) Tucson, Arizona

)

June 20, 2017

BEFORE: THE HONORABLE MELVIN STOOF, JUDGE OF THE

PASCUA YAQUI TRIBAL COURT

APPEARANCES: ALICIA RENEE ROBERTSON, ESQ.

appearing for Plaintiff

SARA DENT, ESQ.

appearing for Defendant

RE: MOTION HEARING RE: DNA

Christine McGarvey

Legal Transcription Services Plus

Oo on n wo

INDEX

WITNESS (ES)

N/A

THE COURT: Good morning. Please me

seated. This is CR17-079, Pascua Yaqui Tribe versus

Michael Raymond Madrid. And this matter was reset on

Motion for

Evidence of Physical Characteristics by

Tribe. Sara Dent is here, along with Alicia Renee

Robertson. Is your --

MISS DENT: I would be requesting to waive

his presence, Your Honor. The last time I spoke to

him, he had broken his ankle.

THE COURT: Okay. So you’re waiving

presence?

MISS DENT: Yes.

THE COURT: Okay. Waiver of presence of

Michael Madrid. And this is your Motion, Miss

Robertson. What is it you’re asking for?

MISS ROBERTSON: Uhm, well, Your Honor, the

Tribe was asking for, uhm, a DNA sample to be taken

CoC won nd uf WS NH =

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from, uh, the Defendant. As in our Motion that was

previously filed, uhm, we cited two, uh, the Pascua

Yaqui previous, uh, Criminal Rule 39(A)(6), which is

now, now 2-239086, uh, permitting the taking of a blood

sample from the Defendant to t4est for their presence

of disease. We cited, uh, PYT v. Valencia, wherein

fact we’re actually testing to, uh, for identifiers and

that they do not fall under the auspices of the Fourth

Amendment, uhm, and, and in that Motion, we cited, uh,

State v. Wedding, which is, uhm, 171 Ariz. 399. Uhm,

as we previously argued, Your Honor, uhm, we, we feel

that this is an element of the crime and we do have to

prove, uhm, that it was the Defendant and it was his

blood that was on that taillight, uhm, and it seems as

though the case law is in line with that. Uhm,

Schmerber v. California indicates that taking the, uh,

blood tests are not an snveasonable scarch and seizure

under the Fourth Amendment, and, uhm, Maryland v. King,

that a buccal swab test for DNA was not unreasonable,

uh, an unreasonable search of the defendant, but rather

eo won nun -F- WHS NH =

wR NH ee ee ee —

PRRRRSERBRSFUECRVWIARZREARES

a reasonable intrusion that would, that outweighed the

defendant’s privacy. And, Your Honor, uh, the Tribe

feels that a buccal swab of the inside of the

Defendant’s mouth is not a, uhm, large intrusion, it’s

minimal, and therefore, we’re asking that his DNA be

taken.

MISS DENT: Uhm, Your Honor, the

Constitutional standard is not whether it’s a minimal

intrusion, it’s whether, number one, the search is

reasonable; and number two, that there’s nexus to an

actually specified crime that’s, uhm, alleged. Uh, we

would disagree with the (inaudible) to how the case law

has been interpreted. All 1f the case law involving

taking of DNA are felony cases. And the, in its

motion, the Tribe misstates the law by saying that

collection of DNA doesn’t constitute a search under the

Fourth Amendment. Uhm, and in fact, it does, even a

buccal cheek swab is a search requiring their warrant

or an exception, uhm, such as the two-prong test of

whether it is reasonable and whether it is connected.

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PRNRRRPSRNRSFSEPSZVIARARARES

Uhm, and under Maryland v. King, which is a 2013 case

from the Supreme Court, uhm, it could be taken even in,

as part of a booking procedure if it’s just a common

practice. Uhm, Tribal law and Constitutional law do

allow for the taking of DNA and under the cited Tribal

t--, P--, Pascua Yaqui dash--, Section 2-2-39(A) (6), it

does allow for a Prosecutor to request that, uhm, but

there are limitations that are placed on those requests

as I stated earlier, that the request has to be

reasonable, and it has to be, uhm, connected to a

particular crime. Uhm, there is also case law saying

that there also must be a showing prior to the granting

of that request, that the government has to show that

there is usable DNA to compare it to, uhm, and that can

be found in U.S. v. Castillo, which is out of the

Southern District of Florida from 2016, uhm, before the

request can be granted. Uh, Mr. Madrid argues that it

is not reasonable because this is a deminimis

misdemeanor criminal damage charge that is a property

crime and is not a violent crime whatsoever. Identify

me NH NH NW WH No SS = — — ie

PNaRKRSKRRSSGCRSVISAHKHEPEBHRES

is not in question. It’s a broken taillight, not a

murder or a rape charge. And the blood on _ the

taillight at best would show presence and that he had

contact with the taillight, not that he actually broke

Lt. There are three eyewitnesses listed by the Tribe

that will able to expound and actually identify what

happened to the taillight. Uh, all the case law

examples in these lines of DNA collection, uhm, cases

have things in common, such as the defendant committed

felony offenses of rape or murder or firearms or drug

distribution, things like that, where, uh, either

identify is in question or because of the seriousness

of the offense, they want to have their DNA on record.

Uhm, some of these people were on probation or parole

where they had an already limited expectation of the

privacy, uhm, of that person, and for searches, uhm, or

their DNA was taken as part of the booking process, or

perhaps the identify was in question of who actually

committed the crime. In each of these cases, there was

an individualized suspicion that was established and a

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.