# Pascua Yaqui Court of Appeals

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URL: https://www.frixlaw.com/law-library/documents/tribal%3Apascua_yaqui%3A62c3a4bd60e6f426

## Record

- **Collection:** Tribal code
- **Document type:** Tribal code

## Text

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

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 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

ear ors, ee CS om

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

4

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).

6

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.”

7

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).
9g

I.
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

10

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).

'© The reasonableness inquiry considers two other circumstances in which particularized suspicion is not

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).

11

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.

12

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

13

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
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WITNESS (ES)
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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

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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

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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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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

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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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/tribal%3Apascua_yaqui%3A62c3a4bd60e6f426. Public record. Not legal advice.