                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                      STATE OF ARIZONA, Appellant,

                                        v.

              TIMOTHY ALEXANDER MCNEILL, Appellee.

                             No. 1 CA-CR 18-0911
                               FILED 10-1-2019


           Appeal from the Superior Court in Maricopa County
                        No. CR2017-002133-001
               The Honorable Warren J. Granville, Judge

                                  AFFIRMED


                                   COUNSEL


David G. Derickson, PC, Phoenix
By David G. Derickson
Counsel for Appellee

Maricopa County Attorney’s Office, Phoenix
By Amanda M. Parker
Counsel for Appellant
Pacific Legal Foundation, Sacramento
By Timothy Sandefur
Counsel for Amicus Curiae Goldwater Institute

American Civil Liberties Union of Arizona, Phoenix
By Kathleen E. Brody
Counsel for Amicus Curiae Arizona Attorneys for Criminal Justice


                      MEMORANDUM DECISION

Judge David D. Weinzweig delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Diane M. Johnsen joined.


W E I N Z W E I G, Judge:

¶1           The State of Arizona appeals the superior court’s order
granting Timothy Alexander McNeill’s motion to suppress the written
contents of two notebooks discovered during an inventory search of
McNeill’s automobile. We affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2             Scottsdale Police Officers Marienau and Pedersen observed
McNeill make an improper left turn and then conducted a traffic stop of his
vehicle. McNeill was arrested for driving on a suspended license. At the
time, Arizona law required the officers to remove and impound McNeill’s
vehicle under A.R.S. § 28-3511(A)(1)(a). 1 Before having the vehicle towed,
however, Officer Marienau performed an inventory search. Among other
things, his search yielded one black notebook in a backpack found in the
trunk and one multicolored notebook found in the driver’s side door panel.
As the State explains the sequence of events, Officer Marienau opened the
notebooks “to determine if there were dangerous or valuable items inside”
and found they “contained myriad personal identifying information: bank
account information, credit card numbers, names, dates of birth, address,
social security numbers, email addresses, and passwords.”


1 A.R.S. § 28-3511(A)(1)(a) was revised and no longer requires police officers

to immobilize or impound vehicles unless they are driven by persons
whose driving privileges are “revoked.” See Laws 2018, Ch. 113 § 13 (eff.
Jan. 1, 2019). The statute previously mandated impoundment when a
person’s license was “suspended or revoked.”


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                            STATE v. MCNEILL
                            Decision of the Court

¶3            McNeill was indicted on one felony count of Aggravated
Taking Identity of Another. He moved the superior court to suppress the
written contents of the two notebooks under the exclusionary rule, arguing
that Officer Marienau exceeded the scope of a valid inventory search and
violated his Fourth Amendment rights by reading the notebooks.

¶4            Neither party requested an evidentiary hearing on the motion
to suppress, but the superior court held oral argument. The argument
transcript indicates the parties stipulated that the police officers (1) arrested
McNeill and initiated an inventory search of his vehicle without probable
cause of identity theft, (2) found the notebooks during that valid inventory
search, and (3) “read the contents” of the notebooks during the inventory
search.

¶5            At oral argument before the superior court, the State claimed
the officers were entitled to open and read “every page” of the notebooks
because “the words themselves [were] in plain view” and the officers “are
legally allowed to read something once they are in a place to see it.”
McNeill countered that officers could have satisfied the purposes of an
inventory search “just by shaking [the notebooks] out,” and asserted “there
really wasn’t any requirement or any need or necessity” to explore the
notebooks.

¶6              The court granted McNeill’s motion from the bench,
suppressing all contents of the notebooks. Although the court found that
the officers performed “a proper vehicular stop” and had “proper grounds
for seizing the vehicle” and conducting an inventory search, it also found
the search exceeded the bounds and purpose of a permissible inventory
search. The court explained that “the purpose of an inventory” is to “make
sure that there’s no dangerous [or expensive] items going into police
custody.” The court held the policy “did not require reading the contents
of . . . the [notebooks].” The court also found that while the officers acted
in “good faith,” their “good faith belief . . . did not justify reading the
content of the [notebooks].” In its subsequent minute entry, the court again
held that “the officer’s action did not justify a reading of the contents of the
[notebooks].”

¶7            The State moved the superior court for reconsideration,
recharacterizing the evidence in the process. For the first time, the State
argued that Officer Marienau observed “‘giant’ colorful handwriting on top
of one of the notebook’s pages that read ‘CREDIT CARDS,’ followed by a
handwritten list of credit card numbers, expiration dates, and CVV codes.”
The motion was denied.


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                            STATE v. MCNEILL
                            Decision of the Court

¶8            The State timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 12-
120.21(A)(1), 13-4031, 13-4032(6), and 13-4033(A)(1). 2

                               DISCUSSION

¶9            As a threshold matter, we emphasize the absence of any
meaningful record on appeal. The State designated the record on appeal to
include “the oral argument” transcript, “all documents filed in the superior
court,” and “any documents entered into evidence on December 7, 2018.”
From our review, however, the record is devoid of any testimony or other
evidence—no notebooks, police reports or photographs are in the record.
All we have are the filings in connection with McNeill’s motion to suppress
and a transcript of the oral argument. No evidence was offered or admitted
at oral argument, nor was evidence attached to the motion, the response or
the reply.

¶10           The only issue on appeal is whether the police officers
exceeded the scope of a valid inventory search by reading the contents of
the two notebooks. A superior court’s ruling on a motion to suppress
evidence will not be set aside absent a clear abuse of discretion, State v.
Sharp, 193 Ariz. 414, 419, ¶ 12 (1999), and is viewed in the light most
favorable to upholding the court’s ruling, State v. Estrada, 209 Ariz. 287, 288,
¶ 2 (App. 2004). We defer to the superior court’s factual determinations
unless they are clearly erroneous, but the ultimate question of whether
suppression of evidence is warranted is a conclusion of law we review de
novo. State v. Valle, 196 Ariz. 324, 326, ¶ 6 (App. 2000). “We restrict our
view to consideration of the facts the [superior] court heard at the
suppression hearing.” State v. Blackmore, 186 Ariz. 630, 631 (1996).

I.     Fourth Amendment

¶11           The Fourth Amendment to the United States Constitution
protects “[t]he right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures . . . .” U.S.
Const. amend. IV; State v. Wilson, 237 Ariz. 296, 298, ¶ 7 (2015). The
“ultimate touchstone” of Fourth Amendment protection is
“reasonableness,” Brigham City v. Stuart, 547 U.S. 398, 403 (2006), which


2The Goldwater Institute and Arizona Attorneys for Criminal Justice filed
amicus curiae briefs in this matter on the Private Affairs Clause of the
Arizona Constitution. Ariz. Const. art. II § 8. We need not and do not reach
that issue.


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                            STATE v. MCNEILL
                            Decision of the Court

“generally requires the obtaining of a judicial warrant,” Vernonia Sch. Dist.
v. Acton, 515 U.S. 646, 653 (1995). A warrantless search is not permissible
unless it falls under an exception to the warrant requirement. Riley v.
California, 573 U.S. 373, 382 (2014).

¶12            This case involves a warrantless search. The State thus bore
the burden of “proving by a preponderance of the evidence the lawfulness
in all respects of the acquisition of all evidence that the State will use at
trial.” Ariz. R. Crim. P. 16.2(b)(1); Rodriguez v. Arellano, 194 Ariz. 211, 215,
¶ 12 (App. 1999). The State presses two exceptions to the warrant
requirement on appeal, the inventory search and the plain view doctrine.

              A.     Inventory Search

¶13            An inventory search is a “well-defined” exception to the
warrant requirement. Illinois v. Lafayette, 462 U.S. 640, 643 (1983). It occurs
when, like here, police inventory a vehicle’s contents before it is removed
and impounded. South Dakota v. Opperman, 428 U.S. 364, 369 (1976). A valid
inventory search aims to protect law enforcement from danger, safeguard
an arrested person’s property from theft or vandalism, and insulate law
enforcement from claims of theft or vandalism to seized property. Id.
Warrantless inventory searches of an automobile are thus permissible if
officers (1) have lawful custody or possession of the vehicle, and (2) act in
good faith and do not use the inventory procedure as a subterfuge for a
warrantless search. In re One Econoline, 109 Ariz. 433, 435 (1973).

¶14           The first element was undisputed. Police had lawful
possession of the vehicle under A.R.S. § 28-3511(A)(1)(a), and Officer
Marienau located the notebooks during a valid inventory search of the
vehicle. State v. Organ, 225 Ariz. 43, 48, ¶ 22 (App. 2010). But the court
ultimately found that locating the notebooks “did not justify a reading of
the[ir] contents,” and we cannot hold the superior court abused its
discretion on this sparse record. While it was not unreasonable for Officer
Marienau to open the notebooks to ensure that no weapons, contraband or
other valuables were tucked between its pages, see Lafayette, 462 U.S. at 647
(“The reasonableness of any particular governmental activity does not
necessarily or invariably turn on the existence of ‘less intrusive’ means.”),
he need not have read through the notebooks to achieve the purposes of an
inventory search.

              B.     Plain View Doctrine

¶15         The State also offers the plain view doctrine as an exception
to the warrant requirement in conjunction with the inventory search


                                       5
                            STATE v. MCNEILL
                            Decision of the Court

exception. No warrant was required, the State argues, because the contents
of the notebooks were in plain view as Officer Marienau performed a valid
inventory search.

¶16            Under the plain view doctrine, “if police are lawfully in a
position from which they can view an object, if its incriminating character
is immediately apparent, and if the officers have a lawful right of access to
the object, they may seize it without a warrant.” Minnesota v. Dickerson, 508
U.S. 366, 375 (1993); State v. Sisco, 239 Ariz. 532, 535, ¶ 11 (2016). Courts
have recognized two important limitations on the doctrine. First, police
must still have probable cause to believe the object in plain view is
contraband “without conducting some further search of the object.”
Dickerson, 508 U.S. at 375. Second, the incriminating character must be
“immediately apparent,” otherwise the plain view doctrine does not justify
its seizure. Id.

¶17            On this sparse record, we cannot review (much less reverse)
the superior court’s decision. See State v. Berge, 130 Ariz. 135, 136 (1981)
(“We have held that it is the responsibility of the party objecting to see that
the record on appeal contains the material to which exception is taken.”);
State v. Lavers, 168 Ariz. 376, 399 (1991) (“[W]e assume that any evidence
not available on appeal supports the trial court’s actions.”).

¶18           Aside from three stipulated facts gleaned from an oral
argument transcript, this court has no evidence, no documents and no
testimony to perform an intelligent and meaningful review. Thus, while
the State asserts Officer Marienau’s attention was caught by “giant” and
“colorful handwriting” in the notebooks, this court has no notebooks in the
record on appeal, and no testimony or police reports to test or accept the
State’s descriptions in any form. Also missing from the record is any
testimony from Officer Marienau that he saw a list of credit card numbers
while skimming the notebooks and immediately understood the
incriminating character of the evidence, whether based on his law
enforcement experience, training or otherwise. Nor was that evidence
introduced in the superior court.

              C.     Good-Faith Exception

¶19           Assuming the officers had no exception to the warrant
requirement, the State argues the evidence is nonetheless admissible under
the good-faith exception to the exclusionary rule. The burden rests with the
State to prove that the good-faith exception applies under either federal or




                                      6
                            STATE v. MCNEILL
                            Decision of the Court

state law. State v. Crowley, 202 Ariz. 80, 91, ¶ 32 (App. 2002). We review de
novo the legal question of whether the State satisfied this burden. Id.

¶20           Arizona recognizes the good-faith exception to the
exclusionary rule when law enforcement “objectively, reasonably relie[s]
on ‘binding appellate precedent.’” State v. Weakland, 246 Ariz. 67, ¶ 8 (2019).
The State claims that Officer Marienau “objectively” and “reasonably”
relied on State v. Kelly, 130 Ariz. 375 (App. 1981), as “binding appellate
precedent in the plain view context [that] otherwise supported his
conduct.”

¶21           This record, however, includes no documents or testimony to
compare and contrast the search at issue here with that in Kelly, where this
court held that officers must have understood the importance of blank
registration forms from a glance because the forms “h[ad] bold-faced
headings which could be identifiable as registration forms even if simply
glanced at while searching for weapons.” Id. at 378. And the State’s
description of “giant” and “colorful handwriting” in the notebooks, first
raised in a motion for reconsideration below, is not evidence.

                               CONCLUSION

¶22           We affirm the superior court’s decision to suppress the
contents of the two notebooks.




                          AMY M. WOOD • Clerk of the Court
                          FILED: AA




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