                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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, Appellee,

                                        v.

          BRIAN WILLIAMS DESHAWN MURPHY, Appellant.

                             No. 1 CA-CR 15-0806
                              FILED 2-28-2017


           Appeal from the Superior Court in Maricopa County
                        No. CR2014-122505-001
               The Honorable David O. Cunanan, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General's Office, Phoenix
By Eric Knobloch
Counsel for Appellee

Maricopa County Public Defender's Office, Phoenix
By Mikel Steinfeld
Counsel for Appellant
                            STATE v. MURPHY
                            Decision of the Court



                       MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Margaret H. Downie and Judge James P. Beene joined.


J O H N S E N, Judge:

¶1            Brian Williams Deshawn Murphy appeals his conviction and
sentence for misconduct involving weapons. The sole issue on appeal is
whether the superior court erred in denying Murphy's motion to suppress
evidence found in a search of the car he was driving. For the reasons that
follow, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2              Police officers responded to reports of an incident in Phoenix.1
Upon their arrival, officers pulled Murphy out of a car and searched it
without a warrant, concerned someone might be hiding inside. They found
a rifle in the trunk.

¶3             Murphy was charged with misconduct involving weapons
and unlawful use of means of transportation. At the hearing on Murphy's
motion to suppress the rifle found in the trunk of the car, the court
instructed the parties to focus on the question of Murphy's standing to
claim a Fourth Amendment violation. The State called one of the
responding officers as its lone witness. He testified that, after first claiming
he borrowed the car, Murphy spontaneously admitted to officers at the
scene that he had stolen the car from his girlfriend. The officer further
testified that when Murphy was interviewed a couple of days later, he again
acknowledged stealing the car. The officer also testified that Murphy's
girlfriend had told authorities that someone had taken the car without
permission. The court also admitted an affidavit signed by Murphy's
girlfriend, reporting the car stolen. Murphy introduced no evidence. The
court made the following finding:

              The Court finds that based upon [the girlfriend's
       affidavit], as a business record, the vehicle being reported


1     We review the facts in the light most favorable to sustaining the
superior court's ruling. State v. Jean, 239 Ariz. 495, 497, n.1 (App. 2016).


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                            STATE v. MURPHY
                            Decision of the Court

       stolen, the Court finds also while the defendant's first
       statement was that he borrowed the vehicle, his later
       statement that he had stolen the vehicle is, in my mind,
       equivalent to an abandonment, so the Court finds that Mr.
       Murphy does not have standing to argue the search of the
       vehicle.

              Separate, the Court finds that the officer's belief that
       they could open the trunk as a [Terry] stop, a good faith belief
       that the Court would believe, is a mistake of law under
       Arizona [v.] Hicks. There is a U.S. Supreme Court case that
       came out this year, that talked about mistake of law of good
       faith by the police officers, not requiring exclusion.

              So for the separate reasons, one lack of standing, two,
       abandonment, and three, good faith, on the part of the police
       officers that an otherwise reasonable search, the Court would
       deny the motion to suppress the seizure of the rifle from the
       trunk.

¶4           Separate juries acquitted Murphy of unlawful use of means of
transportation and found him guilty on one count of misconduct involving
weapons. The court sentenced him to a 12-year prison term.

¶5             Murphy timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution and Arizona Revised
Statutes sections 12-120.21(A)(1) (2017), 13-4031 (2017) and -4033(A) (2017).2

                               DISCUSSION

¶6            When the superior court has made findings of fact after an
evidentiary hearing, on review we consider whether the findings are clearly
erroneous. State v. Berryman, 178 Ariz. 617, 620 (App. 1994). We review the
court's evidentiary rulings for abuse of discretion. State v. Garcia, 224 Ariz.
1, 11, ¶ 32 (2010). We review a superior court's ruling on a motion to
suppress based solely on the evidence presented at the suppression
hearing. State v. Newell, 212 Ariz. 389, 396, ¶ 22 (2006).

¶7           In opposing a pretrial motion to suppress evidence, the State
has the burden of proving, "by a preponderance of the evidence, the
lawfulness in all respects of the acquisition of all evidence which the

2      Absent material revision after the date of an alleged offense, we cite
a statute's current version.


                                      3
                            STATE v. MURPHY
                            Decision of the Court

prosecutor will use at trial." Ariz. R. Crim. P. 16.2(b). In order to prevail on
a motion to suppress, however, the defendant must show that the search or
seizure violated his own Fourth Amendment rights. Rakas v. Illinois, 439 U.S.
128, 130, n.1 (1978); see Berryman, 178 Ariz. at 622 (defendant must show
"some sort of standing").

¶8             Murphy argues that because a jury ultimately acquitted him
of stealing the car, we must reverse the superior court's ruling that he lacked
standing to challenge the constitutionality of the search. Murphy, however,
offered no evidence in support of his motion to suppress to satisfy his
obligation to prove his standing to challenge the search. See Rakas, 439 U.S.
at 148 (defendants who asserted "neither a property nor a possessory
interest" in automobile could not complain their constitutional rights were
violated when it was searched).

¶9              In any event, Murphy's argument disregards the fact that the
State's burden of proof at a suppression hearing – by a preponderance of
the evidence, Arizona Rule of Criminal Procedure 16.2(b) – is a lower
burden than its burden at trial – beyond a reasonable doubt, State v. Carreon,
210 Ariz. 54, 64, ¶ 46 (2005) (quoting United States v. Gaudin, 515 U.S. 506,
510 (1995)). The superior court found the evidence the State presented at
the suppression hearing was sufficient, by a preponderance of the evidence,
to demonstrate Murphy lacked an interest in the car sufficient to establish
his standing to challenge the search. The court's ruling was supported by
the officer's testimony that Murphy twice admitted the car was stolen and
that Murphy's girlfriend reported the car stolen, along with the stolen-
vehicle affidavit signed by Murphy's girlfriend. Because the court's finding
that the car was stolen was not clearly erroneous, the court did not abuse
its discretion in ruling that Murphy lacked standing to challenge the search
of the car.




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                          STATE v. MURPHY
                          Decision of the Court

                             CONCLUSION

¶10           For the foregoing reasons, we affirm Murphy's conviction and
resulting sentence.




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




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