                             IN THE
             ARIZONA COURT OF APPEALS
                          DIVISION TWO


                     THE STATE OF ARIZONA,
                           Appellant,

                                v.

                  NICHOLAS OLAF KJOLSRUD AND
                     LONI KAY KAMBITSCH,
                           Appellees.

  Nos. 2 CA-CR 2015-0230 and 2 CA-CR 2015-0231 (Consolidated)
                      Filed March 18, 2016


        Appeal from the Superior Court in Cochise County
              Nos. CR201400526 and CR201400527
             The Honorable Karl D. Elledge, Judge

                           AFFIRMED


                           COUNSEL

Brian M. McIntyre, Cochise County Attorney
By Roger H. Contreras, Deputy County Attorney, Bisbee
Counsel for Appellant

Mark A. Suagee, Cochise County Public Defender, Bisbee
Counsel for Appellee Kjolsrud

Joel Larson, Cochise County Legal Defender
By Bruce Houston, Assistant Legal Defender, Bisbee
Counsel for Appellee Kambitsch
                STATE v. KJOLSRUD & KAMBITSCH
                       Opinion of the Court


                              OPINION

Presiding Judge Vásquez authored the opinion of the Court, in
which Chief Judge Eckerstrom and Judge Miller concurred.


V Á S Q U E Z, Presiding Judge:

¶1           Appellees Loni Kambitsch and Nicholas Kjolsrud were
charged with multiple drug-related offenses based on drugs and
drug paraphernalia seized from their vehicle after a traffic stop.
Relying, in part, on Rodriguez v. United States, ___ U.S. ___, 135 S. Ct.
1609 (2015), the trial court granted Kambitsch and Kjolsrud’s motion
to suppress the drug evidence, finding continued detention by a
sheriff’s deputy to conduct a drug-detection-dog investigation after
the completed traffic stop was not based on reasonable suspicion.
The state dismissed the cases and filed these appeals pursuant to
A.R.S. § 13-4032(6). The state argues the court erred when it
concluded the deputy conducting the stop lacked reasonable
suspicion to expand the scope of the detention. The state also
contends the good-faith exception to the exclusionary rule applies
because the deputy relied on previously binding precedent when
conducting the search. For the following reasons, we affirm.

                 Factual and Procedural Background

¶2           We view the evidence in the light most favorable to
upholding the trial court’s suppression order. State v. Vera, 196 Ariz.
342, ¶ 3, 996 P.2d 1246, 1247 (App. 1999). On an early morning in
September 2014, Cochise County Sheriff’s Deputy Adam Werkheiser
stopped the car being driven by Kambitsch because its license plate
was not illuminated. Werkheiser approached the passenger-side
window and asked Kambitsch for her driver license, vehicle
registration, and proof of insurance. He asked Kjolsrud, the sole
passenger, for his identification. Kambitsch and Kjolsrud gave
Werkheiser the requested items. Werkheiser then asked if there
were any weapons in the vehicle and “specifically . . . if there was
anything illegal within the passenger compartment.” Kjolsrud said



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               STATE v. KJOLSRUD & KAMBITSCH
                      Opinion of the Court

they had a rifle in the trunk, but both occupants stated there was
nothing illegal in the car.

¶3          Werkheiser returned to his patrol vehicle and
performed a records check, which revealed no issues with
Kambitsch’s driver license, but both Kambitsch and Kjolsrud had
outstanding, “non-extraditable” warrants. He also remembered
Kjolsrud “had been involved in a [prior] drug offense case.” By that
time, Deputy Michael McGeoghegan arrived at the scene as “a back-
up officer.”   Although Werkheiser testified he “could have
concluded the stop at that time” because he “knew the warrants
were non-extraditable” he nevertheless asked Kambitsch to step out
of the car and brought her near “the passenger fender of [his]
vehicle.”

¶4           Werkheiser testified Kambitsch made no eye contact as
they walked to his patrol vehicle, and, without prompting, she
quickly stated that she was aware of the warrant and “[t]he police
were always harassing her” about it. Kambitsch also emptied her
pockets and stated, “See, I don’t have anything on me” and “I’m
clean.” Werkheiser “thought it was odd because [he] hadn’t asked
her” a question yet and Kambitsch seemed rushed.

¶5           Werkheiser then asked for consent to search her vehicle.
Kambitsch replied: “I know my rights. I don’t have to let you
search. I know what my fiancé is going to say. He’s going to say,
No, and also if you want to search you can get a dog.” Werkheiser
testified he did not interpret this statement as giving consent. He
then radioed for Deputy Robert Watkins to bring his drug-detection
dog to the scene. The dog alerted to the vehicle, and during a
subsequent search, deputies found ninety-four grams of
methamphetamine, as well as tinfoil and a spoon covered in a “black
gooey substance.”

¶6           A grand jury indicted both Kambitsch and Kjolsrud for
conspiracy to commit possession of a dangerous drug for sale,
transportation of a dangerous drug for sale, possession of a
dangerous drug for sale, and two counts of possession of drug
paraphernalia. Kambitsch filed a motion to suppress, which
Kjolsrud joined, arguing that although the initial stop was justified,


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               STATE v. KJOLSRUD & KAMBITSCH
                      Opinion of the Court

Werkheiser lacked reasonable suspicion to prolong the stop. A little
more than a month before the suppression hearing, the United States
Supreme Court issued its decision in Rodriguez, ___ U.S. at ___, 135
S. Ct. at 1614-16, holding that law enforcement officers may not
“extend an otherwise-completed traffic stop, absent reasonable
suspicion, in order to conduct a dog sniff.” Kambitsch and Kjolsrud
informed the trial court of Rodriguez on the day of the suppression
hearing, and the state filed a response the following day arguing
that, even if a constitutional violation had occurred, the good-faith
exception to the exclusionary rule applied and, therefore, the
evidence should not be suppressed at trial.

¶7           After an evidentiary hearing, the trial court granted the
motion to suppress, “conclud[ing] that by detaining Kambitsch and
Kjolsrud after conducting a records check and warrants check,
Werkheiser prolonged the traffic stop beyond the time reasonably
required to complete his task, i.e., issue the citation/repair order”
and, “[m]oreover, the prolongation was not supported by
independent reasonable suspicion.” The state then moved to
dismiss the charges without prejudice and initiated these appeals,
which we consolidated. We have jurisdiction pursuant to A.R.S.
§§ 12-120.21(A)(1), 13-4031, and 13-4032(6).

                     Illegal Search and Seizure

¶8           The state argues Werkheiser did not extend the traffic
stop impermissibly and had developed reasonable suspicion during
the stop to conduct a further investigation. When reviewing an
order granting a motion to suppress, this court considers only the
evidence presented during the suppression hearing, State v. Gay, 214
Ariz. 214, ¶ 4, 150 P.3d 787, 790 (App. 2007), and defers to the trial
court’s factual findings, State v. Barnes, 215 Ariz. 279, ¶ 2, 159 P.3d
589, 590 (App. 2007). We review mixed questions of fact and law—
including the court’s ultimate conclusion as to whether reasonable
suspicion existed—de novo. State v. Wyman, 197 Ariz. 10, ¶ 5, 3 P.3d
392, 395 (App. 2000); Vera, 196 Ariz. 342, ¶ 4, 996 P.2d at 1247.

¶9          The Fourth Amendment prohibits unreasonable
searches and seizures. U.S. Const. amend. IV; see State v. Gilstrap,
235 Ariz. 296, ¶ 7, 332 P.3d 43, 44 (2014). “‘An investigatory stop of


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               STATE v. KJOLSRUD & KAMBITSCH
                      Opinion of the Court

a motor vehicle constitutes a seizure,’” but is less intrusive than an
arrest, and for that reason officers “need only possess a reasonable
suspicion that the driver has committed an offense” to conduct a
stop. State v. Livingston, 206 Ariz. 145, ¶ 9, 75 P.3d 1103, 1105 (App.
2003), quoting State v. Gonzalez-Gutierrez, 187 Ariz. 116, 118, 927 P.2d
776, 778 (1996). Thus, an officer who has witnessed a traffic
violation may initiate a stop. See Whren v. United States, 517 U.S. 806,
810 (1996); Vera, 196 Ariz. 342, ¶ 5, 996 P.2d at 1247.

¶10           That justification, however, does not give an officer
authority to conduct the stop indefinitely. See State v. Sweeney, 224
Ariz. 107, ¶ 17, 227 P.3d 868, 873 (App. 2010) (traffic stop “‘must be
temporary and last no longer than is necessary to effectuate the
purpose of the stop’”), quoting Florida v. Royer, 460 U.S. 491, 500
(1983). “[T]he tolerable duration of police inquiries in the traffic-
stop context is determined by the seizure’s ‘mission’—to address the
traffic violation that warranted the stop and attend to related safety
concerns.” Rodriguez, ___ U.S. at ___, 135 S. Ct. at 1614, quoting
Illinois v. Caballes, 543 U.S. 405, 407 (2005). In other words,
“[a]uthority for the seizure . . . ends when tasks tied to the traffic
infraction are—or reasonably should have been—completed.” Id.
Once the time needed to complete this mission has passed, an officer
“must allow a driver to continue on his way unless (1) the encounter
between the driver and the officer becomes consensual, or (2) during
the encounter, the officer develops a reasonable and articulable
suspicion that criminal activity is afoot.” Sweeney, 224 Ariz. 107,
¶ 17, 227 P.3d at 873; see also State v. Teagle, 217 Ariz. 17, ¶ 22, 170
P.3d 266, 272 (App. 2007).

¶11          The parties do not dispute that the initial traffic stop
was reasonable. Werkheiser properly conducted the stop after
viewing a traffic violation. See A.R.S. § 28-925(C); Vera, 196 Ariz.
342, ¶ 5, 996 P.2d at 1247. And, it was reasonable for Werkheiser to
make contact with Kambitsch and Kjolsrud, collect their documents,
and perform a records check. See Rodriguez, ___ U.S. at ___, 135 S.
Ct. at 1615 (“‘ordinary inquiries incident to’” traffic stops include
“checking the driver’s license, determining whether there are
outstanding warrants against the driver, and inspecting the




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                STATE v. KJOLSRUD & KAMBITSCH
                       Opinion of the Court

automobile’s registration and proof of insurance”), quoting Caballes,
543 U.S. at 408.

¶12          Werkheiser testified that after he completed these tasks,
he “could have concluded the stop at that time . . . because [he]
knew the warrants were non-extraditable.” Although his original
“intent was just to give the driver a warning for equipment
violation,” he decided to wait to “start th[at] process . . . after [he]
radioed Deputy Wat[kins].” When the trial court asked “[w]hat
prevented [him] from writing the warning and repair order prior to
questioning . . . Kambitsch,” Werkheiser responded, “I guess
myself.” Thus, when he asked Kambitsch to step out of the car and
walk back to his vehicle, under Rodriguez, this further delay
amounted to an additional seizure requiring independent
reasonable suspicion. See Rodriguez, ___ U.S. at ___, 135 S. Ct. at
1614-15.

¶13           The state nevertheless argues “[o]fficers are permitted
to ask motorists questions, even unrelated to traffic stops, so long as
the police do not unreasonably prolong the stop” and “are allowed
to order occupants out of a car, . . . especially when reasonably
necessary for safety concerns.” Law enforcement officers are
permitted to remove occupants from a vehicle as a safety precaution.
See Pennsylvania v. Mimms, 434 U.S. 106, 117 n.6 (1977). But in
Rodriguez, the United States Supreme Court clarified this general
rule: “Unlike a general interest in criminal enforcement, . . . the
government’s officer safety interest stems from the mission of the
stop itself. . . . On-scene investigation into other crimes, however,
detours from that mission. . . . So too do safety precautions taken in
order to facilitate such detours.” Rodriguez, ___ U.S. at ___, 135 S. Ct.
at 1616.

¶14         Nothing in the record suggests Werkheiser had safety
concerns when he returned to the car after the records check was
completed. He conceded he had no reason to question that the rifle
“was secured in the trunk” of the vehicle and it did not “cause[ him]
any concern for [his] own personal safety.” Werkheiser testified:

             Based on [the warrants] I wanted to
             determine if there was any criminal activity


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                STATE v. KJOLSRUD & KAMBITSCH
                       Opinion of the Court

             going on.       In most of my criminal
             investigations I thought it was good to talk
             to people away from other people to get
             their stories correct or to see if their stories
             are different or the same.

Thus, removing the driver from the car to undertake further
questioning falls into the category of a “detour” from the mission of
the underlying traffic stop as described in Rodriguez. And, because
Werkheiser conceded that, instead of taking this detour, he could
have completed the traffic stop at that time, his detour amounts to
an additional seizure under the Fourth Amendment.

¶15          Consequently, we must determine whether the deputy
had reasonable suspicion to extend the detention beyond the traffic
stop. Reasonable suspicion exists if, under the totality of the
circumstances, an officer developed “‘a particularized and objective
basis for suspecting the particular person stopped of criminal
activity.’” State v. Evans, 237 Ariz. 231, ¶ 8, 349 P.3d 205, 208 (2015),
quoting United States v. Cortez, 449 U.S. 411, 417-18 (1981). “‘[I]n
determining whether [an] officer acted reasonably . . . , due weight
must be given, not to his inchoate and unparticularized suspicion or
hunch, but to the specific reasonable inferences which he is entitled
to draw from the facts in light of his experience.’” State v. Johnson,
220 Ariz. 551, ¶ 6, 207 P.3d 804, 808 (App. 2009), quoting Terry v.
Ohio, 392 U.S. 1, 27 (1968) (first alteration in Johnson); see also State v.
Fornof, 218 Ariz. 74, ¶¶ 5-6, 179 P.3d 954, 956 (App. 2008).

¶16          Werkheiser testified that he “suspected there was
criminal activity going on after [he] received the information from
the checks.” Kambitsch’s warrant “was for a drug offense,” but
Werkheiser could not “recall the nature” of Kjolsrud’s warrant. He
also “looked up [Kjolsrud’s] involvements within [the] department’s
database” because he remembered Kjolsrud “had been involved in a
drug offense case” before. But Werkheiser never testified about
what, if anything, he had discovered or how Kjolsrud had been
involved in the prior case.

¶17         Criminal history alone cannot support a finding of
reasonable suspicion. State v. Woods, 236 Ariz. 527, ¶ 12, 342 P.3d


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                STATE v. KJOLSRUD & KAMBITSCH
                       Opinion of the Court

863, 866 (App. 2015). And, although an outstanding warrant could
“‘cast a suspicious light on . . . seemingly innocent behavior,’” id.,
quoting United States v. Simpson, 609 F.3d 1140, 1147 (10th Cir. 2010)
(alteration in Woods), in this case we agree with the trial court—
Werkheiser did not identify any other circumstances that established
reasonable suspicion. He stated the location of the stop was not “a
high-crime area,” “[t]here was nothing inconsistent or implausible
about [their] . . . mode of travel that night,” he did not observe
anything in particular when he made contact with Kambitsch and
Kjolsrud, and he had not “formed any opinions or anything” before
returning to his vehicle for the records check.1 See Fornof, 218 Ariz.
74, ¶ 5, 179 P.3d at 956 (appellate court must “‘give due weight to
inferences drawn from [the] facts by . . . local law enforcement
officers’”), quoting Ornelas v. United States, 517 U.S. 690, 699 (1996).
Thus, it appears Werkheiser’s decision to conduct a separate
criminal investigation was based solely on the warrants and
Kjolsrud’s involvement in a former case. Considering the totality of
the circumstances, the deputy lacked reasonable suspicion to delay
the traffic stop, and that delay amounted to an unreasonable search
and seizure. See Wyman, 197 Ariz. 10, ¶ 5, 3 P.3d at 395; Vera, 196
Ariz. 342, ¶ 4, 996 P.2d at 1247.



      1The   state asserts Werkheiser “observed that the vehicle
contained a lot of personal property” and “that there was a blue
butane torch on the passenger floorboard at [Kjolsrud’s] feet.” To
the extent the state suggests these facts added to Werkheiser’s
reasonable suspicion, we disagree. First, the timing of when the
deputies noticed the torch was disputed at the hearing. Second,
Werkheiser only stated that the personal property inside the vehicle
added to his reasonable suspicion (1) at the end of his testimony,
(2) at the prompting of the prosecutor, and (3) after having omitted
this fact several times earlier when listing what factors had
contributed to his suspicion. The trial court excluded these facts
from its findings and, therefore, implicitly rejected the officer’s
assertions. See State v. Pike, 113 Ariz. 511, 514, 557 P.2d 1068, 1071
(1976) (“The credibility of witnesses is a question for the trier of fact
whose determination will not usually be disturbed on appeal.”).


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                STATE v. KJOLSRUD & KAMBITSCH
                       Opinion of the Court

                          Exclusionary Rule

¶18          The state argues that, even if the delay resulted in an
unlawful search and seizure, the trial court should not have
suppressed the evidence obtained from that search. It asserts
“Werkheiser acted in good faith on existing case law in conducting
the traffic stop” and therefore the good-faith exception to the
exclusionary rule applies. We review the court’s application of
exclusionary principles de novo.2 State v. Rosengren, 199 Ariz. 112,
¶ 9, 14 P.3d 303, 307 (App. 2000). The state bears the burden of
showing the exception applies. State v. Crowley, 202 Ariz. 80, ¶ 32, 41
P.3d 618, 629 (App. 2002).

¶19           “[T]he sole purpose of the exclusionary rule [is] to deter
Fourth Amendment violations,” State v. Driscoll, 238 Ariz. 432, ¶ 11,
361 P.3d 961, 963 (App. 2015), in particular when “‘the police have
engaged in willful, or at the very least negligent, conduct,’” State v.
Hyde, 186 Ariz. 252, 275, 921 P.2d 655, 678 (1996), quoting Michigan v.
Tucker, 417 U.S. 443, 447 (1974). But the threat of suppression has
little effect when officers act with the reasonable, good-faith belief
that their conduct falls within the permissible bounds of the Fourth
Amendment. See State v. Killian, 158 Ariz. 585, 588, 764 P.2d 346, 349
(App. 1988). Thus, “[e]vidence obtained during a search conducted
in reasonable reliance on binding precedent is not subject to the
exclusionary rule.” Davis v. United States, 564 U.S. 229, ___, 131 S. Ct.
2419, 2429 (2011).

¶20         For our purposes, binding precedent is “Arizona or
Supreme Court authority [that] explicitly authorized” the conduct in
question. State v. Mitchell, 234 Ariz. 410, ¶ 31, 323 P.3d 69, 78 (App.

      2The   state raised its good-faith argument in a supplemental
brief filed the day after the suppression hearing, and the trial court
did not address the argument in its order. Nonetheless, we address
this issue in the first instance because it is a mixed question of fact
and law, the trial court provided ample findings of fact relevant to
this issue, and all that remains to resolve is the application of the law
to those facts. See State v. Boteo-Flores, 230 Ariz. 551, ¶ 11, 288 P.3d
111, 114 (App. 2012).


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               STATE v. KJOLSRUD & KAMBITSCH
                      Opinion of the Court

2014); see State v. Reyes, 238 Ariz. 575, ¶¶ 11-12, 364 P.3d 1134, 1136
(App. 2015). If the law is, “at the very least, unsettled,” then
“application of the exclusionary rule would provide meaningful
deterrence because . . . it incentivizes law enforcement to err on the
side of constitutional behavior.” Mitchell, 234 Ariz. 410, ¶ 31, 323
P.3d at 78. In other words, although law enforcement agencies are
not “expected to anticipate new developments in the law,” they
should be aware of “reasonable” interpretations of existing case law.
Id.

¶21           The issue at hand, then, is whether Werkheiser’s
conduct was authorized by binding Arizona precedent prior to
Rodriguez. Two cases are instructive on this point: Sweeney and State
v. Box, 205 Ariz. 492, 73 P.3d 623 (App. 2003), abrogated in part by
Driscoll, 238 Ariz. 432, ¶¶ 12-13, 17, 361 P.3d at 964-65. In each case,
this court considered whether an officer’s delay in order to conduct
a dog sniff after a completed traffic stop amounted to an additional
detention requiring independent reasonable suspicion. Sweeney, 224
Ariz. 107, ¶¶ 13-15, 227 P.3d at 872; Box, 205 Ariz. 492, ¶¶ 13-20, 73
P.3d at 627-29. In Box, the officer “was traveling with a trained
narcotics detection dog” and the delay needed to conduct the dog
sniff was “less than a minute.” Box, 205 Ariz. 492, ¶¶ 5, 24, 73 P.3d
at 625, 630. This court therefore concluded the delay was “de
minimis and not unreasonable under the Fourth amendment.” Id.
¶¶ 18, 24; see also United States v. $404,905.00 in U.S. Currency, 182
F.3d 643, 649 (8th Cir. 1999) (two-minute delay for dog sniff a de
minimis intrusion on defendant’s liberty), abrogated by Rodriguez, ___
U.S. at ___, 135 S. Ct. at 1615-16. In Sweeney, by contrast, the officer
“waited until the arrival of a second officer (whose presence he had
not requested until after [the defendant] declined to consent to a
search) before conducting the sniff.” 224 Ariz. 107, ¶ 15, 227 P.3d at
872. Thus, we concluded that delay “was an additional seizure
under the Fourth Amendment,” requiring reasonable suspicion
independent of the traffic violation. Id. ¶ 20.

¶22         The state maintains that Box—along with its de minimis
intrusion rule—was binding precedent and that Rodriguez “broke
new ground in concluding that a dog sniff conducted after a
completed traffic stop unconstitutionally extended the stop.” See


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                STATE v. KJOLSRUD & KAMBITSCH
                       Opinion of the Court

Driscoll, 238 Ariz. 432, ¶ 17, 361 P.3d at 965 (relying on Box as
binding precedent). It suggests “the trial court did not consider the
reasonableness of the officers’ conduct in light of the then-applicable
law” and instead improperly focused solely on Rodriguez, which the
state characterized as a “knee jerk reaction” during oral argument
before this court. We disagree.

¶23          Even if made before Rodriguez, the trial court’s ruling
would have been correct. Like the officer in Sweeney, Werkheiser
called for another deputy to come to the scene before the dog sniff
occurred. This delay—approximately ten minutes—was not “a de
minimis intrusion on the defendant’s liberty,” Sweeney, 224 Ariz.
107, ¶ 14, 227 P.3d at 872, as described in Box. Significantly, the
court in Box considered the delay for a drug-detection dog to arrive
at the scene to be “[a] noteworthy factual distinction.” Box, 205 Ariz.
492, ¶ 18, 73 P.3d at 628 (noting distinction between Box and United
States v. Wood, 106 F.3d 942 (10th Cir. 1997), in which the Tenth
Circuit ordered drugs suppressed, “is that, in Wood, the officer
making the traffic stop did not have a narcotics dog in his patrol
car”). Under these circumstances, the good-faith exception does not
apply. See Mitchell, 234 Ariz. 410, ¶ 31, 323 P.3d at 78.

¶24           Although the holding in Rodriguez was significant in
Arizona to the extent it abrogated Box, its holding did not “overrule
prior Supreme Court precedent or announce a new legal standard.”
Id. Rather, Rodriguez applied a general rule that the Court had
announced as early as 1983 in Royer, 460 U.S. at 500, and again in
2005 in Caballes, 543 U.S. at 407. See Rodriguez, ___ U.S. at ___, ___,
135 S. Ct. at 1612, 1614 (relying on Royer and Caballes for the
proposition that “the tolerable duration of police inquiries in the
traffic-stop context is determined by the seizure’s ‘mission’”); see also
Sweeney, 224 Ariz. 107, ¶ 17, 227 P.3d at 873 (relying on Royer). “A
seizure that is justified solely by the interest in issuing a . . . ticket to
the driver can become unlawful if it is prolonged beyond the time
reasonably required to complete that mission.” Caballes, 543 U.S. at
407.

¶25          The state has not shown that the good-faith exception
applies in this case. See Crowley, 202 Ariz. 80, ¶ 32, 41 P.3d at 629.



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              STATE v. KJOLSRUD & KAMBITSCH
                     Opinion of the Court

Therefore, the trial court did not err when it suppressed the
evidence. See Rosengren, 199 Ariz. 112, ¶ 9, 14 P.3d at 307.

                           Disposition

¶26         For the foregoing reasons, we affirm the trial court’s
orders granting Kambitsch and Kjolsrud’s motion to suppress.




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