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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                    JOSEPH ADAM DAZEN, Appellant.

                             No. 1 CA-CR 19-0339
                                 1 CA-CR 19-0378
                                 (Consolidated)
                               FILED 8-18-2020


           Appeal from the Superior Court in Maricopa County
                        No. CR2017-152063-001
                             CR2018-106930-001
             The Honorable George H. Foster, Jr. (Retired)

                    VACATED IN PART; REMANDED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Brian Coffman
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Lawrence S. Matthew
Counsel for Appellant
                           STATE v. DAZEN
                          Decision of the Court



                     MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge James B. Morse Jr. and Judge Paul J. McMurdie joined.


C R U Z, Judge:

¶1           Joseph Adam Dazen appeals his conviction for misconduct
involving weapons in CR2018-106930-001, the resulting revocation of his
probation in CR2017-152063-001, and the sentences imposed. For the
following reasons, we vacate the superior court’s order denying Dazen’s
motion to suppress. This appeal is stayed until after the superior court
conducts further proceedings.

              FACTUAL AND PROCEDURAL HISTORY

¶2           Phoenix Police Officers DiCarlo and Carnahan were on patrol
when they confronted Dazen in an alley. Officer Carnahan patted Dazen
down and found a loaded handgun in his waistband. Dazen admitted he
had a prior felony conviction. In fact, Dazen was on probation for that
conviction.

¶3             The State charged Dazen with misconduct involving weapons
based on his status as a prohibited possessor and sought to revoke his
probation. Dazen subsequently moved to suppress evidence of the
handgun, arguing the encounter with Officers DiCarlo and Carnahan
violated his Fourth Amendment rights. After denying Dazen’s request for
an evidentiary hearing, the superior court denied the motion. Dazen
subsequently waived his right to counsel and proceeded to represent
himself at trial.

¶4            The jury returned a guilty verdict. Because the verdict
automatically resulted in a violation of Dazen’s probation conditions, the
superior court revoked his probation and imposed consecutive sentences.
Dazen timely appealed. We have jurisdiction pursuant to Arizona Revised
Statutes (“A.R.S.”) sections 12-120.21(A)(1) and 13-4033(A)(1).




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                             STATE v. DAZEN
                            Decision of the Court

                               DISCUSSION

¶5            Dazen argues the superior court erred by granting his request
for waiver of trial counsel. Dazen also challenges the court’s denial of his
motion to suppress.

I.     Waiver of Counsel

¶6             “[A] waiver of counsel ‘must not only be voluntary, but must
also constitute a knowing and intelligent relinquishment or abandonment
of a known right or privilege . . . .’” State v. Dann, 220 Ariz. 351, 359, ¶ 16
(2009) (quoting Edwards v. Arizona, 451 U.S. 477, 482 (1981)). Thus, to validly
waive counsel, “[a] prospective pro se litigant must understand (1) the
nature of the charges against him, (2) the dangers and disadvantages of self-
representation, and (3) the possible punishment upon conviction.” Id. at
360, ¶ 24 (citation omitted). We review the superior court’s determination
that a defendant made a voluntary, knowing, and intelligent waiver of his
right to counsel for an abuse of discretion. See id. at ¶ 25.

¶7               Dazen contends his waiver was not knowing and intelligent
because, although he knew when he waived counsel that he faced
consecutive sentences, he did not understand that his time spent
incarcerated would be applied to the first sentence only. See A.R.S. § 13-
708(E) (when a defendant is convicted of a dangerous offense while on
probation, probation must be revoked and consecutive sentences imposed);
State v. McClure, 189 Ariz. 55, 57 (App. 1997) (“When consecutive sentences
are imposed, a defendant is not entitled to presentence incarceration credit
on more than one of those sentences, even if the defendant was in custody
pursuant to all of the underlying charges prior to trial.”). Dazen mistakenly
assumed both sentences would be credited with all pre-sentence time
served, equally day-for-day. But he fails to cite a case where a defendant’s
misunderstanding regarding the proper application of pre-sentence
incarceration credit to consecutive sentences was a factor in finding a
waiver of counsel invalid. See State v. Martin, 102 Ariz. 142, 146 (1967) (“All
factors relating to the determination of whether the defendant knew exactly
what he was doing when he waived his right to counsel are relevant.”).
And a defendant’s comprehension of such a technical aspect of criminal law
is not necessary for a constitutionally valid waiver of counsel. Id. (“The test
to be applied in determining whether one is legally capable of waiving
counsel . . . is clearly [n]ot one of legal skills.”).

¶8           In any event, the record amply demonstrates that Dazen
voluntarily, knowingly, and intelligently chose to waive counsel and



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                             STATE v. DAZEN
                            Decision of the Court

represent himself at trial. After Dazen completed and signed a waiver form
that thoroughly explained his right to counsel, the superior court held an
extensive colloquy with him, during which the court advised Dazen of the
range of punishment he faced.            Throughout the colloquy, Dazen
consistently indicated he understood the charges against him, the risks
associated with proceeding without counsel, and his potential punishment.
After the court explained the sentencing consequences of a guilty verdict, it
asked Dazen whether he understood the information about the possible
punishments. Dazen responded, “Really, the longer I sit in here, the more
[sic] smarter I get about this.” Accordingly, the superior court did not abuse
its discretion by granting Dazen’s waiver of counsel. See State v. Cornell, 179
Ariz. 314, 324 (1994) (“Although a court should warn of the dangers and
disadvantages generally inherent in self-representation, it is not reversible
error to fail to warn of every possible strategic consideration.” (citation
omitted)).

II.    Motion to Suppress1

¶9            The Fourth Amendment protects people from unreasonable
searches and seizures. Scott v. United States, 436 U.S. 128, 137 (1978).
Generally, a warrantless search is per se unreasonable under the Fourth
Amendment. State v. Branham, 191 Ariz. 94, 95 (App. 1997) (citing State v.
Castaneda, 150 Ariz. 382, 389 (1986)).

¶10             “[W]henever a police officer accosts an individual and
restrains his freedom to walk away, he has ‘seized’ that person.” Terry v.
Ohio, 392 U.S. 1, 16 (1968). The Fourth Amendment governs such seizures.
Id. However, the United States Supreme Court has recognized that some
seizures are significantly less intrusive than an arrest and may be
“reasonable,” thus withstanding scrutiny under the Fourth Amendment
without probable cause. Michigan v. Summers, 452 U.S. 692, 697-98 (1981).
As a result, if an officer has “reasonable suspicion” that a person is engaged
in criminal activity, the officer may investigate and briefly detain the person
to “effectuate the purpose of the stop [and] . . . the investigative methods
employed should be the least intrusive means reasonably available to verify
or dispel the officer’s suspicion in a short period of time.” Florida v. Royer,
460 U.S. 491, 500 (1983). During such a seizure, a “Terry pat-down” or
“protective frisk” permits officers to conduct a weapon search limited to the
outside of clothing in order to protect themselves and others in

1      The State argues that Dazen has waived this issue. We find,
however, that Dazen sufficiently raised the issue before the superior court
and in his opening brief. Finding no waiver, we decide the issue.


                                      4
                             STATE v. DAZEN
                            Decision of the Court

circumstances where they lack probable cause to make an initial arrest.
Terry, 392 U.S. at 27, 29-30.

¶11            Whether a Terry pat-down is constitutionally valid further
turns on whether a police officer who reasonably suspects that criminal
activity is “afoot” encounters a person consensually. During a consensual
encounter, the officer may permissibly conduct a Terry pat-down if the
officer reasonably believes the person is both armed and dangerous. State
v. Serna, 235 Ariz. 270, 275, ¶¶ 21-22 (2014); see Gastelum v. Hegyi, 237 Ariz.
211, 213, ¶ 6 (App. 2015) (discussing Serna); but cf. State v. Primous, 242 Ariz.
221, 223, ¶ 11 (2017) (“Although a frisk is less intrusive than a full-body
search, the Fourth Amendment prohibits any search of an individual unless
the police have a reasonable belief that crime is afoot and the individual is
armed and dangerous.”). If the encounter is non-consensual, a Terry pat-
down is constitutionally justified if the officer reasonably believes only that
the person is armed; whether he or she also presents a danger is not
required for Fourth Amendment purposes. Gastelum, 237 Ariz. at 214, ¶ 11.

¶12            The exclusionary rule prevents the introduction of evidence
seized in violation of a person’s Fourth Amendment rights. State v.
Hackman, 189 Ariz. 505, 508 (App. 1997). A defendant seeking to suppress
evidence based on a purported Fourth Amendment violation must initially
establish a prima facie violation. State v. Hyde, 186 Ariz. 252, 266 (1996); see
also Ariz. R. Crim. P. 16.2(b). Such a burden is preliminarily met when the
defendant establishes the evidence was seized pursuant to a warrantless
search. Rodriguez v. Arellano, 194 Ariz. 211, 215, ¶ 12 (App. 1999).

¶13            If the defendant successfully meets that burden, the State can
avoid the exclusionary rule by proving with a preponderance of the
evidence that the seizure ultimately comported with the Fourth
Amendment through, for example, application of a recognized exception to
the warrant requirement such as a Terry stop. Ariz. R. Crim. P. 16.2(b)(1);
State v. Gasbarri, 248 Ariz. 619, 621, ¶ 8 (App. 2020).

¶14           Here, although the State was prepared to present witnesses
for an evidentiary hearing, the superior court declined and relied solely on
Officer DiCarlo’s incident report. That report indicated Officers DiCarlo
and Carnahan approached Dazen in an alley after observing him adjust his
pants and appear to urinate. The officers asked Dazen what he was doing,
and he responded that he was fixing his back brace. Dazen provided his
identification. The officers did not arrest Dazen or issue a citation for the
purported public urination.




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                             STATE v. DAZEN
                            Decision of the Court

¶15           The report then states, in relevant part:

       Due to [Dazen] exhibiting suspicious behavior, such as
       fidgeting with his waistband and appearing nervous by
       shaking, Officer Carnahan had [Dazen] place his hands on his
       head and frisked him for weapons. Officer Carnahan frisked
       the front of [Dazen’s] waistband and felt what appeared to be
       a weapon, at which point [Dazen] stated that it was a gun.

¶16           Notably, the report does not indicate whether the officers
reasonably believed Dazen was armed or posed a risk of danger that would
justify the Terry pat-down. Similarly, whether the encounter was
consensual—or whether the consensual nature changed during the
encounter—is left to speculation. See Serna, 235 Ariz. at 272, ¶ 10 (“[P]olice
interactions with members of the public are inherently fluid, and what
begins as a consensual encounter can evolve into a seizure that prompts
Fourth Amendment scrutiny.”). Nonetheless, the superior court assumed
the officers were “reasonably concerned for their safety,” and the court
improperly relied on the State’s argument to find the officers “had been
provided a story regarding a back brace that did not make sense based upon
their training and experience, and [the] physical actions (conduct) by
[Dazen] suggestive of an attempt to hide or keep hidden a weapon.” See
Gasbarri, 248 Ariz. at 622, ¶ 11 (“[A] trial court must first have evidence—
not merely arguments of counsel—on which it can base its ruling before it
may rule on a motion to suppress.”). The court also found, without
evidentiary support, that the encounter between Dazen and the officers
occurred “in an area known as a high crime rate . . . . [And] typically, when
people are urinating in public, there’s a high incidence of people who are
on drugs or medication or alcohol or have a history of mental health
problems; therefore, creating a danger or potential danger to law
enforcement.”

¶17            The superior court abused its discretion by denying Dazen’s
motion to suppress without first conducting an evidentiary hearing. See
State v. Cruz, 218 Ariz. 149, 161, ¶ 47 (2008) (stating a ruling on a motion to
suppress evidence is reviewed for an abuse of discretion). It was
undisputed that Officers DiCarlo and Carnahan seized the handgun from
Dazen’s waistband without a warrant, and Dazen requested an evidentiary
hearing. Dazen was, therefore, entitled to such a hearing where the State
would be required to satisfy its evidentiary burden. See Hyde, 186 Ariz. at
270 (“If the challenged evidence was obtained without a warrant, the state
carries the entire evidentiary burden.”); Rodriguez, 194 Ariz. at 215, ¶ 12.



                                      6
                             STATE v. DAZEN
                            Decision of the Court

¶18             We vacate the court’s suppression ruling and remand for the
limited purpose of allowing it to hold a suppression hearing. This appeal
is stayed pending the outcome of that hearing. If, as a result of the hearing,
the superior court rules Dazen’s Fourth Amendment rights were not
violated, it will notify this court by causing a certified copy of its minute
entry to be transmitted to the clerk of this court along with the hearing
transcripts pursuant to Arizona Rule of Criminal Procedure 31.9. If either
party elects to file a supplemental brief based on the hearing, they may do
so within fifteen days of the superior court filing its minute entry. The
matter will be deemed submitted after the filing time has expired, the stay
will be lifted, and we will consider the remaining issues on appeal.

¶19           If, however, the superior court finds a constitutional violation
occurred, it shall enter an order setting aside Dazen’s conviction and
sentence. In that event, the stayed portion of this appeal will be dismissed
as moot. See State v. Peterson, 228 Ariz. 405, 411, ¶¶ 20-21 (App. 2011)
(ordering similar result in the context of a purported Miranda violation and
involuntariness of defendant’s statements).

                               CONCLUSION

¶20         The superior court’s order denying the motion to suppress is
vacated. We remand for further proceedings consistent with this decision.




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




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