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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                         JACOB PURDUE, Appellant.

                             No. 1 CA-CR 18-0804
                               FILED 11-21-2019


           Appeal from the Superior Court in Maricopa County
                        No. CR 2018-000894-001
            The Honorable Julie A. LaFave, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Paul J. Prato
Counsel for Appellant
                            STATE v. PURDUE
                            Decision of the Court


                       MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Lawrence F. Winthrop
joined.

B R O W N, Judge:

¶1            Jacob Purdue appeals his convictions and sentences for two
drug-related charges. He argues fundamental error occurred because the
State failed to prove that he was given Miranda warnings before being
questioned by a police officer. Because Purdue did not file a motion to
suppress, his argument is waived. We therefore affirm.

                              BACKGROUND

¶2            After placing Purdue under arrest for an outstanding
warrant, Sergeant Kunda performed a search for illegal contraband or
weapons. Kunda found a hypodermic needle and a small vial containing a
brownish liquid in Purdue’s pocket. When Detective Henderson asked
Purdue if the substance was heroin, Purdue replied that it was heroin, and
he was using it to self-medicate. As relevant here, the State charged Purdue
with one count of possession or use of narcotic drugs (heroin) and one count
of possession of drug paraphernalia. A jury found him guilty on both
counts. The trial court imposed concurrent prison sentences, and Purdue
timely appealed.

                                DISCUSSION

¶3              Under Miranda v. Arizona, 384 U.S. 436, 444 (1966), a person in
police custody must be warned that he has the right to remain silent, that
any statement he makes may be used as evidence against him, and that he
has the right to consult with an attorney before being questioned by police.
It is undisputed that Purdue was in custody when the detective asked him
if the liquid in the vial was heroin. See State v. Maciel, 240 Ariz. 46, 49, ¶ 11
(2016) (noting that a person is in custody when he is under formal arrest).
The record is silent, however, as to whether Purdue was read his Miranda
rights before he was asked this question.

¶4           Purdue argues that admission of his statement in response to
the detective’s question constitutes fundamental error because his
statement was made in response to an improper custodial interrogation. He
contends the heroin found in his pocket was not a “usable amount,” and


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                             STATE v. PURDUE
                             Decision of the Court

without the admission of his statement at trial, the jury could have reached
a different verdict.

¶5             Because Purdue failed to make these arguments in the trial
court, we would normally review them for fundamental error. See State v.
Escalante, 245 Ariz. 135, 140, ¶ 13 (2018). In this case, however, we must first
address the State’s contention that Purdue has waived any challenge he
may have had concerning the admissibility of his statements to the police.

¶6              Under Arizona Rule of Criminal Procedure 16.1(b), all pretrial
motions (other than lack of jurisdiction) must be filed no later than 20 days
before trial. Nothing in the record indicates that Purdue made any attempt
to bring the Miranda issue to the attention of the trial court even though the
court asked Purdue and his counsel during a settlement conference whether
there were “any issues with the arrest.” Because Purdue failed to challenge
the admissibility of his statements by filing a motion to suppress, he has
waived the issue on appeal. See State v. Tison, 129 Ariz. 526, 535 (1981); State
v. Griffin, 117 Ariz. 54, 56 (1977); see also U.S. v. Hamilton, 587 F.3d 1199, 1213,
1215 (10th Cir. 2009) (holding that when the defendant asserted a Miranda
rights violation for the first time on appeal, the issue had been waived).

¶7             In Tison, the defendant asserted several grounds on appeal for
excluding his incriminating statements, including an argument that the
statements were obtained in violation of Miranda. 129 Ariz. at 535. Our
supreme court declined to address his argument, however, because he
failed to raise it at the suppression hearing, where the only issue presented
was voluntariness. Id. The court explained that issues concerning
suppression of evidence that are not raised in the trial court are waived on
appeal. Id. The court then stated that “[t]he preclusion of issues applies to
constitutional objections as well as statutory objections because an
adherence to procedural rules serves a legitimate state interest in the timely
and efficient presentation of issues.” 129 Ariz. at 535. This analysis in Tison
is consistent with other cases addressing the need to timely assert
suppression issues. See e.g., State v. Bush, 244 Ariz. 575, 588–89, ¶ 54 (2018)
(holding that where the defendant did not file a motion to suppress “his
statements to law enforcement, request a voluntariness hearing, or object to
[the police officer’s] trial testimony, the trial court was not required to hold
a voluntariness hearing.”); State v. Snee, 244 Ariz. 37, 38–39, ¶¶ 6–10 (App.
2018) (holding that courts are not statutorily required to sua sponte conduct
a voluntariness hearing when the defendant fails to raise the issue).

¶8            Our supreme court has also explained that “[t]here is a
legitimate State interest in the orderly presentation of suppression issues.”


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                             STATE v. PURDUE
                             Decision of the Court

Griffin, 117 Ariz. at 56. Indeed, Purdue’s failure to raise the issue in the trial
court “has left us without the benefit of any factual findings.” U.S. v.
Cormier, 220 F.3d 1103, 1113 (9th Cir. 2000). If we were to attempt to review
this issue for fundamental error, we would have no evidentiary basis upon
which to do so. And it would deprive the State of the opportunity to
present evidence on a suppression matter the defendant seeks to challenge
for the first time on appeal. Purdue essentially asks us to presume that the
officer did not provide Miranda warnings without producing any factual
findings in support of his argument, which we will not do. The proper
method of challenging lack of compliance with Miranda is the filing of a
timely motion to suppress, which then shifts the burden to the State to
prove to the trier of fact that police did provide the required warnings. If a
defendant fails to challenge the admissibility of his statements to police in
the trial court, he cannot complain on appeal that police failed to advise him
of his Miranda rights.

                                CONCLUSION

¶9            Because Purdue did not challenge the admissibility of his
incriminating statements to police in the trial court proceedings, we affirm
his convictions and sentences.




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




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