                      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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 ex rel. WILLIAM G. MONTGOMERY, Maricopa
                 County Attorney, Petitioner,

                                         v.

  THE HONORABLE MICHAEL D. GORDON, Judge of the SUPERIOR
    COURT OF THE STATE OF ARIZONA, in and for the County of
                MARICOPA, Respondent Judge,

               REBECCA JEAN GEROW, Real Party in Interest.

                              No. 1 CA-SA 17-0011
                               FILED 2-23-2017


 Petition for Special Action from the Superior Court in Maricopa County
                        No. CR2015-005381-001 DT
                 The Honorable Michael D. Gordon, Judge

            JURISDICTION ACCEPTED; RELIEF GRANTED


                                     COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Amanda M. Parker
Counsel for Petitioner

Gordwin Law PLLC, Chandler
By Ursula H. Gordwin
Counsel for Real Party in Interest
                    STATE v. HON GORDON/GEROW
                          Decision of the Court



                       MEMORANDUM DECISION

Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Judge Patricia K. Norris and Judge Paul J. McMurdie joined.


J O N E S, Judge:

¶1            The State petitions for special action review of the trial court’s
order finding the State collaterally estopped from presenting evidence
seized without a search warrant based on the court’s prior suppression
order in a separate case. For the following reasons, we accept jurisdiction
and grant relief.

                 FACTS AND PROCEDURAL HISTORY

¶2            In July 2015, Phoenix police and fire departments responded
to an emergency call of a two-month-old child not breathing. The child was
transported to the hospital, but the hospital’s physicians were unable to
resuscitate him.

¶3            In the hospital room, a detective asked the child’s mother,
Rebecca Gerow, if he could have her house keys in order to conduct a death
investigation. Gerow was unable to find her keys, and the detective left the
room. Later, in the hospital hallway, the detective encountered Gerow’s
mother, who, unsolicited, provided him with the keys to Gerow’s home.
Without obtaining a warrant, the police entered Gerow’s home and found
drug paraphernalia and methamphetamine (collectively, the contraband).

¶4            The State charged Gerow in two separate cases with
possession of dangerous drugs for sale (the Drug Case) and child abuse (the
Child Abuse Case). In the Drug Case, Gerow filed a motion to suppress the
contraband, asserting the warrantless search of her home was unreasonable
and violated her Fourth Amendment rights. The trial court granted the
motion, as well as the State’s subsequent motion to dismiss the Drug Case
without prejudice. The State timely appealed the suppression order. That
appeal is currently pending before this Court in State v. Gerow, 1 CA-CR 16-
0756.




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                     STATE v. HON GORDON/GEROW
                           Decision of the Court

¶5             Meanwhile, the State moved forward with prosecution of the
Child Abuse Case. Prior to trial, the State requested clarification from the
trial court that the suppression order in the Drug Case did not prevent
introduction of the contraband as evidence in the Child Abuse Case. Gerow
objected, and the court heard oral argument on the State’s motion. After
taking the matter under advisement, the court entered a ruling identifying
the primary issue as “whether collateral estoppel precludes introduction of
the [contraband] evidence suppressed in the Drug Case in the Child Abuse
Case.” The court held that collateral estoppel did apply and suppressed the
contraband evidence. The State simultaneously filed a notice of appeal and
this petition for special action, both arguing the court erroneously applied
the doctrine of collateral estoppel.

                               JURISDICTION

¶6             We may accept special action jurisdiction when a case
“presents a pure question of law for which there is no ‘equally plain,
speedy, and adequate remedy by appeal.’” State ex rel. Smith v. Reeves, 226
Ariz. 419, 421, ¶ 9 (App. 2011) (quoting Ariz. R.P. Spec. Act. 1(a)); see also
Ariz. R.P. Spec. Act. 3(b) (noting special action may raise the issue of
“[w]hether the defendant has proceeded or is threatening to proceed
without or in excess of jurisdiction or legal authority”). The applicability of
collateral estoppel presents a question of law. See Garcia v. Gen. Motors
Corp., 195 Ariz. 510, 513, ¶ 6 (App. 1999) (citing Robi v. Five Platters, Inc., 838
F.2d 318, 321 (9th Cir. 1988), and Baroldy v. Ortho Pharm. Corp., 157 Ariz. 574,
578 (App. 1988)).

¶7             Furthermore, if we did not accept jurisdiction over this
petition, the State may not have an adequate remedy by appeal. The State
may appeal from an “order granting a motion to suppress the use of
evidence.” Ariz. Rev. Stat. (A.R.S.) § 13-4032(6) (2016). A “motion to
suppress” is one that narrowly challenges the lawfulness or
constitutionality of the State’s acquisition of evidence. The State’s motion
to clarify does not directly challenge the admissibility of the evidence and
may not be directly appealable. Compare State v. Bejarano, 219 Ariz. 518, 520,
¶ 3 (App. 2008) (rejecting a broad reading of the predecessor to A.R.S. § 13-
4032(6) that would grant the State the right to a direct appeal on “any court
ruling which sustains an objection to evidence before, during or after trial”)
(quoting State v. Lelevier, 116 Ariz. 37, 38 (1977)), and State v. Reyes, 238 Ariz.
304, 307, ¶ 6 (App. 2015) (concluding an order denying the State’s motions
was not an order “granting a motion to suppress the use of evidence” and
therefore not appealable under A.R.S. § 13-4032(6)) (citations omitted), with
State v. Rodriguez, 160 Ariz. 381, 382-83 (App. 1989) (holding the State’s right


                                        3
                    STATE v. HON GORDON/GEROW
                          Decision of the Court

to appeal under the predecessor to A.R.S. § 13-4032(6) “is not limited to the
suppression of illegally-obtained evidence”). Because the State may be
precluded from direct appeal of the trial court’s order, we cannot say it has
an equally plain, speedy, and adequate remedy.

¶8            For these reasons, we accept jurisdiction.

                               DISCUSSION

¶9            The State argues the trial court erred in applying collateral
estoppel because the interlocutory suppression order in the Drug Case was
not a final decision necessary for judgment. As an issue of law, we review
the application of collateral estoppel de novo. Garcia, 195 Ariz. at 513, ¶ 6
(citations omitted).

¶10            Generally, the doctrine of collateral estoppel prevents an issue
that has been determined by a valid and final judgment from being litigated
again by the same parties in a subsequent action. State v. Jimenez, 130 Ariz.
138, 140 (1981) (quoting Ashe v. Swenson, 397 U.S. 436, 443 (1970)). Although
disfavored, State v. Rodriguez, 198 Ariz. 139, 141, ¶ 6 (App. 2000) (citing
Standefer v. United States, 447 U.S. 10, 22-25 (1980)), collateral estoppel
applies in criminal cases where: (1) the issue sought to be re-litigated is
precisely the same as the issue in the previous litigation; (2) a final decision
on the issue was necessary for the judgment in the prior litigation; and (3)
there is mutuality of parties, State v. Whelan, 208 Ariz. 168, 172, ¶ 13 (App.
2004) (quoting Jimenez, 130 Ariz. at 140, and Rodriguez, 198 Ariz. at 141, ¶ 5).
We agree with the trial court and the State that only the second element is
at issue in this case.

¶11             In State v. Greenberg, this Court considered “whether an
interlocutory suppression order, subject to appeal, is final for purposes of
collateral estoppel,” and therefore sufficient to satisfy the second element
of the test set forth in Whelan. 236 Ariz. 592, 598, ¶ 28 (App. 2015) (citation
omitted). The Greenberg Court acknowledged that, in order for collateral
estoppel to apply, the interlocutory order must constitute a “final decision”
and the initial litigation from which that order derives must have resulted
in a “prior judgment.” Id. at 599, ¶ 30. The Court held that litigation
culminating in a dismissal without prejudice does not constitute a “prior
judgment” within the meaning of Arizona Rule of Criminal Procedure
26.1(a), because that dismissal is not an “adjudication of the court based
upon the verdict of the jury, upon the plea of the defendant, or upon its
finding following a non-jury trial, that the defendant is guilty or not guilty.”
Id. at 599-600, ¶¶ 34, 36.



                                       4
                    STATE v. HON GORDON/GEROW
                          Decision of the Court

¶12           Likewise, the voluntary dismissal, without prejudice, of the
Drug Case did not result in a “prior judgment.” Therefore, the
interlocutory suppression order in the Drug Case cannot collaterally estop
the parties from re-litigating, in the Child Abuse Case, whether the
contraband found in Gerow’s home was illegally obtained.1

                               CONCLUSION

¶13           For the foregoing reasons, we accept special action
jurisdiction and grant relief, vacate the trial court’s order finding the State
was collaterally estopped from presenting the contraband evidence in the
Child Abuse Case, and lift this Court’s previously ordered stay. We express
no opinion whether the contraband evidence should be suppressed in the
Child Abuse Case pursuant to the Fourth Amendment.




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




1      The Greenberg Court also held that an interlocutory suppression
order from which no appeal is taken is not a “final decision” and therefore,
“cannot form the foundation for application of collateral estoppel in a
subsequent case.” 236 Ariz. at 599, ¶ 32. Because Gerow has failed to show
a “prior judgment,” collateral estoppel does not apply, and we need not
consider whether the interlocutory suppression order that is pending
appeal constitutes a final decision for purposes of collateral estoppel.


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