                    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       UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT
          PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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.

                DANA NICOLE YRASTORZA, Appellant.

                            No. 1 CA-CR 17-0059
                              FILED 6-13-2019


          Appeal from the Superior Court in Maricopa County
                       No. CR 2012-009381-002
               The Honorable Teresa A. Sanders, Judge

                                 AFFIRMED


                                  COUNSEL

Arizona Attorney General’s Office, Phoenix
By Terry M. Crist
Counsel for Appellee

Bain & Lauritano, Glendale
By Sheri M. Lauritano
Counsel for Appellant
                          STATE v. YRASTORZA
                           Decision of the Court



                      MEMORANDUM DECISION

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


C A M P B E L L, Judge:

¶1           Dana Yrastorza appeals her convictions and sentences for
multiple offenses stemming from a series of burglaries, arguing law
enforcement’s warrantless search of her historical cell-site location
information (“CSLI”) violated her Fourth Amendment rights. She failed to
raise this argument in the trial court, however, and has failed to
demonstrate reversible error on appeal.

                             BACKGROUND1

¶2            As part of an investigation into a string of burglaries,
Scottsdale police reviewed security footage and conducted surveillance and
wiretaps. Through these investigatory measures, officers identified Gary
Eisenmann as the serial burglar and Yrastorza as his accomplice.

¶3             After receiving a tip that Eisenmann planned to commit
another burglary, officers obtained search warrants authorizing them to
search Eisenmann’s truck, warehouse, and home. When officers conducted
a traffic stop and executed the search warrant on Eisenmann’s truck, they
found the passenger, Yrastorza, in possession of several pieces of jewelry,
later identified as fruits of the burglaries. Police then executed the search
warrants on Eisenmann’s house and warehouse. At the warehouse, the
officers located items purchased by Yrastorza with stolen credit cards
belonging to the victims of the burglaries.

¶4          The State charged Yrastorza with multiple felonies all
stemming from her participation in the series of burglaries. Yrastorza and
Eisenmann were tried together.

¶5           At trial, in addition to presenting other investigative
evidence, the State presented historical CSLI data obtained through the
defendants’ cellphone service providers. The CSLI data revealed that

1      We view the facts in the light most favorable to sustaining the jury’s
verdict. State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013).


                                     2
                            STATE v. YRASTORZA
                             Decision of the Court

Yrastorza was within a few miles of at least seven of the homes burglarized
by Eisenmann. Neither Eisenmann nor Yrastorza moved to suppress the
CSLI information in the trial court.2 Following a 31-day trial, a jury found
Yrastorza guilty on all counts.

                                 DISCUSSION

¶6            Yrastorza asserts that the CSLI data used to “tie [her] to the
burglaries” should have been suppressed because it was obtained without
a warrant, in violation of the Fourth Amendment. Carpenter v. United States,
138 S. Ct. 2206, 2218 (2018). Yrastorza contends that admission of the CSLI
data constituted fundamental reversible error.

¶7             Yrastorza argues that the trial court erred by failing to
suppress evidence obtained through a warrantless search. To support this
claim, Yrastorza asserts that “[w]ithout this cell phone information the State
may not have been able to tie [her] to the crimes.” In general, we review the
admissibility of evidence for an abuse of discretion. See State v. Ellison, 213
Ariz. 116, 129, ¶ 42 (2006). Because Yrastorza did not move to suppress the
CSLI data, however, we review this claim for fundamental error only. See
State v. Escalante, 245 Ariz. 135, 135, ¶ 1 (2018).

¶8              To prevail on a claim of fundamental error, a defendant must
first establish that trial error exists. Id. at 142, ¶ 21. Once trial error has been
established, we must determine whether the error is fundamental,
considering the totality of the circumstances. Id. “A defendant establishes
fundamental error by showing that (1) the error went to the foundation of
the case, (2) the error took from the defendant a right essential to his
defense, or (3) the error was so egregious that he could not possibly have
received a fair trial.” Id. If the defendant establishes fundamental error
under the first or second prong, he must make a separate showing of
prejudice, which also “involves a fact-intensive inquiry.” Id. (citation
omitted). If the third prong is established, the defendant “has shown both
fundamental error and prejudice, and a new trial must be granted.” Id.
Under this standard, “[t]he defendant bears the burden of persuasion at
each step” in this process. Id.




2      Although Eisenmann moved to suppress a police wiretap of his
cellphone and evidence gathered from the placement of a GPS tracker on
his vehicle, the motion did not encompass CSLI data. Yrastorza joined the
motion to suppress, though her cellphone was not subject to a wiretap.


                                         3
                          STATE v. YRASTORZA
                           Decision of the Court

¶9             Here, there is no trial error. The good-faith exception to the
exclusionary rule applies to the State’s routine procurement of third-party
call records because the incident occurred in 2012—well before the U.S.
Supreme Court’s 2018 decision in Carpenter. See State v. Jean, 243 Ariz. 331,
342-43, ¶¶ 40, 47 (2018) (searches via global positioning satellite tracking
device that were conducted in reasonable reliance on appellate precedent
not subject to exclusionary rule). Before Carpenter was decided, nearly all
federal circuit courts of appeal and the “vast majority of federal district
judges” had ruled that cell phone users had no expectation of privacy in
CSLI and, thus, warrants were not needed to obtain CSLI data from cellular
carriers. See United States v. Graham, 824 F.3d 421, 428 (4th Cir. 2016) (en
banc) (collecting cases). Because the Carpenter decision had not been issued
at the time of Yrastorza’s arrest, the good-faith exception applies, giving the
State a second vehicle to introduce the evidence at trial. See Jean, 243 Ariz.
at 342-43, ¶¶ 40-47 (finding the good-faith exception applied based on
United States v. Knotts, 460 U.S. 276 (1983), and the prior expectation of
privacy framework under the Fourth Amendment); State v. Weakland, 246
Ariz. 67, 73, ¶ 20 (2019) (applying the good-faith exception because it “is
unreasonable to require the police to predict a shift in the law when our
trial and appellate courts failed to do so”). Because no trial error exists,
Yrastorza has not shown fundamental error.

                               CONCLUSION

¶10           For the foregoing reasons, we affirm.




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




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