State v. Mitcham

• Docket Number: 1 CA-CR 23-0014
• Decision Date: 22 August 2023
• Parties: STATE OF ARIZONA, Appellant, v. IAN MITCHAM, Appellee.
• Court: Arizona Court of Appeals

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STATE OF ARIZONA, Appellant,
v.
IAN MITCHAM, Appellee.

No. 1 CA-CR 23-0014

Court of Appeals of Arizona, First Division

August 22, 2023

Appeal from the Superior Court in Maricopa County No. CR2018-118086-001 The Honorable Roy C. Whitehead, Judge

Maricopa County Attorney's Office, Phoenix By Ryan Green &Nick Klingerman (argued) Counsel for Appellant

Arizona Attorney General's Office, Phoenix By Michael O'Toole &Alice M. Jones Amicus Counsel for Arizona Attorney General's Office in Support of Appellant

Maricopa County Public Defender's Office, Phoenix By Jeffrey A. Kirchler, Martha Barco Penunuri (argued), Richard D. Randall, Kevin Heade, &Mikel Steinfeld Counsel for Appellee

Arizona Attorneys for Criminal Justice, Tucson By David J. Euchner &Grant D. Wille Amicus Counsel for Arizona Attorneys for Criminal Justice in Support of Appellee

American Civil Liberties Union Foundation of Arizona, Phoenix By Jared G. Keenan Amicus Counsel for ACLU of Arizona in Support of Appellee

American Civil Liberties Union Foundation, New York By Vera Eidelman (argued), Pro Hac Vice Amicus Counsel for American Civil Liberties Union in Support of Appellee

Presiding Judge Paul J. McMurdie delivered the Court's opinion, in which Judge Michael J. Brown joined. Judge Michael S. Catlett specially concurred.

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OPINION

MCMURDIE, JUDGE

¶1 The State appeals from the superior court's order suppressing Mitcham's DNA profile. The State argues that developing a DNA profile from blood lawfully in its possession does not constitute a search under the Fourth Amendment. In the alternative, the State argues that, under the circumstances, the use of Mitcham's DNA profile is permitted by an exception to the warrant requirement.

¶2 We agree with the State that creating a DNA profile from a lawfully held blood sample does not violate the Fourth Amendment. But here, the State's possession was no longer lawful because the State acquired the blood through consent and developing a DNA profile from it exceeded the scope of that consent. Still, the superior court erred by suppressing Mitcham's DNA profile because (1) probable cause supported his arrest even without the impermissible DNA match that allowed the State to obtain a buccal swab and develop a DNA profile; and (2) once Mitcham pled guilty to other felony charges, the profile was properly in the State's possession. Thus, we reverse the suppression order and remand for further proceedings.

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FACTS AND PROCEDURAL BACKGROUND

¶3 In February 2015, a woman was found dead in her home lying nude in a pool of blood. The victim had sustained several injuries, including a large wound on the back of her head, ligature marks around her neck, and several lacerations to her vagina. The police identified a strong chemical odor throughout the house, chemical burns on the victim, and blood smears near the furniture. Based on the evidence, the police concluded that the killer had tried to clean up the crime scene. The police collected biological swabs from the scene and developed an unknown male DNA profile. Police entered the unknown DNA profile into the federal Combined DNA Index System ("CODIS"). But the CODIS database returned no matches, and the murder went unsolved.

¶4 In 2018, law enforcement performed a familial DNA test on the unknown profile. The test identified an Arizona prison inmate as a close relative of the unknown profile. The police discovered the inmate had two brothers, one living close to the crime scene. As a result, the police began to surveil this brother, the defendant Ian Mitcham.

¶5 Coincidentally, the police were already familiar with Mitcham. In January 2015, they arrested Mitcham for a misdemeanor driving under the influence ("DUI") offense. Also, before the familial DNA test, Mitcham had been charged with a felony narcotics possession offense in 2016 and an aggravated DUI in 2017. See State v. Mitcham, Maricopa County Cause No. CR2016-111513-001; State v. Mitcham, Maricopa County Cause No. CR2017-001717-001. Mitcham would later plead guilty to both crimes.

¶6 During the 2015 DUI arrest, Mitcham consented to have his blood drawn. Police read Mitcham the warning provided by the Admin Per Se Implied Consent form, which provided that if Mitcham agreed to the draw, the blood would be used "to determine alcohol concentration or drug content." See Ariz. Dep't of Trans. Form #40-5807; see also A.R.S. § 28-1385. The warning authorized no other blood testing, and Mitcham was not informed that the police might conduct more tests. Based on the warning, Mitcham consented to a blood draw.

¶7 The police drew two blood vials according to Mitcham's 2015 consent. One vial allowed the police to test for alcohol or drug concentration, and the second allowed Mitcham to test his blood independently. Mitcham and the police officer signed a "Destruction Notice," which stated that if Mitcham did not pursue his opportunity to test

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within 90 days, his blood "sample will have been destroyed and unavailable for reanalysis." The police tested their sample and determined Mitcham was over the legal limit, and he was later convicted of a misdemeanor DUI for this 2015 offense.

¶8 But the police did not destroy Mitcham's blood sample after 90 days passed and possessed it three years later when they identified that Mitcham might be the long-sought killer. The police-without obtaining a warrant-analyzed the blood from the 2015 DUI consent draw, creating Mitcham's DNA profile. Mitcham's profile matched the unknown DNA at the 2015 murder scene.

¶9 The police then sought a search warrant, requesting authorization to search Mitcham's home and place a GPS tracker on his car. The search warrant affidavit noted that (1) the police had obtained DNA from the crime scene left by an unknown male source, (2) a familial DNA test of that profile revealed that the unknown DNA likely belonged to a father, son, or brother of inmate Mark Mitcham, and (3) Ian Mitcham had been identified as Mark Mitcham's brother. The affidavit did not identify Mark Mitcham's other relatives or explain why Ian Mitcham had specifically been selected for investigation. But the addresses of the victim and Ian Mitcham were in the affidavit. The affidavit revealed that Ian Mitcham's blood sample was in the custody of the Scottsdale Police Department from his 2015 DUI arrest and that a DNA profile from the blood matched the unknown profile from the crime scene.

¶10 The court approved the search warrant. Mitcham was later arrested, and a buccal swab was taken as part of a routine booking procedure. See A.R.S. § 13-610(K), (O). The grand jury charged Mitcham with first-degree murder, second-degree burglary, and sexual assault.

¶11 Mitcham moved pretrial to suppress the DNA evidence from his 2015 DUI blood draw and the subsequent DNA buccal sample from his arrest. He argued that the "extraction and creation of a DNA profile from a consensual blood draw . . . was an unreasonable search under the Fourth Amendment" because it "went far beyond the scope of what was permitted by his prior consent in the unrelated DUI traffic stop." He added that the DNA profile from his arrest buccal swab was the fruit of the original illegal search.

¶12 The superior court held an evidentiary hearing and granted the suppression motion. The court reasoned that though the police "may have been able to secure a warrant for [Mitcham's] DNA through further

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diligent investigation," the decision not to obtain a warrant "was at least a reckless violation of [Mitcham's] constitutional rights." The court also found it "troubling that the State essentially asserts that it has the unfettered ability to conduct subsequent searches of items held in custody for unrelated reasons." The court also suppressed Mitcham's DNA profile from the arrest buccal swab and any profile resulting from his convictions in the unrelated narcotics and aggravated DUI cases. Because the State intended to appeal, the superior court vacated the trial and stayed the proceedings.

¶13 The State appealed, and we have jurisdiction under Article 6, Section 9 of the Arizona Constitution and A.R.S. § 13-4032(6). See State v. Limon, 229 Ariz. 22, 24, ¶ 7 (App. 2011) ("[T]he plain language of § 13-4032 allows the state to appeal from an 'order granting a motion to suppress' without distinguishing between interlocutory or final orders.").

DISCUSSION

¶14 The State challenges the superior court's application of the exclusionary rule to suppress the DNA evidence extracted from Mitcham's 2015 consensual blood draw. First, the State argues there was no Fourth Amendment violation because developing a DNA profile from lawfully obtained evidence is not a "second search." Second, the State argues that even if there were a Fourth Amendment violation, Mitcham's DNA profile should not have been suppressed because several exceptions applied.

¶15 We review a court's factual findings on a motion to suppress for an abuse of discretion, State v. Smith, 250 Ariz. 69, 80, ¶ 16 (2020), and consider "only the evidence presented at the suppression hearing . . . viewing it in the light most favorable to sustaining the trial court's ruling," State v. Thompson, 252 Ariz. 279, 290, ¶ 26 (2022). But we review de novo the legal question of whether a search complied with the Fourth Amendment. Smith, 250 Ariz. at 80, ¶ 16.

¶16 The Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." U.S. Const. amend. IV; see also Ariz. Const. art. 2, § 8 ("No person shall be disturbed in

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his private affairs, or his home invaded, without authority of law.").^[1]Traditionally, courts viewed search and seizure cases through a lens of "common-law trespass," considering whether the state "obtain[ed] information by physically intruding on a constitutionally...