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State v. Ruelas

ARIZONA COURT OF APPEALS DIVISION TWO
May 30, 2018
No. 2 CA-CR 2016-0344 (Ariz. Ct. App. May. 30, 2018)

Opinion

No. 2 CA-CR 2016-0344

05-30-2018

THE STATE OF ARIZONA, Appellee, v. THADDAEUS SANCHEZ RUELAS, Appellant.

COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Mariette Ambri, Assistant Attorney General, Tucson Counsel for Appellee Emily Danies, Tucson Counsel for Appellant


THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e). Appeal from the Superior Court in Pima County
No. CR20151461002
The Honorable Richard S. Fields, Judge

AFFIRMED IN PART; VACATED IN PART AND REMANDED

COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Mariette Ambri, Assistant Attorney General, Tucson
Counsel for Appellee Emily Danies, Tucson
Counsel for Appellant

MEMORANDUM DECISION

Judge Espinosa authored the decision of the Court, in which Presiding Judge Vásquez and Judge Eppich concurred. ESPINOSA, Judge:

¶1 Following a jury trial, Thaddaeus Ruelas was convicted of seven counts of using a wire or electronic communication in a drug-related transaction, six counts of transporting, selling, or offering to sell methamphetamine, four counts of misconduct involving weapons, and one count each of possession of heroin, possession of cocaine, and conspiracy. The trial court sentenced him to a combination of concurrent and consecutive, enhanced prison terms totaling 50.5 years. On appeal, Ruelas argues the court erred in denying his motions to compel disclosure and for a new trial.

As the state points out, the trial court granted Ruelas's motion for a directed verdict as to his indictment for possession of heroin for sale, only instructing the jury on simple possession. At sentencing, however, the court misidentified the conviction as possession for sale, a class two felony, and sentenced Ruelas to the maximum term of twenty-eight years' incarceration. See A.R.S. §§ 13-703(J), 13-3408(A)(2), (B)(2). But mere possession is a class four felony with a maximum term of twelve years. See §§ 13-703(J), 13-3408(A)(1), (B)(1). Because we cannot determine with certainty the sentence Ruelas would have received for that lesser offense, we must remand to the trial court for the limited purpose of sentencing Ruelas under the appropriate statute. See State v. Ojeda, 159 Ariz. 560, 562 (1989).

Factual and Procedural Background

¶2 The charges against Ruelas in this case stem from his contact with agents from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and confidential informants in February 2015. In December 2014, before learning Ruelas's identity, the agents connected his address and phone number with the source of methamphetamine they had purchased during their investigation from codefendant Isaac Cooper. In January 2015, the agents mounted an outdoor camera near Ruelas's residence to monitor the front of the apartment and secured a pen register "trap and trace" warrant for his cell phone. The camera and pen register revealed that the source of the drugs was using a certain vehicle.

¶3 In an effort to learn the identity of the methamphetamine source, the ATF agents requested local police officers to conduct a traffic stop of the vehicle. During the stop, the agents "called the cell phone two or three different times in an attempt to see if the officer could hear" which of the three occupants, including Ruelas, possessed the phone. However, the officer "could not make that determination" and the phone's owner remained unknown following the traffic stop.

¶4 In addition to calling the cell phone during the traffic stop, the lead agent was in contact with two other ATF employees who were able to confirm, by means of a device called a Stingray, that the phone was in fact in the vehicle at the time. Two months later, the ATF employees used the Stingray a second time to confirm that the cell phone was near Ruelas's residence shortly before the execution of a search warrant at his apartment. Before trial, Ruelas filed a motion pursuant to Rule 15.1, Ariz. R. Crim. P., to compel the state "to produce these federal technicians/experts for deposition, and produce any reports, notes and/or statements made relative to the examination and determinations made as a result of their findings during their investigation."

A Stingray is a device used in law enforcement investigations to intercept cell phone information by "mimic[king] a cell tower so that responding cell phones provide to it data typically used for the functioning of the cellular network and individual phone administration." Hodai v. City of Tucson, 239 Ariz. 34, n.2 (App. 2016). See also United States v. Patrick, 842 F.3d 540, 542 (7th Cir. 2016) (A Stingray "pretends to be a cell-phone access point and, by emitting an especially strong signal, induces nearby cell phones to connect and reveal their direction relative to the device.").

¶5 At a pretrial hearing on Ruelas's motion, lead ATF agent Creighton Brandt testified about the use of the Stingray. At the end of the hearing, Ruelas argued Agent Brandt had provided "his recollection of what [the two ATF employees using the Stingray] were doing and how he believes they were doing it but he wasn't there and doesn't know what they did." He further argued he "need[ed] to talk to" the two ATF employees because he "would like to know what they were doing and when they were using" the Stingray because he was "concerned that they used [it] unlawfully."

¶6 In denying the motion, the trial court stated it understood Ruelas's position, but noted, "The reason [for] your concern is your hope based on your skepticism that you would discover something which would then lead to a motion to suppress which would then lead to the consequences of a granted motion to suppress were it granted." Ruelas was subsequently tried, convicted, and sentenced as described above. We have jurisdiction over his appeal pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).

Motion to Compel Disclosure

¶7 On appeal, Ruelas argues "the trial court erred when it failed to compel required disclosure and witness testimony from sources under the prosecutor's control, foreclosing [his] inquiry into the government's warrantless Stingray search of his phone." Ruelas devotes a significant portion of his brief to arguing we should "find that the Stingray surveillance was a Fourth Amendment Search and find that the Pen Register warrant did not authorize the search, and find that any evidence that was tainted by the illegal cell site simulator searches should have been suppressed." But that issue is not before us because Ruelas did not move to suppress any evidence based on the state's use of the Stingray. Rather, we must determine whether the court properly denied his Rule 15 motion to compel disclosure.

To the extent it would be appropriate for us to review for fundamental error that the trial court did not sua sponte suppress evidence, Ruelas has not argued fundamental error and any such issue is therefore waived. See State v. Moreno-Medrano, 218 Ariz. 349, ¶ 17 (App. 2008).

¶8 Rule 15.1(b)(3) provides, "the State must make available to the defendant" "all existing original and supplemental reports prepared by a law enforcement agency in connection with the charged offense." Additionally, Rule 15.1(b)(4) and (e)(1)(C) require the state to disclose information about, and reports prepared by, "each expert who has examined a defendant or any evidence in the case, or who the State intends to call at trial." Furthermore, Rule 15.1(g)(1) allows the defendant to obtain a court order for "material or information not included in this rule if the court finds . . . the defendant has a substantial need for the material or information to prepare the defendant's case" and "cannot obtain the substantial equivalent by other means without undue hardship."

We cite the current version of Rule 15 because it does not materially differ from the version in effect at the time Ruelas filed his motion before the trial court, and to do so is feasible and will not result in injustice. See Ariz. Sup. Ct. Order R-17-0002 (Aug. 31, 2017).

¶9 We review the trial court's decision not to compel disclosure for an abuse of discretion. State v. Cordova, 198 Ariz. 242, ¶ 6 (App. 1999). Ruelas asserts the state "had a duty to disclose records and reports produced by the Stingray in investigating [him], in particular because they were the product of a warrantless search and likely would have been helpful to his defense in that they possibly could have led to the suppression of evidence" or "a jury instruction permitting a negative inference against the State for failing to preserve evidence." Relatedly, Ruelas claims had he "had the opportunity to depose the agents who operated the Stingray, there is a reasonable likelihood that he could have gained insights into the State's use of the Stingray that would have benefitted him." He cites as possibilities testimony inconsistent with that of Agent Brandt revealing either that evidence "was collected as fruit stemming from the unconstitutional Stingray searches" or that the Stingray had actually been the source of the information used to obtain the warrants.

¶10 Ruelas's only asserted basis for believing the Stingray was used more extensively than the state acknowledged is Agent Brandt's "curious omission of the Stingray in his [warrant] affidavits, combined with the State's later refusal to produce the only law enforcement agents who had firsthand knowledge of how the Stingray was used." Ruelas claims "the omissions might have been calculated to hide the use of the Stingray: perhaps to hide the use of the Stingray itself, or to hide information from the Stingray that would have been damaging to the State's case." But Ruelas has not shown that the trial court abused its discretion in denying his motion to compel.

¶11 At the Rule 15 hearing, Agent Brandt testified that the two ATF employees had "assisted on two different dates[,] conducting surveillance on one date and assist[ing] on the day of the takedown of the search warrant." Brandt stated that the employees were using the pen register to monitor the movement of Ruelas's cell phone but also used the Stingray "after the traffic stop was made" to confirm the cell phone was in the vehicle. Brandt further testified the Stingray had been used a second time to confirm Ruelas's cell phone was close to his residence before the execution of the search warrant, but explained that information had no bearing on the authorization or execution of the search because the agents had already obtained the warrant and believed he would be there because of the camera.

¶12 Brandt's uncontradicted testimony was that the Stingray's use did not "have any bearing on [the] decision to execute the search warrant" and did not "have any bearing on [its] authorization." He also testified ATF agents had learned from Cooper's phone records in December 2014 that Ruelas's cell phone number belonged to Cooper's source of methamphetamine. Brandt stated the pen register trap and trace warrant was obtained with that information, and ATF had known Ruelas's cell phone number "before any Sting Ray was used and provided . . . any information." Of course, assessing the credibility and accuracy of the testimony was within the trial court's purview. See State v. Hoskins, 199 Ariz. 127, ¶ 97 (2000) ("The trial judge is in the best position to evaluate credibility and accuracy, as well as draw inferences, weigh, and balance."), quoting State v. Bible, 175 Ariz. 549, 609 (1993).

¶13 The essence of Ruelas's motion below and argument on appeal is that he was entitled to interview the two ATF operators of the Stingray because their testimony could have differed from Agent Brandt's. As we have previously observed, however, a defendant is not entitled to disclosure under Rule 15.1(g) "merely in hope that something will turn up." State v. Bernini, 222 Ariz. 607, ¶ 14 (App. 2009), quoting State v. Fields, 196 Ariz. 580, ¶ 7 (App. 1999). And in State v. Cano, this court determined that the defendant was not entitled to examine a police officer's personnel record hoping to find evidence of the officer's dishonesty, noting that "the request for information bearing upon the truthfulness of the officer appears to have been an unfavored 'fishing expedition.'" 154 Ariz. 447, 449-50 (App. 1987), quoting State v. Kevil, 111 Ariz. 240, 242 (1974).

¶14 Ruelas introduced no evidence calling into question, or suggesting any inaccuracy in, Agent Brandt's testimony as to how the Stingray was used. Although Ruelas refers to the absence of references to the Stingray in the warrant affidavits as "curious," their absence is consistent with Brandt's testimony that the device did not lead to the discovery of any evidence in the case, as well as the fact that the initial pen register trap and trace warrant was obtained before the first occasion on which Brandt said the Stingray had been used. As for Ruelas's suggestion that Brandt did not have first-hand knowledge of which device, the pen register or the Stingray, the ATF employees were using to inform him about Ruelas's location that day, Brandt explained at the evidentiary hearing that "[t]hey were telling [him] the location of cell towers that this phone was connecting with," a function of pen registers and not Stingray devices.

¶15 Additionally, the trial court did not err in denying Ruelas's motion to compel disclosure under Rule 15.1(b)(4) and (e)(1)(C). The two ATF employees were not experts within the meaning of Rule 15.1(b)(4) and (e)(1)(C) because the state did not intend to call them as witnesses at trial, nor did they examine Ruelas or meaningfully "examine[]" "any evidence in the case." Accord State v. Spain, 27 Ariz. App. 752, 755 (1976) (Rule 15.1(b)(4) "is directed at expert testimony and is designed to give the defendant an opportunity to check the validity of the conclusions of an expert witness . . . or to have the evidence examined by his own independent expert witness."). Moreover, nothing in the record suggests they had relevant evidence to offer.

¶16 Furthermore, the state's response to the motion to compel averred there were "no reports from either of the[] technicians" who operated the Stingray device as their role was limited to "operat[ing] the technology," and thus there was nothing to disclose under Rule 15.1(b)(3). But even assuming the Stingray generated reports of some kind, Ruelas's claim to them rested on "the purest speculation," as discussed above, that they might undermine Agent Brandt's testimony of how the device was used. State v. Hatton, 116 Ariz. 142, 150 (1977) ("[M]ere conjecture without more that certain information might be useful as exculpatory evidence is not sufficient to reverse a trial court's denial of a request for disclosure."). Accordingly, we see no error in the trial court's denial of Ruelas's motion to compel disclosure.

On appeal, Ruelas also cites Rule 15.3(a)(2), which permits a court to order a deposition if the defendant "shows that the person's testimony is . . . necessary to adequately prepare a defense." Ruelas did not raise Rule 15.3 below and acknowledges that it is discretionary with the trial court. In any event, we conclude Rule 15.3 did not entitle Ruelas to depose the two ATF employees for the reasons already discussed. --------

Motion for New Trial

¶17 Ruelas next argues the trial court "denied the motion for new trial in error as the court improperly vouched for the state's witness in its ruling denying the motion." Below, Ruelas asserted as the sole basis for his motion that the court had "erred as a matter of law when it denied [his] request for additional discovery" regarding the Stingray.

¶18 In ruling on Ruelas's motion, the court observed that it was "based entirely on speculation" and required a finding either that the ATF employees had "misrepresent[ed] their actions" to Agent Brandt during the investigation or that Brandt had "misrepresent[ed] those actions to the Court," "neither [of which] appear[ed] likely." The court also expressly noted, "In light of Special Agent Brandt's candid testimony, the original request amounted to a fishing expedition." Ruelas now characterizes the trial court's statements as improper "vouching for Special Agent Brandt's credibility." In support, he cites State v. Vincent, in which the prosecutor impermissibly vouched for the credibility of a witness testifying before the jury. 159 Ariz. 418, 422-24 (1989).

¶19 As the state points out, to vouch for a witness is "to comment favorably on the credibility of one or more witnesses based on the lawyer's personal knowledge" in the context "[o]f a lawyer before a jury." Vouch, Black's Law Dictionary (10th ed. 2014). Moreover, a trial court ruling on a motion for new trial "may weigh the evidence[ and] make credibility determinations" and "should assess the strength of the evidence, considering the credibility of the witnesses." State v. Fischer, 242 Ariz. 44, ¶¶ 21, 24 (2017). Thus, it was entirely proper for the court to consider Agent Brandt's credibility in ruling on Ruelas's motion for new trial, and the court committed no error in denying it.

Disposition

¶20 For the foregoing reasons, Ruelas's convictions and sentences are affirmed, with the exception of his sentence for possession of heroin, which is vacated and remanded to the trial court for resentencing.


Summaries of

State v. Ruelas

ARIZONA COURT OF APPEALS DIVISION TWO
May 30, 2018
No. 2 CA-CR 2016-0344 (Ariz. Ct. App. May. 30, 2018)
Case details for

State v. Ruelas

Case Details

Full title:THE STATE OF ARIZONA, Appellee, v. THADDAEUS SANCHEZ RUELAS, Appellant.

Court:ARIZONA COURT OF APPEALS DIVISION TWO

Date published: May 30, 2018

Citations

No. 2 CA-CR 2016-0344 (Ariz. Ct. App. May. 30, 2018)

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