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State v. Reyes

Court of Appeals of Arizona, First Division

October 1, 2015

STATE OF ARIZONA, Appellant,
v.
JUSTIN REYES, Appellee

Page 101

Appeal from the Superior Court in Navajo County. No. S0900CR201200404. The Honorable Gloria J. Kindig, Retired Judge.

For Appellant: Neill Perry, Navajo County Attorney's Office, Holbrook.

For Appellee: Paul J. Gattone, Law Office of Paul Gattone, Tucson.

Judge Peter B. Swann delivered the opinion of the court, in which Presiding Judge Andrew W. Gould and Judge Patricia A. Orozco joined.

OPINION

Page 102

Peter B. Swann, Judge.

[¶1] The state appeals from the trial court's order granting Justin Reyes's motion to suppress text messages obtained from a communication service provider. We hold that A.R.S. § 13-3016 does not require the state to notify a party when it obtains electronic communications pursuant to a search warrant. We therefore reverse the trial court's order granting Reyes's motion to suppress.

FACTS AND PROCEDURAL HISTORY

[¶2] Reyes was charged with one count of burglary, four counts of aggravated assault, two counts of assault, one count of disorderly conduct, and one count of criminal damage. The state alleges that a few days after the crimes, an assault-victim's wife told police that Reyes was a friend and that he had confessed to her in a series of text messages that he was part of the attacks. She identified Reyes's phone number and her own but told police that she had deleted the messages from her phone. Based on the victim's wife's statement, the police obtained a search warrant to retrieve the text messages from the communication service provider, and the provider complied. The provider's records also showed that the phone number was registered to Reyes's mother, who allegedly let Reyes use the phone. However, the phone itself was never recovered.

[¶3] Under Ariz. R. Crim. P. 15.1, the state disclosed that it intended to use the phone records as exhibits at trial. The state also filed two motions in limine. First, the state requested a pretrial ruling that the text messages were admissible as business records under Ariz. R. Evid. 803(6). Next, the state requested that the court permit the state to introduce evidence of Reyes's criminal history to establish his identity as the author of the text messages under Ariz. R. Evid. 404(b). The court denied the motions, finding that the text messages were not admissible as self-authenticating business records under Rule 803(6) and that Rule 404(b) evidence was not admissible to establish the identity of the author of the text messages.

[¶4] Reyes filed a motion to suppress the text messages, arguing that the state did not provide the subscriber (his mother) with proper notice that it had received the text messages under A.R.S. § 13-3016(G). The trial court granted the motion, finding that because the state " failed to provide notice as required by ARS 13-3016(G), and also failed to comply with other provisions of ARS 13-3016[,] . . . the appropriate remedy in this case is suppression."

[¶5] The state moved to dismiss the case without prejudice and the court granted the motion. The state appeals from the trial court's order granting Reyes's motion to suppress and from the order denying the state's motions in limine.[1]

JURISDICTION AND STANDARD OF REVIEW

[¶6] " Our jurisdiction is prescribed by statute and we have no authority to entertain an appeal over which we do not have jurisdiction." State v. Limon, 229 Ariz. 22, 23, ¶ 3, 270 P.3d 849 (App. 2011). A.R.S. § 13-4032(6) provides that the state may appeal from " [a]n order granting a motion ...


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