STATE OF ARIZONA, ex rel. MARK BRNOVICH, Attorney General, Plaintiffs/Appellees,
WILLIAM EARL MILLER, SR., Defendant/Appellant.
from the Superior Court in Maricopa County No. CV2015-006886
The Honorable Christopher T. Whitten, Judge
Arizona Attorney General's Office, Phoenix By Eric S.
Rothblum, Kenneth R. Hughes Counsel for Plaintiffs/Appellees
William Earl Miller, Sr., Phoenix Defendant/Appellant
Presiding Judge Lawrence F. Winthrop delivered the opinion of
the Court, in which Judge Jennifer B. Campbell and Judge Paul
J. McMurdie joined.
WINTHROP, PRESIDING JUDGE:
William Earl Miller, Sr., appeals the in personam
judgment entered against him for $482, 400 and the forfeiture
of $40, 218.33 in seized property to the State of Arizona. In
this opinion, we hold that, unlike a search warrant, which
must be executed within five days pursuant to Arizona Revised
Statutes ("A.R.S.") section 13-3918(A), a seizure
warrant is not subject to the same statutory five-day
requirement. Accordingly, and because Miller's other
challenges to the judgment are unavailing, we affirm.
AND PROCEDURAL HISTORY
On April 17, 2015, the State obtained a seizure warrant
authorizing in rem and in personam seizure
of property from Miller. The seizure warrant was based on a
judicial finding of probable cause that Miller engaged in
racketeering activity. Under the authority of the seizure
warrant, the State seized $28, 000 from a safe deposit box
leased to Miller, as well as $12, 218.33 from Miller's
bank and prison inmate trust accounts.
The State initiated forfeiture proceedings, and the case
proceeded to a bench trial. The trial court found by a
preponderance of the evidence that Miller "possessed,
solicited to possess, attempted to possess, conspired to
possess, conspired and participated in the transfer and sale
of, and conspired and participated in the transaction of
proceeds of the sale of prohibited drugs" in violation
of A.R.S. §§ 13-2312, -3408, and -2317 for
financial gain. Thus, the court forfeited the seized money to
the State, and also entered an in personam
racketeering judgment against Miller in the amount of $482,
Miller timely appealed. We have jurisdiction pursuant to
A.R.S. § 12-2101(A)(1).
Although his argument is unclear, Miller appears to argue in
his opening brief that the judgment does not contain a
probable cause determination pursuant to A.R.S. §
13-4305(E). In violation of Arizona Rule of Civil Appellate
Procedure ("ARCAP") 13(d), Miller failed to refer
to the record where he raised this argument for the trial
court's consideration. Our independent review of the record
confirms the issue was not raised below. "Matters not
presented to the trial court cannot for the first time be
raised on appeal." Brown Wholesale Elec. Co. v.
Safeco Ins. Co. of Am., 135 Ariz. 154, 158 (App. 1982).
Thus, the argument that the trial court needed to make a
probable cause determination in the judgment is waived.
See Regal Homes, Inc. v. CNA Ins., 217 Ariz. 159,
171, ¶ 52 (App. 2007) (holding the appellate court will
not consider a question not raised in the lower court (citing
J.H. Mulrein Plumbing Supply Co. v. Walsh, 26 Ariz.
152, 161 (1924); Allstate Indem. Co. v. Ridgely, 214
Ariz. 440, 442, ¶ 7 (App. 2007))). Moreover, even
assuming Miller made the probable cause argument and thus
preserved the issue for appeal, he fails to recognize that a
judicial determination of probable cause was made before
issuance of the seizure warrant.
Miller next contends seizures of funds from his inmate trust
account on July 22, 2016, and January 30, 2017-both of which
occurred more than five days after issuance of the seizure
warrant-violated A.R.S. § 13-3918, which, he argues,
rendered the seizure warrant expired and void. "We apply a
de novo standard of review to issues of statutory
interpretation and application." Obregon v. Indus.
Comm'n, 217 Ariz. 612, 614, ¶ 9 (App. 2008)
(citing Naslund v. Indus. Comm'n, 210 Ariz. 262,
264, ¶ 8 (App. 2005); O'Connor v. Hyatt,
207 Ariz. 409, 411, ¶ 4 (App. 2004)).
Section 13-3918(A) states that "[a] search
warrant shall be executed within five calendar days from its
issuance . . . . Upon expiration of the five[-]day period,
the warrant is void unless the time is extended by a
magistrate." (Emphasis added.) Section 13-3918
specifically refers to search warrants. In this case, the
warrant at issue is a seizure warrant, making the
five-day time limit under A.R.S. § 13-3918 inapplicable.
Miller did not cite, and we have not found, any statute or
other authority that requires a seizure warrant to be
executed within five days of its issuance. Cf.
A.R.S. §§ 13-2314(C), -4310(A), ...