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State ex rel. Brnovich v. Miller

Court of Appeals of Arizona, First Division

August 16, 2018

STATE OF ARIZONA, ex rel. MARK BRNOVICH, Attorney General, Plaintiffs/Appellees,
v.
WILLIAM EARL MILLER, SR., Defendant/Appellant.

          Appeal 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.

          OPINION

          WINTHROP, PRESIDING JUDGE:

         ¶1 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.

         FACTS AND PROCEDURAL HISTORY

         ¶2 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.

         ¶3 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, 400.

         ¶4 Miller timely appealed. We have jurisdiction pursuant to A.R.S. § 12-2101(A)(1).

         ANALYSIS

         ¶5 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.[1] 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.[2]

         ¶6 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.[3] "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)).

         ¶7 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. ยงยง 13-2314(C), -4310(A), ...


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