State v. Osgood

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellant,

v.

ETHAN FOGG OSGOOD, Appellee

No. 1 CA-CR 20-0148
FILED 05-13-2021

Appeal from the Superior Court in Yavapai County
No. P1300CR201700035
The Honorable John David Napper, Judge

VACATED AND REMANDED

COUNSEL

Yavapai County Attorney’s Office, Prescott
By Michael P. McGill
Counsel for Appellant

Kimerer Law Group, P.C., Phoenix
By Rhona Elaine Neff & Michael D. Kimerer
Counsel for Appellee

C. Kenneth Ray II, P.L.L.C., Prescott
By C. Kenneth Ray
Counsel for Appellee
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Decision of the Court

MEMORANDUM DECISION

Presiding Judge Paul J. McMurdie delivered the Court’s decision, in which
Vice Chief Judge Kent E. Cattani and Judge Lawrence F. Winthrop joined.

M c M U R D I E, Judge:

¶1 The State appeals from a superior court order granting Ethan
Fogg Osgood a new trial. For the following reasons, we vacate the order
granting a new trial and remand for further proceedings.

FACTS AND PROCEDURAL BACKGROUND

¶2 Over the summer and fall of 2016, the Prescott Police
Department received several reports from the National Center for Missing
and Exploited Children (“NCMEC”) of possible child pornography related
to a specific IP address serviced by Cable One, an internet service provider.
Police Detective Jeremy Brazell obtained two grand jury subpoenas for
subscriber information related to the IP address from Cable One. Cable One
complied with the subpoenas and provided records revealing the home
address associated with the IP address and the account holder’s name. The
documents also revealed that Osgood was an authorized user on the
account. During the same period, Brazell also took the images within the
NCMEC reports to an expert, who opined that at least two of the pictures
were of children under 15. Based on this information and other
investigative efforts, Brazell obtained a search warrant for the home,
Osgood’s vehicle, and several electronic devices and their contents.
However, Brazell did not get a warrant for Osgood’s arrest.

¶3 On January 4, 2017, Detective Brazell executed the search
warrant. Despite lacking an arrest warrant, Brazell arrested Osgood, had
him transported to the police station, and placed him in a locked interview
room. During a subsequent interview, Osgood made incriminating
statements. A grand jury indicted Osgood for 18 charges, including: (1) 12
counts of sexual exploitation of a minor, a class 2 felony, based on the two
images contained in the NCMEC reports (Counts 1 and 2) and other images
recovered from Osgood’s electronic devices (Counts 3 through 12); (2) one
count of production of marijuana, a class 5 felony (Count 13); (3) one count
of possession of marijuana, a class 6 felony (Count 14); (4) three counts of
possession of drug paraphernalia, a class 6 felony (Counts 15 through 17);

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Decision of the Court

and (5) one count of misconduct involving weapons, a class 4 felony (Count
18). The State alleged each count of sexual exploitation was a dangerous
offense under A.R.S. § 13-705. Upon the State’s request, the court later
dismissed Counts 1, 2, and 13 through 18.

¶4 Before the trial, Osgood moved to suppress the evidence
gathered under the search warrant and the interview following his arrest
under the Fourth Amendment of the United States Constitution and Article
2, Section 8 of the Arizona Constitution. Osgood also argued the court
should suppress the evidence because the State failed to comply with the
statutory requirements governing the grand jury subpoenas used to acquire
information from Cable One. See A.R.S. § 13-4071(C). In July 2018, the court
held an evidentiary hearing on the motions. During the hearing, Detective
Brazell testified concerning the subpoenas and his investigation of Osgood.
Regarding Osgood’s arrest, Brazell testified he did not believe probable
cause existed to arrest Osgood when he detained and transported him to
the police department.

¶5 At the end of the hearing, the superior court denied the
motions. Concerning the motion to suppress Osgood’s statements, the court
found the evidence gathered under the subpoenas, which linked Osgood to
the IP address associated with the child pornography, established probable
cause to arrest Osgood despite Brazell’s subjective belief.

¶6 In May 2019, Osgood waived his right to a jury trial, and the
parties presented evidence and argument to the court. While the court was
deliberating, this court published its opinion in State v. Mixton (“Mixton I”),
247 Ariz. 212, 220–27, ¶¶ 14–33 (App. 2019), vacated, 250 Ariz. 282 (2021),
holding that the IP address and subscriber information obtained by the
State without a search warrant violated Article 2, Section 8 of the Arizona
Constitution—also known as the “private affairs” clause.

¶7 Six days after Mixton I was published, the superior court
announced its verdicts in Osgood’s case. The court acquitted Osgood for
Counts 3 through 6 but found Osgood guilty of the six remaining charges
and found they were dangerous crimes against children. Osgood filed a
timely motion for a new trial before sentencing, arguing, inter alia, that the
change of law caused by Mixton I required the court to reconsider its earlier
rulings on the motions to suppress. In response, the court requested
supplemental briefing to address Mixton I’s impact on its rulings on the
State’s compliance with the grand-jury-subpoena statute and the motions
to suppress.

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¶8 After the briefing, the court issued its ruling in February 2020.
Applying Mixton I, the court found the subscriber information obtained by
the State under the subpoenas violated Article 2, Section 8 of the Arizona
Constitution. Following the procedure outlined in State v. Gulbrandson, 184
Ariz. 46, 58 (1995), the court excised the subpoenaed information and found
that no probable cause remained to support Osgood’s warrantless arrest.
The court also found that the good-faith exception to the exclusionary rule
did not apply to excuse the arrest. As a result, the court concluded Osgood’s
statements were acquired due to an illegal arrest and suppressed them.
Finally, the court found the introduction of Osgood’s statements at the trial
was not harmless error because it had given them substantial weight in
reaching its verdicts. Based on these findings and conclusions, the court
granted the motion for a new trial.

¶9 The State appealed the order, and we have jurisdiction under
A.R.S. §§ 13-4031 and -4032(2). After briefing was completed in this appeal,
our supreme court issued an opinion vacating Mixton I and holding that
neither the Fourth Amendment nor Article 2, Section 8 of the Arizona
Constitution protected an IP address or subscriber information voluntarily
provided to internet service providers and lawfully obtained by the State.
State v. Mixton (“Mixton II”), 250 Ariz. 282, 286–300, ¶¶ 12–77 (2021).

DISCUSSION

¶10 We review the superior court’s decision to grant a new trial
for an abuse of discretion, State v. Fischer, 242 Ariz. 44, 48, ¶ 10 (2017), but
review constitutional questions de novo, State v. Huerta, 223 Ariz. 424, 426,
¶ 4 (App. 2010). An abuse of discretion occurs when the court errs in
applying the law. State v. Bernstein, 237 Ariz. 226, 228, ¶ 9 (2015). A court
may grant a new trial if it “erred in deciding a matter of law.” Ariz. R. Crim.
P. 24.1(c)(4).

¶11 As stated above, the sole basis for the superior court’s
decision to grant Osgood a new trial was Mixton I’s holding that the
warrantless acquisition of an IP address and subscriber information
violated Article 2, Section 8 of the Arizona Constitution. Without that
holding, the court had no reason to revisit its prior ruling that Osgood’s
statements were obtained after a lawful arrest supported by probable cause.
In Mixton II, our supreme court specifically rejected Mixton I on this point,
concluding instead that:

[N]either the Fourth Amendment to the United States
Constitution nor article 2, section 8 of the Arizona

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Constitution requires law enforcement officials to secure a
search warrant or court order to obtain IP addresses or
subscriber information voluntarily provided to
[internet-service providers] as a condition or attribute of
service.

250 Ariz. at 299, ¶ 75. Therefore, although correct at the time the superior
court issued its order, Mixton II has undermined the court’s rationale for
granting a new trial, and the order no longer aligns with Arizona law.

¶12 In a supplemental filing addressing Mixton II, Osgood asserts
the State waived any argument that the superior court erred by finding that
the statements should have been suppressed by not challenging those
findings on appeal. We reject this argument for two reasons. First, because
we apply the law prevailing at the time of our decision, Osgood cannot
continue to claim the benefit of Mixton I. See State v. LeMaster, 137 Ariz. 159,
168 (App. 1983) (articulating general rule that “when there is a change of
law by judicial decision between the time of trial and the time of appeal the
appellate court will apply the law prevailing at the time of the appellate
disposition”). Second, even if we were to find that issues related to the
court’s suppression findings were waived, “[w]e have discretion to address
a significant, albeit waived, issue.” State v. Kinney, 225 Ariz. 550, 554, ¶ 7,
n.2 (App. 2010); see also State v. Payne, 223 Ariz. 555, 569, ¶ 47, n.8 (App.
2009) (“If application of a legal principle, even if not raised below, would
dispose of an action on appeal and correctly explain the law, it is
appropriate for us to consider the issue.”) (quoting Evenstad v. State, 178
Ariz. 578, 582 (App. 1993)).

¶13 Accordingly, we vacate the superior court’s order granting
the motion for a new trial, reinstate Osgood’s convictions, and remand for
the court to conduct any further proceedings required by law or that it
deems necessary in the exercise of its discretion.1

1 We offer no opinion on the merits of any arguments addressing
matters beyond the narrow ground upon which we vacate the order for a
new trial. Such issues may be raised with the superior court on remand in
accordance with the Arizona Rules of Criminal Procedure or on direct
appeal following sentencing.

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CONCLUSION

¶14 We vacate the superior court’s order granting a new trial and
remand for further proceedings consistent with this decision.

AMY M. WOOD • Clerk of the Court
FILED: HB

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