State v. Brown

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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, Appellee,

v.

DUSTIN KEITH BROWN, Appellant.

No. 1 CA-CR 25-0420
FILED 08-14-2026

Appeal from the Superior Court in Yavapai County
No. S1300CR202300180
The Honorable Debra R. Phelan, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Evan Jacob Ridley
Counsel for Appellee

Zickerman Law Office, Flagstaff
By Adam Zickerman
Counsel for Appellant

STATE v. BROWN
Decision of the Court

MEMORANDUM DECISION

Judge D. Andrew Gaona delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge Brian Y. Furuya joined.

G A O N A, Judge:

¶1 Dustin Keith Brown appeals his conviction and sentence for
misconduct involving weapons. He argues the rifle and firearm accessories
seized during the execution of a search warrant at his home were
unlawfully obtained and thus improperly used at trial. Because Brown
makes these arguments for the first time on appeal, and neither the parties
nor the superior court developed the record with these arguments in mind,
we deem them waived and affirm.

FACTS AND PROCEDURAL HISTORY

¶2 We view the facts “in the light most favorable to upholding
the jury’s verdicts, resolving all reasonable inferences against the
defendant.” State v. Duncan, 257 Ariz. 360, 366 ¶ 2 (App. 2024).

¶3 In 2023, officers from the Yavapai County Sheriff’s Office
investigated Brown for harassment and stalking. During their
investigation, officers obtained a search warrant to search Brown’s home
for evidence of those crimes. Officers knew Brown had a prior felony
conviction, and believed Brown hadn’t yet restored his right to possess
firearms when they requested the warrant. While executing the search
warrant, officers seized a black powder rifle, ammunition, gun oil, a red
funnel, ball ammo, ear protection, targets, ammunition reloading tools,
black powder, ammunition boxes, and part of a revolver.

¶4 The State charged Brown with misconduct involving
weapons for possessing a firearm as a prohibited possessor under A.R.S.
§ 13-3102(A)(4), a class 4 felony. See A.R.S. § 13-3102(M).

¶5 Brown later moved to suppress, among other items, the rifle
and “miscellaneous ammunition and gun parts” (“the evidence”) seized
during the search warrant’s execution. Brown’s motion to suppress
challenged the warrant itself, arguing it was overbroad, lacked particularity
and specificity as to the location and items to be searched, and authorized
seizure of items unrelated to the suspected offenses. The motion didn’t

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STATE v. BROWN
Decision of the Court

challenge anything related to the warrant’s execution. At a status
conference a month later, and without a response to the motion to suppress
from the State, the superior court summarily denied the motion without
holding an evidentiary hearing.

¶6 At trial, the State presented (for demonstrative purposes) the
rifle and introduced pictures of the rifle and firearm accessories to the jury.
Brown didn’t object to the rifle’s presentation or the pictures’ admission
into evidence.

¶7 After a two-day trial, the jury found Brown guilty of
misconduct with weapons. The superior court, after the jury found
aggravating circumstances, sentenced Brown (as a category 3, non-
dangerous, repetitive offender) to 8 years’ imprisonment with credit for 942
days served.

¶8 Brown appealed and we have jurisdiction under Article 6,
Section 9 of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031,
-4033(A).

DISCUSSION

¶9 Brown doesn’t challenge the superior court’s denial of his
motion to suppress or its decision not to hold an evidentiary hearing.
Instead, he argues officers unlawfully obtained the rifle and firearm
accessories and that their use at trial was thus improper. Although Brown
moved to suppress the evidence before trial, he challenged only the validity
of the warrant itself. He argued the warrant was overbroad, lacked
particularity, and authorized the seizure of evidence unrelated to the
offenses under investigation. On appeal, Brown challenges only the
warrant’s execution, arguing officers unlawfully executed it by exceeding its
scope, seizing evidence outside its authorization, and failing to obtain
another warrant before seizing the evidence. He also contends the State
cannot rely on the plain-view doctrine or other exceptions to the warrant
requirement to remedy these problems.

¶10 The State says Brown waived all these arguments by failing
to make them below. We agree.

¶11 Generally, “[i]ssues concerning the suppression of evidence
which were not raised in the trial court are waived on appeal.” State v. Tison, 129 Ariz. 526, 535 (1981). That rule applies here. On appeal, Brown
challenges the officers’ execution of the warrant, but he never presented
those arguments to the superior court.

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STATE v. BROWN
Decision of the Court

¶12 That omission matters because Brown never made the
warrant’s execution an issue in his suppression motion, during pre-trial
proceedings, or at trial. He never alleged officers unlawfully executed the
warrant and thus unlawfully seized the evidence. As a result, Arizona Rule
of Criminal Procedure 16.2 never required the State to prove those aspects
of the search were lawful before trial. Ariz. R. Crim. P. 16.2(b) (the State must
prove evidence was lawfully obtained under a search warrant only after a
defendant alleges “specific circumstances and establishes a prima facie case
supporting the suppression of the evidence at issue”); see also State v. Hyde, 186 Ariz. 252, 265–68 (1996). Because Brown didn’t make these arguments,
the State didn’t have to prove the legality of the evidence’s seizure, and the
superior court had no opportunity to decide the issue.

¶13 Waiver here isn’t a mere technicality. Suppression litigation
proceeds issue by issue and is inherently fact specific. See Ariz. R. Crim. P.
16.1(c) (“court may preclude any motion, defense, objection, or request not
timely raised” before trial) (emphasis added); Ariz. R. Crim. P. 16.2(b)(2)
(defendant must allege “specific circumstances”) (emphasis added). And
courts resolve only the claims the parties litigate on the record they create.
State v. Lietzau, 248 Ariz. 576, 579 ¶ 8 (2020) (in reviewing a motion to
suppress “we consider only the evidence presented at the suppression
hearing”); State v. Rios, 255 Ariz. 124, 128 ¶ 9 (App. 2023) (where there is no
evidentiary hearing, we consider only the parties’ motions relating to
suppression). Had Brown challenged the warrant’s execution, the State
could’ve introduced evidence addressing those arguments and the superior
court could’ve resolved any resulting factual disputes. But Brown didn’t
challenge the warrant’s execution, and those steps never occurred.

¶14 The resulting record doesn’t allow us to resolve Brown’s new
arguments. “It is particularly inappropriate to consider an issue for the first
time on appeal where the issue is a fact-intensive one.” State v. Brita, 158
Ariz. 121, 124 (1988). This case illustrates why. Brown’s arguments require
answers to questions the parties never litigated and the superior court
never resolved. How did officers come to encounter the rifle and firearm
accessories? Were they in plain view? If so, was their incriminating nature
immediately apparent? Did the circumstances permit officers to seize the
items without obtaining another warrant? Because Brown never presented
those issues below, neither the parties nor the superior court developed the
record needed to resolve them.

¶15 We thus decline “to resolve [those] issues for the first time on
appeal, particularly when the record below was made with no thought in
mind of the legal issue[s] to be decided.” Brita, 158 Ariz. at 124. Doing so

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STATE v. BROWN
Decision of the Court

would require us to speculate about factual questions the parties didn’t
litigate, and the superior court didn’t decide.

CONCLUSION

¶16 We affirm.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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