Lane Draper v. Hon. gentry/state/nez

IN THE

SUPREME COURT OF THE STATE OF ARIZONA
____________________________________________

LANE DRAPER,
Petitioner,
v.
THE HONORABLE JO LYNN GENTRY, JUDGE OF THE SUPERIOR COURT OF THE
STATE OF ARIZONA, IN AND FOR THE COUNTY OF MARICOPA,
Respondent Judge,

STATE OF ARIZONA, ET AL.
Real Parties in Interest.
______________________________________________

No. CR-22-0175-PR
Filed July 31, 2023
______________________________________________

Appeal from the Superior Court in Maricopa County
No. CR2020-127377-001
The Honorable Jo Lynn Gentry, Judge
VACATED AND REMANDED
_________________

Order of the Court of Appeals, Division One
1 CA SA-22-0096
Filed June 14, 2022
VACATED
_________________
 DRAPER V. HON. GENTRY/STATE/NEZ
Opinion of the Court

COUNSEL:

Colleen Clase, Jessica Gattuso (argued), Arizona Voice for Crime Victims,
Phoenix, Attorneys for Lane Draper

Daniel Fenzel (argued), Grace M. Guisewite, Jessica Valdivia-Luna, Deputy
Legal Advocates, Office of the Legal Advocate, Phoenix, Attorneys for
Jordon Lee Nez

Randall S. Udelman, Arizona Crime Victim Rights Law Group, Scottsdale,
Attorney for Amici Curiae National Crime Victim Law Institute and
Arizona Crime Victim Rights Group

Rachell Mitchell, Maricopa County Attorney, Daniel Strange, Deputy
County Attorney, Phoenix, Attorneys for Amicus Curiae Maricopa County
Attorney’s Office

Jana L. Sutton, Bernardo M. Velasco (argued), Mesch Clark Rothschild,
Tucson, Attorneys for Amicus Curiae Attorneys for Criminal Justice

____________________

The Court issued a per curiam decision joined by CHIEF JUSTICE
BRUTINEL, and JUSTICES LOPEZ, BEENE, MONTGOMERY and KING.
JUSTICE BOLICK, joined by VICE CHIEF JUSTICE TIMMER, authored a
dissenting opinion.

____________________

PER CURIAM:

¶1 In this case, we establish the standard a defendant must
satisfy to compel extraction of GPS data by the defendant’s third-party
agent from a crime victim’s automobile for in camera inspection by the trial
court. In doing so, we seek to preserve the defendant’s constitutional right
to present a complete defense in light of the crime victim’s rights under the

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Opinion of the Court

Victims’ Bill of Rights, Fourth Amendment, and the privacy protection of
article 2, section 8 of the Arizona Constitution.

BACKGROUND

¶2 Grant Draper (“Grant”) was murdered in the early morning
of July 16, 2020. Prior to his death, Grant was drinking with his brother
Lane Draper (“Draper”), Defendant Jordon Nez, and a fourth man, Roessel
Jackson. The men had plans to drink and stay the night at Nez’s apartment
before heading to work together the next morning. As the night progressed,
Grant apparently became emotional and had negative interactions with
both Draper and Nez. The rest of the night’s events are not entirely clear
because they derive from contradictory accounts of the three surviving
men, all of whom were inebriated. But at some point during the night,
Grant was murdered with a knife that was never recovered.

¶3 Nez claims he blacked out from alcohol consumption and
does not remember anything from the night until waking up the following
morning. When he left his room, he says he found Grant’s body
surrounded by large amounts of blood, panicked, and began cleaning it up.
When police later asked if something could have happened the night
before, he told them he might have done “something” to Grant.

¶4 Draper claims to have left the apartment around 2:00 a.m. and
to have awakened in his truck the next morning at an unknown location.
He also claims that upon waking, he typed Nez’s address into his truck’s
GPS and headed back toward the apartment. When Draper arrived, he
claims Nez came outside and told him not to call the police. He then
followed Nez into the apartment, where he saw a body he believed to be
Jackson’s. He claims he did not realize the body was Grant’s until the police
told him they had found Jackson at work.

¶5 Jackson says he left the apartment between 3:00 and 4:00 a.m.
to try and find Draper; however, after no success, he came back to the
apartment approximately thirty or forty-five minutes later. Jackson claims
that when he returned, Nez met him outside, told him that Grant was dead,
and threatened his life if he told anyone. After this supposed interaction,

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Opinion of the Court

Jackson left. He was recorded on a surveillance video at a gas station at
4:31 a.m. and reported to work at 6:15 a.m.

¶6 A few other facts are relevant. First, at 6:13 a.m. another
tenant in Nez’s apartment complex called 911 to report a truck blocking his
parking space. The driver and the truck’s description matched that of
Draper and his truck. The caller said the driver was passed out and only
woke up after the caller pounded on the truck’s hood for several minutes,
after which the driver sped away. Second, Nez’s neighbors reported
hearing a loud noise, like that of a door slamming, from Nez’s apartment
around 6:00 a.m. Finally, in addition to obtaining a warrant for Nez’s
apartment, the police obtained a warrant for Draper’s truck and any GPS
devices in it. They did not seize any GPS data from the vehicle but did
recover a knife.

¶7 On July 22, 2020, Nez was charged with the second degree
murder of Grant Draper. Because Grant was murdered, his brother Lane
Draper is a victim by virtue of A.R.S. § 13-4401(19), a statute that
implements article 2, section 2.1 of the Arizona Constitution, known as the
Victims’ Bill of Rights (“VBR”).

¶8 To help in plea negotiations, and without notice to Draper,
Nez obtained a court order to access GPS data for the location of Draper’s
truck between 11:59 p.m. on July 15, 2020 until 9:30 a.m. on July 16, 2020
from third parties, Onstar Corporation and Berla. This effort was
unsuccessful, however, because the sought-after data was only physically
present in the truck and was not otherwise accessible by Onstar and Berla.
Nez then moved the court to order Draper to preserve and produce the GPS
data. Additionally, Nez asked the court to order the Phoenix Police
Department (“PPD”) to extract the data from the vehicle. The State and
Draper opposed the motion. Draper argued that turning his truck over to
the police violated his constitutional right to refuse discovery under the
VBR and his federal and state constitutional rights against unreasonable
search and seizure. The State similarly contended that ordering Draper to
surrender his vehicle for the GPS data extraction would be an unreasonable
search and seizure under the Fourth Amendment because there was no
probable cause and the PPD lacked the capacity to download the data. The
court denied Nez’s motion because it would deprive Draper of his truck for

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Opinion of the Court

an extended period, and other options might be available for Nez to extract
the data.

¶9 Nez then filed notice of a third-party defense where he listed
Draper and Jackson as potentially culpable third parties. Nez filed a new
motion to compel evidence, advising the court that he had found a
company that could extract the data from Draper’s truck. The data
extraction would be limited to two hours, take place wherever Draper’s
truck was located, and generate a report with the requested data. Draper
again opposed the motion on the basis that it violated his state and federal
constitutional rights.

¶10 Using the same standard this Court applied in R.S. v.
Thompson (Vanders II), 251 Ariz. 111 (2021), the trial court rejected the
request for direct disclosure of the GPS data but allowed the data to be
extracted for in camera review. Under this standard, the court concluded
that Nez had shown constitutional entitlement to the data in order to
present a complete defense by showing a reasonable possibility that the
information would be material to his defense or necessary to cross-examine
a witness. However, the court limited Nez’s request to include only data
between 2:15 a.m. to 8:40 a.m. on the day of the murder. The court further
found that in camera review would appropriately balance Draper’s rights
as a statutory victim with Nez’s rights as a criminal defendant.

¶11 Draper filed a motion to clarify in which he informed the
court that the truck was not running and was parked at his residence, and
requested that his address be subject to a protective order and that only a
representative from the extraction company be present, not Nez or his
counsel. In response, the court clarified that Nez’s counsel could be present.
As the truck is inoperable, it would either need to be moved to a location
with a power source or be hooked up to a power source at Draper’s
residence for the extraction equipment to function. At oral argument the
court further clarified that after the extraction company pulled the data it
would be put into a sealed, “potentially signed” envelope to ensure it was
not opened and then given directly to the court. The court would then
redact the data to the designated timeframe, and if the court found anything
relevant, disclose it to Nez, Draper, and the State.

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¶12 Draper subsequently filed a petition for special action with
the court of appeals. The court accepted jurisdiction but denied relief.
Draper then timely petitioned this Court for review.

¶13 We granted review to determine whether the standard
established in Vanders II is the proper standard for a discovery request
compelling a crime victim to produce his personal vehicle to permit the
defendant’s third-party agent to search and seize his GPS data, which
presents an issue of statewide importance. Nez argues that the Vanders II
requirement that a “reasonable possibility” exists that the disclosure will
lead to material evidence should apply here. Vanders II, 251 Ariz.
at 119 ¶ 23. Draper argues that Nez must show either probable cause under
the Fourth Amendment, or that there is a “substantial probability” that the
disclosure will produce evidence material to the defense. See, e.g., id. ¶ 26.
We have jurisdiction under article 6, section 5(3) of the Arizona
Constitution.

DISCUSSION

I.

¶14 “Whether a defendant’s due process right to present a
complete defense” overcomes a victim’s right to avoid submitting to
discovery requests “is a matter of constitutional and statutory
interpretation that we review de novo.” Vanders II, 251 Ariz. at 116 ¶ 10.

¶15 This case presents a confluence of clashing constitutional
rights and principles that we seek to reconcile and harmonize. Our recent
decision in Vanders II provides our analytical starting point because it
addressed similar issues. There we held that a defendant may secure a
victim’s privileged personal information from a third party for in camera
inspection by the trial court only where the defendant establishes a
“reasonable possibility” that the information includes evidence to which
the defendant is entitled as a matter of due process. Id. at 120 ¶ 30. Here
we are asked whether the requisite showing for evidentiary disclosure from
a crime victim that we articulated in that case extends to these facts.

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¶16 As the accused, Nez has a due process right to “a meaningful
opportunity to present a complete defense.” Id. at 117 ¶ 13. Although that
does not entail a “general constitutional right to discovery,” we held in
Vanders II that “the due process right to present a complete defense is
vitiated if a defendant is prevented access at the pretrial discovery stage to
the ‘raw materials’ necessary to build his defense, rendering his trial
fundamentally unfair.” Id. ¶ 16.

¶17 Here, Nez seeks the GPS data to support his third-party
defense identifying Draper as the possible killer and for cross-examination
regarding the time Draper contends he was asleep.

¶18 Ordinarily, Arizona Rule of Criminal Procedure 15.1(g)
would provide the means by which Nez could obtain this data from third
parties. Under Rule 15.1(g), “a court may order any person” to make
material or information available to a defendant if “(A) the defendant has a
substantial need for the material or information to prepare the defendant’s
case; and (B) the defendant cannot obtain the substantial equivalent by
other means without undue hardship.” But Draper invokes multiple
constitutional rights to prevent or limit extraction of GPS data from his
truck through Nez’s agent for in camera inspection by the trial court. First,
Draper asserts disclosure violates the Fourth Amendment, which provides
in relevant part that “[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon probable
cause.” U.S. Const. amend. IV. Draper argues that the Fourth
Amendment’s “probable cause” requirement for obtaining a search
warrant, see, e.g., Carpenter v. United States, 138 S. Ct. 2206, 2213 (2018),
applies here.

¶19 The Fourth Amendment pertains only to government action.
Lugar v. Edmondson Oil Co., 457 U.S. 922, 924 (1982) (explaining that the
Fourteenth Amendment, and constitutional rights incorporated to the
states through it, only regulates state action). Despite the fact that the
extraction would be made by a private vendor, that requisite is satisfied
here. A court order constitutes state action. See, e.g., Shelly v. Kraemer, 334
U.S. 1, 19 (1948); see also Lugar, 457 U.S. at 941–42 (holding that a private

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party that seizes property pursuant to a state attachment system is a state
actor).

¶20 The data Nez seeks also falls within the Fourth Amendment’s
protection. The United States Supreme Court has recognized that
“individuals have a reasonable expectation of privacy in the whole of their
physical movements,” including GPS data. Carpenter, 138 S. Ct. at 2217;
accord State v. Jean, 243 Ariz. 331, 340 ¶ 34 (2018) (holding that even
short-term GPS monitoring is subject to the Fourth Amendment warrant
requirement).

¶21 It does not follow, however, that the probable cause
requirement applies, because here we are not dealing with a warrant, but
rather a motion for a pretrial disclosure order. Unlike an ex parte warrant,
which requires a probable cause showing, see U.S. Const. amend. IV, a
motion for disclosure puts all parties on notice and allows the party from
whom disclosure is sought to argue why the order should not be granted.
As such, even though the disclosure here falls within the Fourth
Amendment’s protection, it implicates only the guarantee against
“unreasonable” searches and seizures. State v. Boudette, 164 Ariz. 180, 184
(App. 1990) (holding that “[t]he constitutionality of a governmental
seizure . . . must be judged by balancing the nature and quality of the
intrusion on the individual’s fourth amendment interests against the
importance of the legitimate governmental interests alleged to justify the
intrusion”); In re Subpoena Duces Tecum, 228 F.3d 341, 347–48 (4th Cir. 2000)
(holding same in the context of subpoenas). The probable cause
requirement therefore does not apply to pretrial discovery if there is notice
and an opportunity to be heard. See, e.g., Okla. Press Publ’g Co. v. Walling, 327 U.S. 186, 202–09 (1946); State ex rel. A.B., 99 A.3d 782, 795 (N.J. 2014).

¶22 Draper also invokes protection against disclosure under our
state constitution’s privacy clause, Ariz. Const., art. 2, § 8, which provides,
“[n]o person shall be disturbed in his private affairs, or his home invaded,
without authority of law.” Whatever protection the privacy clause may
provide Draper, its scope is limited by the final provision: “without
authority of law.” The parties did not brief the meaning of that provision
and we do not decide its requirements today. However, we are comfortable

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stating that a court order that follows notice and an opportunity to be heard
constitutes authority of law under the provision’s plain meaning.

¶23 Draper’s arguments present more difficult questions under
the VBR, Ariz. Const. art. 2, § 2.1, and its implementing statutes. Although
Nez has identified Draper as a possible third-party suspect, Draper retains
his rights as a statutory victim under § 13-4401(19) because his brother was
the murder victim. Specifically, Draper invokes his rights as a victim “[t]o
be treated with fairness, respect, and dignity, and to be free from
intimidation, harassment, or abuse, throughout the criminal justice
process,” Ariz. Const. art. 2, § 2.1(A)(1), and “[t]o refuse an interview,
deposition, or other discovery request by the defendant,” Ariz. Const. art.
2, § 2.1(A)(5). Hence, in an ordinary case, Draper would be completely
insulated from the defendant’s discovery request.

¶24 But this is not an ordinary case. Here, Draper’s VBR rights
are in conflict with Nez’s constitutional right to present a complete defense.
The VBR and its implementing statutes provide “powerful counterbalances
to defendants’ rights,” Vanders II, 251 Ariz. at 118 ¶ 20, in recognition that
the interests of crime victims may not otherwise be vindicated in the
criminal justice system. However, owing to the Supremacy Clause of the
United States Constitution, U.S. Const. art. VI, cl. 2, “when a defendant’s
due process right to present a complete defense (and ultimately, to a fair
trial) and a victim’s state constitutional or statutory rights directly conflict,
the due process right prevails.” Vanders II, 251 Ariz. at 118 ¶ 20. We are,
however, cognizant of our state constitutional mandate to construe rules of
criminal procedure to preserve and protect victims’ rights, Ariz. Const.
art. 2, § 2.1(A)(11), and we enforce the VBR to the maximum possible extent
without trespassing upon a defendant’s federal constitutional rights,
Vanders II, 251 Ariz. at 118 ¶ 21 (noting that “the rights of the defendant and
victims are not necessarily mutually exclusive”).

¶25 Vanders II greatly informs but does not fully resolve the issue
here. In that case, we specified what standard applies where a defendant
requests a victim’s confidential medical records from a third party for in
camera inspection and the victim invokes both the VBR protections and the
physician-patient privilege. 251 Ariz. at 115 ¶ 1. The Court observed that
when the defendant seeks discovery from a victim, Rule 15.1(g)’s

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requirements are necessarily modified to require the defendant to show
that the “substantial need” for the evidence is “one of constitutional
dimension.” Id. at 116 ¶ 12 (quoting State v. Connor, 215 Ariz. 553, 561 ¶ 22
(App. 2007)). We derived the applicable standard for establishing a need of
constitutional dimension from State ex rel. Romley v. Superior Court (Roper),
172 Ariz. 232 (App. 1992). In Roper, the court of appeals held that “if a trial
court excludes essential evidence, thereby precluding a defendant from
presenting a theory of defense, the trial court’s decision results in a denial
of the defendant’s right to due process that is not harmless.” 172 Ariz.
at 236.

¶26 In Vanders II, the Court held that to be entitled to discovery of
otherwise-confidential medical records for in camera inspection by the trial
court, the defendant must establish that the evidence sought in the records
is necessary to ensure “a fundamentally fair trial, including a meaningful
opportunity to present a complete defense.” 251 Ariz. at 116–17 ¶¶ 12–13.
Once the defendant has established that the evidence is of a constitutional
dimension, he must then demonstrate a “reasonable possibility that the
information [requested] includes evidence that would be material to the
defense or necessary to cross-examine a witness.” Id. at 115 ¶ 1. We
reasoned that “[a]lthough an in-camera review undoubtedly is an intrusion
into confidential records, . . . it is inherently less intrusive than disclosure to
defendants.” Id. at 119 ¶ 24. That is because the trial court plays a
“gatekeeper function,” id. ¶ 27, so that the victim’s records would be
released to a defendant only if the court determines “they contain
[evidence] essential to [the defendant’s] right to present a complete
defense.” Id. ¶ 24. The reasonable possibility standard “protects a victim’s
privacy interests but does so without infringing a defendant’s right to
obtain evidence necessary to present a complete defense.” Id. ¶ 26.

¶27 In light of these protections, the Court rejected a more
demanding “substantial probability” showing. Id. The Court reasoned that
this standard was too high in the in camera review context because making a
defendant prove that there is a substantial probability that the requested
information will contain evidence essential to presenting a complete
defense “effectively requires [the defendant] to know the contents of the
requested documents as a prerequisite for in-camera review.” Id. We noted
that a substantial probability showing “seems better suited to a [direct]

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disclosure rule rather than as a benchmark for in-camera review,” given the
far greater intrusion into a victim’s privacy that direct disclosure to the
defendant would necessarily entail. Id.

¶28 This case differs from Vanders II because a third party retained
by the defense would extract the data from Draper’s truck. In Vanders II,
the records went directly to the trial court from an independent third party
without passing through a third party affiliated with the defense, and the
information was only to be provided to the defendant after an independent
determination by the court. Therefore, the victim’s privacy would be
protected. That justified the less-burdensome “reasonable possibility”
standard we required from the defendant in that unique context.

¶29 Thus, the determinative question here is whether the same
protection exists for Draper, or whether, despite the presence of in camera
review, the data extraction is essentially a direct disclosure because the
defendant’s agent will be able to view the data or obtain and, at least
momentarily, possess it. The record is largely silent on exactly what the
extraction process entails. The trial court’s verbal instruction is that the
extracted data would be placed in an envelope—“maybe” signed by the
agent—and delivered directly to the court. We do not know whether Nez’s
agent will be able to view the data as it is extracted or even what form it
will take. If a possibility exists that the data will be made available for
viewing by Nez or his agent, that is tantamount to direct disclosure, hence
the assurances of victim privacy that justified the reasonable possibility
standard in Vanders II would not exist here.

¶30 Vanders II articulated the nature of the showing outside of a
direct disclosure context: “[a] defendant must demonstrate a constitutional
entitlement to [the requested] information in order to present a complete
defense by first showing a reasonable possibility that the information
sought includes evidence that would be material to the defense or necessary
to cross-examine a witness.” Id. at 120 ¶ 30. In other words, in that context,
a defendant is entitled to discovery of a victim’s privileged information
only upon showing that (1) the defendant seeks evidence whose materiality
is of constitutional dimension, as distinguished by evidence merely
relevant to the defense; and (2) there is a reasonable possibility that the
requested information actually includes such evidence. Id. As we

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explained, “[t]he defendant’s request must be based on more than mere
speculation and must include a sufficiently specific basis to deter fishing
expeditions, prevent a wholesale production of the victim’s medical
records, and adequately protect the parties’ competing interests.” Id.

¶31 Here, Nez satisfies that showing because his third-party
defense is more than a mere fishing expedition designed to evade VBR
protections. Cf. State v. Mandell, 253 Ariz. 97, 101 ¶ 16 (App. 2022) (rejecting
disclosure of victim’s personal information based on “vague claims”). First,
Nez seeks evidence of constitutional dimension because the evidence, if
found, would reliably reveal Draper’s precise location and movements
shortly after the murder. This evidence is necessary for Nez to establish a
complete defense—his proffered third-party defense is clearly colorable
because Draper (like the others present the evening of the murder) was
inebriated, he argued with his brother, he cannot fully account for his
whereabouts when the murder occurred because he passed out, and a knife
was found in his truck. And, second, given that the requested GPS data
would show the movements of Draper’s truck during the relevant time,
Nez certainly has shown that a “reasonable possibility” exists that the
relevant GPS information contains evidence of constitutional dimension.
See Vanders II, 251 Ariz. at 115 ¶ 1, 120 ¶ 30.

¶32 But under the circumstances here—where discovery may
entail disclosure directly from the victim to the defendant and thus evade
the privacy protections afforded by in camera review—Nez may need to
show more than a reasonable possibility that evidence necessary for his
defense exists within the universe of requested information to establish his
entitlement to discovery directly from Draper. Id. at 120 ¶ 30. As we
instructed in Vanders II, even when a defendant establishes that the request
for information is to obtain evidence of constitutional dimension, the
disclosure still must “prevent a wholesale production of the
victim’s . . . records, and adequately protect the parties’ competing
interests.” Id.

¶33 We are unable to determine from the record to what extent
disclosure would burden Draper, both in terms of the scope of the search
and the risk of initially disclosing private information directly to Nez or his
agent. On remand, if the trial court can establish time, place, and manner

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safeguards that minimize the disruption to Draper, limit the data’s
timeframe, and establish extraction protocols to ensure that only the court
will see the data, then Nez need only satisfy the “reasonable possibility”
standard, which we have no difficulty finding satisfied here.

¶34 If, by contrast, Nez’s agent will be able to view any portion of
the data or share it with Nez, then it becomes a direct disclosure and is
subject to the more demanding substantial probability standard. See
Vanders II, 251 Ariz. at 119 ¶ 26 (observing that the “substantial probability”
standard “seems better suited to a disclosure rule rather than as a
benchmark for in-camera review”); see also In re B.H., 946 N.W.2d 860,
870–71 (Minn. 2020) (“Requiring the alleged victim to disclose her cell
phone data directly to a defense-hired expert would undercut her right to
privacy and fail to properly balance this right with the defendant’s right to
present a defense . . . .”); cf. Chambers v. Mississippi, 410 U.S. 284, 302 (1973)
(stating due process requires allowing defendant to call a witness as a
possible third-party offender where there were “persuasive assurances of
trustworthiness”).

¶35 The substantial probability standard is appropriate for direct
disclosure of a victim’s information because it is commensurate with the
degree of intrusion into a victim’s privacy when balancing those interests
with the defendant’s need for discovery of evidence of constitutional
significance. See Vanders II, 251 Ariz. at 118 ¶ 21 (“[A] court must strike a
balance between the competing interests of a victim’s privilege and a
defendant’s federal constitutional rights to procure and present evidence
necessary to construct a complete defense.”). The “substantial probability”
standard is a familiar metric for weighing constitutional interests and, in
fact, is a fixture of Arizona mental health statutes, see, e.g., A.R.S.
§ 36-501(33)(b), which our courts have construed as meaning a “real
probability,” In re Maricopa Cnty. Cause No. MH-90-648, 173 Ariz. 177, 183
(App. 1992) (“We construe [substantial probability] to mean that there must
be the real probability that the individual will suffer some danger of harm
from his mental disorder if the condition is not treated.”). Other courts have
defined “substantial probability” and similar terms in various legal
contexts to mean “very likely” or “a strong likelihood.” See, e.g., Jabro v.
Superior Court, 95 Cal. App. 4th 754, 758 (2002) (holding that, in the context
of punitive damages claims, “substantial probability” means “‘very likely’

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or ‘a strong likelihood’ just as [its] plain meaning suggests”); In re
Commitment of Curiel, 597 N.W.2d 697, 704 (Wis. 1999) (stating that, “given
the common and appropriate usage of the term, we interpret ‘substantially
probable’ as meaning ‘much more likely than not’” in the context of a
statute governing commitment of sexually violent persons); In re Det. of
Bailey, 740 N.E.2d 1146, 1156–57 (Ill. App. Ct. 2000) (same). We are
persuaded that “very likely” is the proper meaning of “substantial
probability.”

¶36 Thus, applying the “substantial probability” standard in the
direct disclosure context, a defendant is entitled to discovery from a victim
if the defendant seeks evidence of constitutional dimension (which is
necessary to vindicate the defendant’s constitutional rights) and the
defendant establishes that the requested discovery is very likely to contain
such evidence.

¶37 Although we observed in Vanders II that the substantial
probability standard is usually very difficult to satisfy, 251 Ariz. at 119 ¶ 26,
the trial court may determine here that a substantial probability exists that
the requested GPS data contains precisely the location evidence necessary
to establish a third-party defense. If so, Nez would establish a need of
constitutional dimension for the sought evidence and a substantial
probability that the requested discovery will procure such evidence, to
which Draper’s VBR interests must yield.

¶38 To be clear, the trial court, in all circumstances, must take
whatever precautions it can to protect the privacy rights at stake. It will
always be the preferred course of action that an entity other than the
defendant’s agent extract the data and provide it to the court for in camera
review. However, where that is impossible, should the trial court
determine that a defendant satisfies the substantial probability showing, it
should still apply all possible precautions to safeguard the victim’s rights.

II.
¶39 The dissent contends that we have “graft[ed] onto [the]
constitutional entitlement [showing] an additional requirement” in the
direct disclosure context by requiring that a defendant establish “that the

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requested information is very likely to contain such evidence.” Infra ¶ 46.
The dissent misreads Vanders II and essentially rejects its central
framework. In Vanders II, we adopted a discovery standard requiring a
defendant to demonstrate a need for evidence of constitutional dimension
and that the requested discovery was reasonably likely to contain such
evidence. 251 Ariz. at 120 ¶ 30. We expressly premised the reasonable
possibility standard on the less onerous privacy invasion embodied in a
trial court’s in camera review of a victim’s medical records obtained from a
third party. Id. at 119 ¶ 24.

¶40 Rather than merely rejecting the majority’s substantial
probability standard in the direct disclosure context, the dissent appears to
repudiate the very concept of a conditional discovery standard centered, in
part, on balancing a defendant’s due process right to discovery with a
victim’s right to privacy based on the likelihood that evidence of
constitutional dimension exists within the universe of a victim’s requested
information. Infra ¶ 47. Instead, the dissent relies on State ex rel. A.B.,
99 A.3d 782 (N.J. 2014), for a fixed and ubiquitous “reasonable basis”
standard (akin to the “reasonable possibility” standard) for discovery of a
victim’s privileged or private information. Infra ¶ 51. But A.B. itself
acknowledged that “[t]he evidentiary burden necessarily increases in direct
proportion to the nature and extent of the intrusion.” 99 A.3d at 790.
Moreover, the dissent’s suggestion that the “substantial probability”
standard is “nearly impossible to meet,” infra ¶ 51, or is inconsistent with
the principle that victims’ rights must yield if they conflict with a
defendant’s due process rights, infra ¶ 47, is readily refuted by the
majority’s recognition that Nez likely meets the “substantial probability”
standard in this case, Part I. ¶ 37. Here, rather than “[e]levating dicta from
Vanders II,” infra ¶ 46, we embrace and faithfully apply its framework,
which the dissent seemingly abandons.

CONCLUSION

¶41 For the foregoing reasons, the trial court order is vacated and
the matter is remanded to that court for further proceedings consistent with
this Opinion.

15
 DRAPER V. HON. GENTRY/STATE/NEZ
JUSTICE BOLICK, joined by VICE CHIEF JUSTICE TIMMER, Concurring
in Part, Dissenting in Part and Dissenting in the Result

BOLICK, J., joined by TIMMER, VCJ, concurring in part, dissenting in
part, and dissenting in the result.

¶42 We concur with the majority on all of the issues except the
Victims’ Bill of Rights (“VBR”), and even agree with much of the analysis
of that issue. However, because in our view the principles on which the
majority and we agree dictate a different outcome, we dissent from the
majority’s resolution.

¶43 With the adoption of the VBR in 1990, Arizona marked an
important new epoch in ensuring for the first time a meaningful role for
victims in the criminal justice process. The VBR extended to crime victims
valuable rights of notice, participation, restitution, privacy, finality, and
others.

¶44 Typically, those rights can coexist comfortably with the rights
accorded to the accused under both the United States and Arizona
Constitutions. However, by virtue of the Supremacy Clause, U.S. Const.
Art. VI, cl. 2, “federal constitutional rights trump state constitutional and
statutory rights.” R.S. v. Thompson (Vanders II), 251 Ariz. 111, 118 ¶ 20
(2021). Therefore, “when a defendant’s due process right to present a
complete defense (and ultimately, to a fair trial) and a victim’s state
constitutional or statutory rights directly conflict, the due process right
prevails.” Id. Thus, as the majority aptly and elegantly states, “we enforce
the VBR to the maximum possible extent without trespassing upon a
defendant’s federal constitutional rights.” Supra ¶ 24.

¶45 Where a criminal defendant seeks discovery from a victim
that would otherwise be protected by the VBR, as we stated in Vanders II,
“a victim’s right to refuse discovery must yield when a defendant makes
the requisite constitutional showing of need for the information.” 251 Ariz.
at 118 ¶ 21. In the context of in camera disclosure, the Court held that “[a]
defendant must demonstrate a constitutional entitlement . . . by first
showing a reasonable possibility that the information sought includes
evidence that would be material to the defense or necessary to
cross-examine a witness.” Id. at 120 ¶ 30. The majority here holds that Nez
satisfies that standard, given that he seeks evidence of “constitutional

16
 DRAPER V. HON. GENTRY/STATE/NEZ
JUSTICE BOLICK, joined by VICE CHIEF JUSTICE TIMMER, Concurring
in Part, Dissenting in Part and Dissenting in the Result

dimension” because it is “necessary . . . to establish a complete defense,”
and has shown a reasonable possibility that the GPS data “contains
evidence of constitutional dimension.” Supra ¶ 31. That is precisely what
the Court held in Vanders II to establish a “constitutional entitlement” to the
information, 251 Ariz. at 120 ¶ 30, to which a victims’ privacy rights “must
yield.” Id. at 118 ¶ 21; see also State v. Matthews, 245 Ariz. 281, 285 ¶ 12 (App.
2018) (“[B]efore a victim may be compelled to disclose information or sit for
an interview, the defendant must show ‘a reasonable possibility’ that he is
entitled to the information as a matter of due process.” (emphasis added)
(quoting State v. Connor, 215 Ariz. 553, 558 ¶ 10 (App. 2007))).

¶46 That same inquiry should apply here. But instead, the
majority grafts onto that constitutional entitlement an additional
requirement. Elevating dicta from Vanders II, it holds that in the direct
disclosure context, 251 Ariz. at 119 ¶ 26, a defendant seeking discovery
from a victim must show that the evidence sought is “of constitutional
dimension (which is necessary to vindicate the defendant’s constitutional
rights)” and establish “that the requested information is very likely to contain
such evidence.” Supra ¶ 36.

¶47 That additional requirement is inconsistent with the
majority’s recognition that VBR rights must yield if they conflict with a
defendant’s constitutional right to present a complete defense. The
showing necessary to establish that right does not increase based on the
burden imposed on the victim; it either is met or it isn’t. If it is met, the
victim’s rights must still be accommodated to the greatest possible extent
consistent with the defendant’s right to present a complete defense, but
enforcement of the VBR cannot impose greater conditions on the
defendant’s right.

¶48 But that is exactly what the “substantial possibility”
requirement does. By the majority’s own reasoning, a defendant who
establishes a right of constitutional dimension, specifically seeking
evidence “necessary to vindicate the defendant’s constitutional rights,”
must additionally show the requested information is “very likely” to
contain such evidence. The majority does so notwithstanding our
observation in Vanders II that the substantial probability standard

17
 DRAPER V. HON. GENTRY/STATE/NEZ
JUSTICE BOLICK, joined by VICE CHIEF JUSTICE TIMMER, Concurring
in Part, Dissenting in Part and Dissenting in the Result

“effectively requires a defendant to know the contents of the requested
documents.” 251 Ariz. at 119 ¶ 26. Thus, in the direct disclosure context, a
defendant may in many instances be unable to obtain evidence that, as the
majority acknowledges here, is of a constitutional dimension, necessary to
provide a complete defense, and is reasonably likely to exist within the
discovery sought.

¶49 Enforcing the VBR in this way impermissibly diminishes a
defendant’s ability to exercise a federal constitutional right. We cannot say
it better than the Court did in Vanders II, which declared that courts
“generally recognize the unremarkable principle we embrace here: ‘the
purpose of pretrial discovery is to ensure a fair trial[,] [and] [a] criminal trial
where the defendant does not have access to the raw materials integral to
the building of an effective defense is fundamentally unfair.’” 251 Ariz.
at 120 ¶ 29 (alterations in original) (quoting State ex rel. A.B., 99 A.3d 782,
790 (N.J. 2014)). Indeed, “if a trial court excludes essential evidence, thereby
precluding a defendant from presenting a theory of defense, the trial court’s
decision results in a denial of the defendant’s right to due process.” State
ex rel. Romley v. Superior Court (Roper), 172 Ariz. 232, 236 (App. 1992).

¶50 The majority accuses us of abandoning Vanders II, but we
embrace and would apply here the same standard we applied in that
opinion. Indeed, we observed in Vanders II that “‘the burden of
demonstrating a ’reasonable possibility’ is not insubstantial.’” Vanders II,
251 Ariz. at 119 ¶ 23 (quoting State v. Kellywood, 246 Ariz. 45, 48 ¶ 9 (App.
2018)). Until this decision, the Court has consistently held that the
application of the VBR cannot diminish a defendant’s constitutional rights.
Here, instead, the majority holds that the defendant’s unquestioned right
to obtain information necessary to present a complete defense and to
cross-examine witnesses is only the starting point: that right cannot be
vindicated if it involves a direct disclosure unless it is highly likely to
include the identified information.

¶51 Where the VBR collides with a defendant’s right of
constitutional dimension, as the majority acknowledges here, the proper
course is not to deny disclosure or impose requirements that are nearly
impossible to meet, but to allow it in a way that is least burdensome to the

18
 DRAPER V. HON. GENTRY/STATE/NEZ
JUSTICE BOLICK, joined by VICE CHIEF JUSTICE TIMMER, Concurring
in Part, Dissenting in Part and Dissenting in the Result

victim. See, e.g., Connor, 215 Ariz. at 561 ¶ 22; Roper, 172 Ariz. at 240–41. In
A.B., which we cited approvingly in Vanders II, 251 Ariz. at 120 ¶ 29, the
New Jersey Supreme Court, in the much more invasive context of
inspecting a victim’s home, stated the standard to which we should
consistently adhere: “[W]hen the defense . . . has articulated a reasonable
basis to believe the inspection will lead to relevant evidence on a material
issue, then, subject to appropriate time, place, and manner restrictions
intended to protect the privacy interests of the alleged victim and her
family, the discovery should be granted.” 99 A.3d at 793. The trial court
should take every possible step to facilitate in camera review rather than
direct disclosure; and if that proves impossible, to minimize the intrusion
to the victim and to limit the scope of the discovery.

¶52 But requiring a substantial probability showing elevates a
victim’s privacy rights over a defendant’s right to present a complete
defense. That we cannot do. For the foregoing reasons, and with great
respect to our colleagues, we dissent from this part of the majority’s holding
and would affirm the trial court’s discovery order.

19