Brown factors in Arizona

2023See Brown, 422 U.S. at 599-600 . ¶15 Brown instructs us to consider three factors: (1) “the time elapsing between the illegality and the acquisition of the evidence,” (2) “the presence of intervening circumstances,” and (3) “the purpose and flagrancy of the original official misconduct.” State v. Solano, 187 Ariz. 512, 518 (App. 1996) (summarizing the Brown factors); see also Brown, 422 U.S. at 603-04 .2 1Although the interview transcript is not included in the record on appeal, the trial court read into the record this relevant portion.

2023See Brown, 422 U.S. at 599-600 . ¶15 Brown instructs us to consider three factors: (1) “the time elapsing between the illegality and the acquisition of the evidence,” (2) “the presence of intervening circumstances,” and (3) “the purpose and flagrancy of the original official misconduct.” State v. Solano, 187 Ariz. 512, 518 (App. 1996) (summarizing the Brown factors); see also Brown, 422 U.S. at 603-04 .2 1Although the interview transcript is not included in the record on appeal, the trial court read into the record this relevant portion.

2026See State v. Reed, 196 Ariz. 37, ¶¶ 3, 7 (App. 1999); Williams, 209 Ariz. 228, ¶ 47 . 9 STATE v. BROWN Opinion of the Court PROFILE EVIDENCE ¶34 Brown argues that the trial court erred by allowing the state to present impermissible profile evidence that went to the ultimate issue of the case.

2026See State v. Reed, 196 Ariz. 37, ¶¶ 3, 7 (App. 1999); Williams, 209 Ariz. 228, ¶ 47 .

2016See State v. Glassel, 211 Ariz. 33 , 57 ¶ 101 n. 17, 116 P.3d 1193 , 1217 n. 17 (2005) (holding that defendant waived issues by not raising them before trial or appellate courts). ¶ 17 In sum, the State has not demonstrated that an exception to the exclusionary rale applies here to justify the trial court’s denial of Brown’s motion to suppress.

2016See State v. Glassel, 211 Ariz. 33 , 57 ¶ 101 n. 17, 116 P.3d 1193 , 1217 n. 17 (2005) (holding that defendant waived issues by not raising them before trial or appellate courts). ¶ 17 In sum, the State has not demonstrated that an exception to the exclusionary rale applies here to justify the trial court’s denial of Brown’s motion to suppress.

2026See State v. White, 144 Ariz. 245, 247 (1985). ¶27 We note that although Brown’s brief describes harassment as a “lesser-included” offense, his argument suggests it was a “necessarily included” one.

2026But “necessarily included” is not always the same as “lesser included.” State v. Dugan, 125 Ariz. 194, 195 (1980).

2024See State v. Conner, 163 Ariz. 97, 104 (1990) (right to counsel at critical stages); see also State v. Bohn, 116 Ariz. 500, 503 (1977) (right to be present at critical stages). ¶13 The trial court properly instructed the jury on the elements of the charged offenses, the State’s burden of proof, and Brown’s presumption of innocence.

2024See State v. Conner, 163 Ariz. 97, 104 (1990) (right to counsel at critical stages); see also State v. Bohn, 116 Ariz. 500, 503 (1977) (right to be present at critical stages). ¶13 The trial court properly instructed the jury on the elements of the charged offenses, the State’s burden of proof, and Brown’s presumption of innocence.

2023See Davis, 564 U.S. at 238 (“deterrent value of exclusion is strong and tends to outweigh the resulting costs” when police exhibit reckless 5Leon limited application of the exclusionary rule to reject suppression of evidence “obtained in objectively reasonable reliance on a subsequently invalidated search warrant,” but expressly withheld from this exception warrants invalidated under Franks. 468 U.S. at 922-23 . 8 STATE v. SCOTT Opinion of the Court disregard for Fourth Amendment rights).

2023Herring v. United States, 555 U.S. 135, 144 (2009) (in context of Brown inquiry, exclusionary rule serves to deter, inter alia, reckless underlying conduct). ¶23 Here, the trial court expressly found that the detective recklessly disregarded the truth in presenting grounds for the search warrant.

2023In applying the Brown test, Chief Justice Roberts expressly clarified the level of underlying police misconduct compelling suppression of evidence as fruit of the poisonous tree: “As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct . . . .” Herring, 555 U.S. at 144 (emphasis added).

2023See Davis, 564 U.S. at 238 (“deterrent value of exclusion is strong and tends to outweigh the resulting costs” when police exhibit reckless 5Leon limited application of the exclusionary rule to reject suppression of evidence “obtained in objectively reasonable reliance on a subsequently invalidated search warrant,” but expressly withheld from this exception warrants invalidated under Franks. 468 U.S. at 922-23 . 8 STATE v. SCOTT Opinion of the Court disregard for Fourth Amendment rights).

2023Id. at 604 ; see also State v. Reffitt, 145 Ariz. 452, 459-60 (1985) (noting that among the Brown factors, flagrancy of official misconduct “is entitled to special weight”).

2023Id. at 604 ; see also State v. Reffitt, 145 Ariz. 452, 459-60 (1985) (noting that among the Brown factors, flagrancy of official misconduct “is entitled to special weight”).

2023See Brown, 422 U.S. at 599-600 . ¶15 Brown instructs us to consider three factors: (1) “the time elapsing between the illegality and the acquisition of the evidence,” (2) “the presence of intervening circumstances,” and (3) “the purpose and flagrancy of the original official misconduct.” State v. Solano, 187 Ariz. 512, 518 (App. 1996) (summarizing the Brown factors); see also Brown, 422 U.S. at 603-04 .2 1Although the interview transcript is not included in the record on appeal, the trial court read into the record this relevant portion.

2023See Brown, 422 U.S. at 599-600 . ¶15 Brown instructs us to consider three factors: (1) “the time elapsing between the illegality and the acquisition of the evidence,” (2) “the presence of intervening circumstances,” and (3) “the purpose and flagrancy of the original official misconduct.” State v. Solano, 187 Ariz. 512, 518 (App. 1996) (summarizing the Brown factors); see also Brown, 422 U.S. at 603-04 .2 1Although the interview transcript is not included in the record on appeal, the trial court read into the record this relevant portion.

2023Thus, to the extent the dissent maintains that a showing of intentional or purposeful police misconduct should be necessary to justify exclusion of evidence “down the causal chain” of the initial illegality, its reasoning contradicts our settled standards for addressing the admissibility of such evidence. ¶30 Even assuming that, in an individual case, an especially mitigated form of recklessness could be an insufficient basis to trigger the deterrence purpose of the exclusionary rule under the Brown test, see, e.g., United States v. Yorgensen, 845 F.3d. 908, 915 (8th Cir. 2017) (insufficient f

2023Thus, to the extent the dissent maintains that a showing of intentional or purposeful police misconduct should be necessary to justify exclusion of evidence “down the causal chain” of the initial illegality, its reasoning contradicts our settled standards for addressing the admissibility of such evidence. ¶30 Even assuming that, in an individual case, an especially mitigated form of recklessness could be an insufficient basis to trigger the deterrence purpose of the exclusionary rule under the Brown test, see, e.g., United States v. Yorgensen, 845 F.3d. 908, 915 (8th Cir. 2017) (insufficient f

2022See State v. Shumway, 137 Ariz. 585, 588 (1983) (“[A] comment on the evidence . . . occurs when the judge tells the jury his opinion of what the evidence does or does not show.”) (emphasis added). ¶13 Brown contends the court’s comments are nonetheless constitutionally problematic because they reached the jury “through the vehicle of the State’s closing argument.” The court noted a potential inference, and the State argued the same inference in closing: the jurors could conclude that fear or another emotion influenced the witnesses’ testimony.

2019Comm’n, 184 Ariz. 451, 455 (App. 1995) (dismissal inappropriate where Brown factors weigh equally in each direction). ¶14 In the Award, the ALJ cited Brown in analyzing clearly erroneous facts.

2014See State v. Henderson, 210 Ariz. 561 , 567 ¶ 19, 115 P.3d 601, 607 (2005).

2014See State v. Henderson, 210 Ariz. 561 , 567 ¶ 19, 115 P.3d 601, 607 (2005).

2013See State v. Riggs, 189 Ariz. 327, 330 , 942 P.2d 1159, 1162 (1997) (Victim’s Bill of Rights does not permit victim to refuse to testify at trial).

2013See State v. Riggs, 189 Ariz. 327, 330 , 942 P.2d 1159, 1162 (1997) (Victim’s Bill of Rights does not permit victim to refuse to testify at trial).

2011See State v. Frierson, 926 So.2d 1139, 1144 (Fla.2006) (finding “very significant the third factor in the Brown analysis” in concluding taint of illegal stop dissipated by non-pretex-tual, good faith discovery of outstanding arrest warrant).

2011See State v. Frierson, 926 So.2d 1139, 1144 (Fla.2006) (finding “very significant the third factor in the Brown analysis” in concluding taint of illegal stop dissipated by non-pretex-tual, good faith discovery of outstanding arrest warrant).

2010Applying the three Brown factors, the court first noted that “only about five minutes elapsed between the illegal stop ... and the search,” but that although this “weighted] against finding the search attenuated[,] ... ‘the time span between the police misconduct and the [search wa]s not dispositive on the question of taint.’” Id. at 521 (fourth alteration in Green), quoting United States v. Fazio, 914 F.2d 950, 958 (7th Cir.1990).

2004“Consideration of the constitutionality of [seizures less intrusive than arrest] involves a weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.” Id. at 50-51 , 99 S.Ct. 2637 ; State v. Tykwinski, 170 Ariz. 365, 367 , 824 P.2d 761, 763 (App.1991). ¶ 14 The investigative stop 3 of Defendant as a material witness passes the Brown test of reasonableness.

2004“Consideration of the constitutionality of [seizures less intrusive than arrest] involves a weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.” Id. at 50-51 , 99 S.Ct. 2637 ; State v. Tykwinski, 170 Ariz. 365, 367 , 824 P.2d 761, 763 (App.1991). ¶ 14 The investigative stop 3 of Defendant as a material witness passes the Brown test of reasonableness.