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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JESUS BUSSO-ESTOPELLAN, Appellant.

No. 1 CA-CR 20-0496 

Appeal from the Superior Court in Maricopa County

No. CR2011-133622-001

The Honorable Jay R. Adleman, Judge

AFFIRMED IN PART; VACATED IN PART

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Casey D. Ball

Counsel for Appellee

The Stavris Law Firm PLLC, Scottsdale

By Christopher Stavris

Counsel for Appellant

FILED 6-2-2022
STATE v. BUSSO-ESTOPELLAN

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Jennifer B. Campbell delivered the decision of the Court, 

in which Judge Randall M. Howe and Judge James B. Morse Jr. joined.

C A M P B E L L, Judge:

¶1 Jesus Busso-Estopellan appeals his convictions and sentences 

for two counts of first-degree murder and one count of misconduct 

involving weapons. For the following reasons, we vacate the misconduct 

involving weapons conviction but otherwise affirm.

BACKGROUND

¶2 While seated in a parked car, Tim and his friend, Oliver, were 

approached by a young, Hispanic man who shot them both in the head and 

then fled on foot.

1 Despite being severely injured, Tim called 9-1-1 and 

provided a description of the assailant. 

¶3 By the time police officers arrived at the scene a few minutes 

later, Oliver had died. Though still conscious when emergency responders 

transported him to a hospital, Tim later succumbed to his injuries as well. 

¶4 Shortly after attending to the victims, police officers 

recovered their cell phones. While scanning Oliver’s phone, an officer 

found a series of texts that Oliver had exchanged during the hour preceding 

the murders. The texts reflected that Oliver had planned to meet the 

recipient of his texts at the location where the shooting occurred, and that 

the recipient had arrived at the meeting place ten minutes before Tim called 

9-1-1. 

¶5 Later, a detective obtained a court order (the Order) to 

retrieve subscriber and cell-site location information (CSLI)2 from the 

1 We use pseudonyms to protect the victims’ privacy.

2 “Cell phones perform their wide and growing variety of functions 

by connecting to a set of radio antennas called ‘cell sites.’” Carpenter v. 

United States, 138 S. Ct. 2206, 2208 (2018). “Each time [a] phone connects to 

a cell site, it generates a time-stamped record known as cell-site location 

information (CSLI).” Id.
STATE v. BUSSO-ESTOPELLAN

Decision of the Court

3

cellular telephone provider and wireless carrier for the phone number 

associated with the texts (the Target Phone). In his application for the 

Order, and consistent with the statutes authorizing such an order, the 

detective avowed that the requested information was “relevant and 

material to the ongoing investigation,” a standard that is lower than the 

probable cause required for a search warrant. See 18 U.S.C. § 2703(d); A.R.S. 

§ 13-3016(B)(3); Carpenter, 138 S. Ct. at 2221 (noting that the standard

“‘relevant and material to an ongoing investigation’ . . . falls well short of 

the probable cause required for a warrant”). 

¶6 When law enforcement officers received the subscriber 

information and related CSLI subject to the Order, they discovered that the 

Target Phone was in the immediate area of the shooting at the time the 

victims were murdered and that it was registered to Busso-Estopellan. The 

next day, officers arrested Busso-Estopellan as the suspected shooter. While 

officers interviewed him at a police station, other officers searched his home 

pursuant to a search warrant. During his interview, Busso-Estopellan 

confessed to the murders and directed the officers to look in a dumpster

where he hid the gun used to shoot the victims. Explaining he had brokered 

a drug deal between Oliver and a third party a few months before the 

shooting, Busso-Estopellan claimed he “had to” kill Oliver because the 

third party was threatening him. Police subsequently obtained another

warrant to retrieve information, including CSLI, regarding a phone number

associated with the third party, as indicated on Busso-Estopellan’s 

cellphone. 

¶7 The State charged Busso-Estopellan with two counts of firstdegree murder and one count of misconduct involving weapons, alleging 

he, a Mexican national, was in the United States unlawfully at the time of 

the murders. See A.R.S. §§ 13-3101(A)(7)(e) (providing generally that an 

“undocumented alien or a nonimmigrant alien” is a “prohibited 

possessor”), -3102(A)(4) (“A person commits misconduct involving 

weapons by knowingly . . . [p]ossessing a deadly weapon . . . if such person 

is a prohibited possessor[.]”). The State also filed a notice of its intent to seek 

the death penalty and alleged multiple aggravating factors. 

¶8 Before trial, Busso-Estopellan moved to suppress information 

obtained pursuant to the Order, arguing the police violated his Fourth 

Amendment rights and Arizona law by procuring the cellular phone 

information without a search warrant. He did not request an evidentiary 

hearing, and after considering the parties’ pleadings and other submissions, 

the superior court found Busso-Estopellan lacked a reasonable expectation 

of privacy in the challenged information and denied the motion. 
STATE v. BUSSO-ESTOPELLAN

Decision of the Court

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¶9 A jury found Busso-Estopellan guilty as charged. The jurors 

also found an aggravating factor for each count of murder, making BussoEstopellan eligible for the death penalty. The jury could not agree on the 

appropriate sentence, however, resulting in a mistrial during the penalty 

phase of the trial. The State eventually withdrew its intent to seek the death 

penalty, and the superior court imposed consecutive natural life sentences 

for the first-degree murder convictions. The court also imposed a 2.5-year 

prison term for the weapons offense to be served concurrently with the 

initial life sentence. Busso-Estopellan timely appealed. 

DISCUSSION

I. Motion to Suppress

¶10 After Busso-Estopellan’s trial in this matter, but before 

sentencing, the United States Supreme Court held in Carpenter, for the first 

time, that the Fourth Amendment generally requires a search warrant

supported by probable cause to obtain historical CSLI from a wireless 

carrier. 138 S. Ct. at 2221. Busso-Estopellan argues that the Order was not a 

search warrant, and therefore, under Carpenter, the superior court erred by 

denying his motion to suppress. 

¶11 As an initial matter, the State concedes that the warrant 

requirement enunciated in Carpenter applies to the superior court’s ruling 

in this case. See State v. Towery, 204 Ariz. 386, 389, ¶ 6 (2003) (explaining that

new constitutional rules apply retroactively to cases on direct review). We 

agree.

¶12 In Carpenter, the Supreme Court determined that individuals 

have a legitimate expectation of privacy in their “physical movements as 

captured through CSLI[,]” and therefore the government’s acquisition of

CSLI constitutes a search under the Fourth Amendment. 138 S. Ct. at 2217.

Accordingly, applying Carpenter, the superior court erred in finding BussoEstopellan did not have a reasonable expectation of privacy in the CSLI. 

¶13 Nonetheless, we must affirm the superior court’s ruling on 

any legal ground supported by the record. State v. Fuentes, 247 Ariz. 516, 

522, ¶ 15 (App. 2019). After the United States Supreme Court issued

Carpenter, the Arizona Supreme Court addressed whether CSLI evidence 

obtained pre-Carpenter pursuant to an order like the Order here should 

have been suppressed. State v. Smith, 250 Ariz. 69 (2020). Noting that 

“[c]ourts have consistently applied the good-faith exception to CSLI orders 

issued prior to Carpenter,” the supreme court affirmed the superior court’s 

denial of a suppression motion. Id. at 81-82, ¶¶ 24-28. As the supreme court 
STATE v. BUSSO-ESTOPELLAN

Decision of the Court

5

made clear, because the good-faith exception to the exclusionary rule

applied, it was “irrelevant” that the CSLI order did not satisfy the “more 

stringent standards for obtaining search warrants.” Id. at 81, ¶ 28; see also

State v. Hyde, 186 Ariz. 252, 273 (1996) (“[E]vidence obtained in objective

good faith reliance on a faulty search warrant should not be suppressed.”). 

¶14 While acknowledging substantial limits to the application of 

the exclusionary rule, Busso-Estopellan argues that the good-faith 

exception does not insulate the CSLI obtained pursuant to the Order 

because the police knew they lacked a good-faith basis for requesting the 

Order when they sought it. To support this contention, Busso-Estopellan 

points to subsequent efforts by police to obtain a “traditional search 

warrant supported by probable cause” when they sought CSLI related to 

the third-party’s phone records, including “a complete duplicate” of BussoEstopellan’s phone records. 

¶15 We reject this argument for two reasons. First, BussoEstopellan cites no supporting authority. Second, and more importantly, 

the record does not reflect that law enforcement officers sought the 

subsequent warrant to remedy any Fourth Amendment deficiency

associated with the Order. Instead, the record reflects that the police used 

the Order to investigate the identity of the person with whom Oliver texted 

immediately before the shooting. Then, after Busso-Estopellan confessed to 

the murders, police sought the warrant to investigate whatever connection

the third party had to the shootings. 

¶16 Because police initially obtained CSLI for Busso-Estopellan’s 

phone pursuant to a pre-Carpenter court order, and, in applying for the 

Order, reasonably relied on A.R.S. § 13-3016’s authorization of warrantless 

searches of CSLI, we conclude that the good-faith exception to the warrant 

requirement applied. Therefore, the superior court did not abuse its 

discretion in denying Busso-Estopellan’s motion to suppress. See State v. 

Gay, 214 Ariz. 214, 217, ¶ 4 (App. 2007) (denial of motion to suppress 

reviewed for abuse of discretion).

¶17 Given our resolution of this issue, we need not address the 

superior court’s determination that, based on the subsequent warrant, 

police would have inevitably discovered the CSLI for Busso-Estopellan’s 

cell phone. We also summarily reject Busso-Estopellan’s contention that the 

Order violated Article 2, Section 8, of the Arizona Constitution. See Smith, 

250 Ariz. at 82, ¶¶ 32-33 (rejecting Article 2, Section 8 challenge to similar 

order because warrantless search did not involve defendant’s home and 
STATE v. BUSSO-ESTOPELLAN

Decision of the Court

6

was otherwise subject to the good-faith exception to the warrant 

requirement). 

II. Count 3: Motion for Judgment of Acquittal

¶18 Busso-Estopellan argues that the superior court erred by 

denying his motion for judgment of acquittal regarding the misconduct 

involving weapons charge (Count 3). See Ariz. R. Crim. P. 20(a)(1) (“After 

the close of evidence on either side, and on motion or on its own, the court 

must enter a judgment of acquittal on any offense charged in an indictment, 

information, or complaint if there is no substantial evidence to support a 

conviction.”). We review the denial of a Rule 20 motion de novo. State v. 

Bible, 175 Ariz. 549, 595 (1993).

¶19 As noted, the State alleged in Count 3 that Busso-Estopellan 

was in the United States unlawfully on or about the date of the murders. 

In its brief, the State asserts that documents found in Busso-Estopellan’s car 

after his arrest demonstrated his unlawful status. Those documents 

included: (1) an Arizona marriage certificate issued to Busso-Estopellan and 

his wife in 2010; (2) Busso-Estopellan’s Mexican birth certificate; (3) BussoEstopellan’s Mexican identity card that expired in 2013; (4) BussoEstopellan’s “border crossing card” that expired in 2006; and (5) paperwork 

showing that, a few months before the murders, Busso-Estopellan was 

released on bond pending a deportation hearing. But none of those 

documents demonstrated that Busso-Estopellan was in the country 

unlawfully at the time of the offenses. At most, the evidence of his release 

only indicated he was allegedly deportable.

¶20 The State also relies on Busso-Estopellan’s statement during 

his police interview that he was “working on [his] residency right now” 

when asked whether he was a United States citizen. That statement did not 

establish Busso-Estopellan’s unlawful presence in the country. Although 

Busso-Estopellan’s response could imply he was not a United States citizen, 

the case agent also testified that individuals who are not United States

citizens may nonetheless be lawfully present in the country, and residency 

is not the only means to establish lawful presence. 

¶21 We conclude that the foregoing failed to provide a sufficient 

basis for determining, beyond a reasonable doubt, that Busso-Estopellan 

was unlawfully in the Unites States at the time of the offenses. See State v. 

Henry, 205 Ariz. 229, 232, ¶ 11 (App. 2003) (“Substantial evidence, which 

may be either circumstantial or direct, is evidence that a reasonable jury can 

accept as sufficient to infer guilt beyond a reasonable doubt.”). The superior
STATE v. BUSSO-ESTOPELLAN

Decision of the Court

7

court, therefore, erred by denying the motion for judgment of acquittal 

regarding Count 3. Accordingly, we vacate Busso-Estopellan’s conviction 

for misconduct involving weapons and the resulting sentence. 

III. Mistrial Motion

¶22 During the penalty phase of trial, Busso-Estopellan moved for 

a mistrial, alleging the prosecutor engaged in misconduct during the 

proceeding by intimidating witnesses. Busso-Estopellan challenges the 

superior court’s denial of the motion. 

¶23 We do not address this issue because it is moot. See Star Publ’g. 

Co. v. Bernini, 228 Ariz. 490, 492, ¶ 3 (App. 2012) (explaining this court 

typically does not address moot issues). The penalty phase otherwise 

resulted in a mistrial based on the jury’s inability to agree unanimously on 

a sentence, and the State thereafter withdrew its notice of intent to seek the 

death penalty. See State v. Lambright, 243 Ariz. 244, 253, ¶ 28 (App. 2017)

(“Because the trial court declared a mistrial when the jury could not reach 

a verdict on whether to sentence [the defendant] to death, whether the trial 

court had erred in admitting . . . testimony during the aggravation phase of 

that resentencing trial is moot.”).3

3 Anticipating possible relief in “subsequent post-conviction 

proceedings,” Busso-Estopellan asks this court to preclude the State from

seeking the death penalty in a future retrial. Busso-Estopellan’s double 

jeopardy concerns regarding a possible resentencing are speculative at best, 

and his request to resolve the issue in this appeal is premature. See Arpaio 

v. Figueroa, 229 Ariz. 444, 448, ¶ 14 (App. 2012) (explaining an appellate 

ruling on a premature issue results in an “advisory opinion,” which is 

“anticipative of troubles [that] do not exist; may never exist; and the precise 

form of which, should they ever arise, we cannot predict (internal quotation 

marks and citation omitted)).
STATE v. BUSSO-ESTOPELLAN

Decision of the Court

8

CONCLUSION

¶24 For the foregoing reasons, we vacate Busso-Estopellan’s

misconduct involving weapons conviction and the resulting sentence. We 

affirm, however, the first-degree murder convictions and life sentences.