IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

EMILIO JEAN, Appellant.

No. 1 CA-CR 14-0444

Appeal from the Superior Court in Coconino County

No. S0300CR201200246

The Honorable Cathleen Brown Nichols, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Terry M. Crist, III

Counsel for Appellee

Coconino County Public Defender’s Office, Flagstaff

By Brad Bransky

Counsel for Appellant

OPINION

Judge Patricia A. Orozco delivered the opinion of the Court, in which 

Presiding Judge Diane M. Johnsen and Judge Kenton D. Jones joined.
STATE v. JEAN

Opinion of the Court

2

O R O Z C O, Judge:

¶1 Emilio Jean appeals his convictions and sentences for money 

laundering, conspiracy to commit money laundering and transportation of 

marijuana, transportation of marijuana for sale in an amount over two 

pounds and illegally conducting an enterprise. Jean argues the trial court 

erred when it: admitted evidence of other acts, denied his motion to 

suppress evidence based on lack of standing to challenge a warrantless 

global positioning system (GPS) device and denied his motion for mistrial. 

For the reasons that follow, we affirm Jean’s convictions and sentences.

FACTS1 AND PROCEDURAL HISTORY

¶2 Arizona Department of Public Safety (DPS) officers placed a 

GPS tracking device on a commercial truck in 2010 because they suspected 

the truck and its attached trailer were involved in criminal activity. The 

officers did not, however, obtain a warrant before they placed the device on 

the truck. Two days later, at the request of investigators who were tracking 

the truck, a DPS officer stopped the truck as it traveled eastbound on 

Interstate 40. When the officer stopped the truck, the truck’s owner was in 

the driver’s seat and Jean was in the sleeper berth. Jean claimed he was 

simply a driver-in-training. A search of the trailer revealed ninety-five 

bales of marijuana weighing a total of 2140 pounds. 

¶3 A jury found Jean guilty. The trial court sentenced him to 

concurrent terms of ten years’ imprisonment for conspiracy and 

transportation of marijuana for sale and placed him on five years’ probation 

for illegally conducting an enterprise and money laundering. Jean timely

appealed. We have jurisdiction pursuant to the Arizona Constitution, 

Article 6, Section 9, and Arizona Revised Statutes (A.R.S.) sections 

12-120.21.A, 13-4031 and -4033.A (West 2016).

2 

 

1 We review the facts in the light most favorable to sustaining the trial 

court’s ruling. State v. Hyde, 186 Ariz. 252, 265 (1996). We give deference to 

the trial court’s factual findings. State v. Adams, 197 Ariz. 569, 572, ¶ 16 

(App. 2000). 

2 Absent a change material to our opinion, we cite to a statute’s most 

current version.
STATE v. JEAN

Opinion of the Court

3

DISCUSSION

I. Admission of Evidence of Other Acts

¶4 Jean argues the trial court erred when it granted the State’s 

motion to admit evidence pursuant to Arizona Rule of Evidence 404(b). 

Jean argues the State failed to prove by clear and convincing evidence that 

he committed the prior act, the prior act was too remote to the charged 

offenses to be relevant, and any probative value was substantially 

outweighed by the danger of unfair prejudice. We review admission of 

evidence pursuant to Rule 404(b) for abuse of discretion. State v. Van Adams, 

194 Ariz. 408, 415, ¶ 20 (1999). 

¶5 The State filed a notice of its intent to offer evidence of other 

acts, to which Jean objected. At a pretrial hearing, the State introduced the 

testimony of a Missouri State Highway Patrol Officer who arrested Jean in 

Missouri in 1999. The officer testified that in 1999, he performed safety 

inspections of commercial trucks at a weigh station as part of his “criminal 

interdiction” assignment. During a routine inspection of a truck and the 

associated paperwork, the officer noted various factors that suggested drug 

smuggling, including irregularities with the drivers’ log books, air 

fresheners and multiple cell phones.

3 The officer found three people in the 

truck with Jean in the sleeper berth. Another passenger claimed to be a 

driver-in-training, yet the log books showed he had done very little driving. 

The driver consented to a search after a drug detection dog alerted to the 

trailer. The search revealed 1774 pounds of bundled marijuana. The 

primary driver claimed Jean was the person who monitored the loading of 

the trailer. The officer arrested all three individuals, including Jean, but no

one was prosecuted. 

¶6 The trial court held it would admit the Missouri incident as 

evidence of other acts, stating the evidence was relevant to show Jean’s 

knowledge. The court also stated that the State proved by clear and 

convincing evidence both that the prior incident occurred and Jean was 

involved as a participant in the activity, not merely present. The trial court 

found the similarities between the two events “quite striking” and stated 

that “the Missouri incident really mirrors in almost every respect the 

incident in this case.” Jean was in the sleeper berth during both stops. Both 

involved similarly large quantities of marijuana in the trailer of a large 

commercial truck. There were similar concerns with the drivers’ log books. 

 

3 The trial court observed that cell phones were not as prevalent in 

1999 as they are today. 
STATE v. JEAN

Opinion of the Court

4

Both stops involved trucks seemingly owned by small trucking companies 

that were having empty trucks drive long distances to pick up cargo, which 

made no economic sense. Additionally, the court found it “compelling”

that there was evidence Jean supervised the loading of the trailer in the 

Missouri incident. The court acknowledged eleven years had passed since 

the Missouri incident, but held that went to the weight of the evidence and 

not its admissibility. The court also considered the evidence in the context 

of Rule 403, finding the danger of unfair prejudice did not substantially 

outweigh the probative value of the evidence. The Missouri officer 

subsequently recounted the prior incident at trial. 

¶7 Evidence of other crimes, wrongs or acts is admissible if 

relevant and admitted for a proper purpose, such as to prove motive, 

opportunity, intent, preparation, plan, knowledge, identity, or absence of 

mistake or accident. Ariz. R. Evid. 404(b). The trial court did not abuse its 

discretion when it held the State proved by clear and convincing evidence 

the Missouri incident occurred and Jean was involved, not merely present, 

and that the incident was relevant to prove Jean’s knowledge in the current 

case. See State v. Prion, 203 Ariz. 157, 163, ¶ 37 (2002) (“For other act 

evidence to be admissible, it must be shown by the clear and convincing 

standard that the act was committed and that the defendant committed 

it.”). Clear and convincing evidence is evidence that makes the proposition 

“highly probable.” State v. Renforth, 155 Ariz. 385, 388 (App. 1987) (citation 

omitted). Clear and convincing evidence need not, however, “establish that 

it is certainly or unambiguously true.” State v. Vega, 228 Ariz. 24, 29 n.4, 

¶ 19 (App. 2011). 

¶8 The testimony of the Missouri officer, combined with other

documentary evidence regarding the Missouri incident, was sufficient to 

permit the trial court to find it “highly probable” the Missouri incident 

occurred and that Jean was involved. The trial court did not abuse its 

discretion when it also determined the Missouri incident was not too 

remote in time. “Although remoteness between the two incidents affects 

the weight to be given the testimony by the jury, it generally does not 

determine its admissibility.” Van Adams, 194 Ariz. at 416, ¶ 24. We have 

held that acts which occurred much more than eleven years prior to the 

charged offenses were not too remote. See State v. Weatherbee, 158 Ariz. 303, 

304-05 (App. 1988) (holding prior acts that occurred twenty-two years 

before trial were not too remote to be admitted at trial); State v. Salazar, 181 

Ariz. 87, 92 n.5 (App. 1995) (finding a prior act that occurred twenty years 

before the charged offense was relevant). The trial court did not abuse its

discretion in finding that the eleven years that elapsed between the 
STATE v. JEAN

Opinion of the Court

5

Missouri incident and the charged offenses did not render the Missouri 

incident too remote.

¶9 Regarding the danger of unfair prejudice, there is no question 

but that evidence of the Missouri incident was prejudicial to Jean. 

However,

not all harmful evidence is unfairly prejudicial. After all, 

evidence which is relevant and material will generally be 

adverse to the opponent. The use of the word “prejudicial”

for this class of evidence, while common, is inexact. 

“Prejudice,” as used in this way, is not the basis for exclusion 

under Rule 403.

State v. Schurz, 176 Ariz. 46, 52 (1993) (citations omitted). “[A]ll good

relevant evidence” is “adversely probative.” Id. “Unfair prejudice” is 

prejudice that could cause a jury to render a decision on an improper basis, 

“such as emotion, sympathy or horror.” Id.

¶10 The trial court did not abuse its discretion when it determined 

the probative value of the evidence of the Missouri incident was not 

substantially outweighed by the danger of unfair prejudice. Moreover, the 

trial court gave an instruction that directed the jury to consider the Missouri 

incident only as it might show Jean’s motive, intent, preparation, plan, 

knowledge, absence of mistake or accident. We presume juries follow their 

instructions. State v. Dunlap, 187 Ariz. 441, 461 (App. 1996). 

II. Motion to Suppress

¶11 Jean next argues the trial court erred when it denied his 

motion to suppress. We review de novo the ultimate legal question of 

whether the search violated Jean’s constitutional rights. See Adams, 197 

Ariz. at 572, ¶ 16. 

¶12 Jean does not directly challenge the constitutionality of the 

stop of the truck or the resulting search; instead, he argues the use of the 

GPS to monitor the truck constituted an illegal search. Jean argues that 

absent the information authorities obtained by monitoring the truck 

through the GPS, there would have been no stop, so that the evidence 

obtained therefrom was fruit of the poisonous tree. Jean also argues that 

GPS tracking of the truck over several days violated his reasonable 

expectation of privacy. 
STATE v. JEAN

Opinion of the Court

6

¶13 Jean relies upon the decisions in United States v. Jones, 132 S.Ct. 

945 (2012), and State v. Mitchell, 234 Ariz. 410 (App. 2014), to argue that the 

warrantless placement of a GPS to monitor an individual’s movements is 

an unlawful search under the Fourth Amendment. Jones held for the first 

time that the installation of a GPS on a vehicle constituted a trespass and 

the use of the GPS to monitor the vehicle’s movements constituted a search 

under the Fourth Amendment.4 Jones, 132 S.Ct. at 949. We relied upon Jones

in Mitchell, a case very similar to Jones. Mitchell, 234 Ariz. at 418, ¶ 26. 

¶14 The trial court found Jean did not own or have a possessory 

interest in the truck, and on that basis, held Jean had no standing to 

challenge the placement of the GPS because he had no “reasonable 

expectation of privacy in a vehicle that he was just a passenger in.” Jean 

argues on appeal, however, that as a co-driver, he had as much of a 

possessory interest in the truck as the defendants in Jones and Mitchell, 

neither of whom owned the vehicle they drove. 

¶15 The defendant in Jones did not own the vehicle at issue; it 

belonged to his wife, but he was “the exclusive driver.” Jones, 132 S.Ct. at 

946 and n.2. The defendant, therefore, had the rights of a bailee and 

standing to challenge the GPS. Id. Likewise, the defendant in Mitchell did 

not own the vehicle at issue, but he had permission from the owner to use 

the vehicle, sufficient to confer standing as in Jones. Mitchell, 234 Ariz. at 

412, 415, ¶¶ 3, 19. Just as in Jones, the defendant in Mitchell had the rights 

of a bailee. Id. at 415, ¶ 19. In neither Jones nor Mitchell was the owner 

within the vehicle and in operational control of the vehicle at the time of the 

stop.

¶16 In Mitchell, we held that “lawful possession” of a vehicle 

when the GPS is installed “is sufficient to confer upon a defendant standing 

to challenge GPS tracking” under Jones. 234 Ariz. at 416, ¶ 17. We explained 

that standard “is consistent with basic principles of tort law regarding 

trespasses.” Id. at ¶ 18. Under those principles, a bailor or a bailee of chattel 

could maintain a trespass; we concluded the same status confers standing 

to challenge a trespass and resulting search under Jones. Id.

 

4 Jones was decided after DPS officers placed the GPS on the truck in 

this case but before trial began. 
STATE v. JEAN

Opinion of the Court

7

¶17 The defendants’ rights as bailees in Jones and Mitchell gave 

them standing to challenge the warrantless placement of GPS devices on 

the vehicles.5 Jean, however, was not a bailee: 

To constitute a bailment there must be a delivery by the bailor 

and acceptance by the bailee of the subject matter of the 

bailment. It must be placed in the bailee’s possession, actual 

or constructive. There must be such a full transfer, actual or 

constructive, of the property to the bailee as to exclude the 

possession of the owner and all other persons and [g]ive the 

bailee for the time being the sole custody and control thereof.

Blair v. Saguaro Lake Dev. Co., 17 Ariz. App. 72, 74 (1972) (internal citations 

omitted) (quoting Freeman v. Myers Automobile Service, Co., 40 S.E.2d 365, 

366 (N.C. 1946)). 

¶18 Here, there is no evidence the owner of the truck made a “full 

transfer” of the truck to Jean, nor is there any evidence of a delivery and 

acceptance. There is no evidence the owner placed the truck in Jean’s actual 

or constructive possession so “as to exclude the possession of the owner 

and all other persons and give [Jean] for the time being the sole custody and 

control thereof.” Id. There is no evidence Jean ever had exclusive use of the 

truck nor evidence he ever had permission to drive the truck or actually 

drove the truck without the owner present. There is no evidence Jean ever 

possessed the keys to the truck. In sum, even if Jean may have occasionally 

operated the truck as a co-driver while in the owner’s presence, there is no 

evidence the owner did not reserve his right to possess and control the truck 

at all times.6 Therefore, there is no evidence that Jean was a bailee of the 

truck. State v. Orendain, 185 Ariz. 348, 352 (1996) overruled on other grounds 

(holding that a defendant driving codefendant’s vehicle lacked standing to 

assert Fourth Amendment challenge to the search of the vehicle when he

had neither possessory nor property interest in the vehicle).

 

5 Jones and Mitchell also found it significant that the defendants were 

the targets of the respective investigations. Jones, 132 S.Ct. at 947; Mitchell,

234 Ariz. at 411, ¶ 2. As noted above, DPS officers here had no idea Jean 

was in the truck until they stopped it.

6 While Jean unquestionably “controlled” the truck when he drove it 

with the owner beside him, we do not equate that type of control with the 

type of “control,” coupled with a possessory interest, necessary to establish 

a bailment.
STATE v. JEAN

Opinion of the Court

8

¶19 “[A] necessary predicate to the application of the ‘fruits’

doctrine” is that the search violated the constitutional rights of the person 

who challenges the legality of the search. State v. Super. Ct. (Treadaway), 119 

Ariz. 573, 581 (1978). “A person who is aggrieved by an illegal search and 

seizure only through the introduction of damaging evidence secured by a 

search of a third person’s premises or property has not had any of his 

Fourth Amendment rights infringed.” Rakas v. Ill., 439 U.S. 128, 134 (1978). 

Because Jean did not own the truck and did not otherwise have a possessory 

interest in it, he had no standing to challenge the placement of the GPS 

device on the truck. 

¶20 Finally, regarding Jean’s claim that use of the GPS violated 

his reasonable expectation of privacy, Jean had no reasonable expectation 

of privacy in his movements as a passenger or driver of the truck. It is well 

settled that a person travelling in a vehicle on public roads has no 

reasonable expectation of privacy in the person’s movements from one 

place to another. United States v. Knotts, 460 U.S. 276, 281 (1983). This court 

has held from this principle that there is no reasonable expectation of 

privacy that is infringed by GPS monitoring of a device placed on a vehicle, 

and that “[t]his is true particularly where the government’s monitoring is 

short-term.” State v. Estrella, 230 Ariz. 401, 404 (App. 2012). Given that 

authorities monitored the truck in which Jean was riding for only two days, 

we conclude he established no Fourth Amendment violation.

III. The Motion for a Mistrial

¶21 Jean argues the trial court erred when it denied his motion for 

mistrial after the owner of the truck referred, during his testimony, to other 

trips made to transport marijuana that were not part of the charged 

offenses. Jean objected when the truck’s owner first referred to other trips 

in which he and Jean transported marijuana. The trial court sustained the 

objection, granted Jean’s motion to strike the testimony and instructed the 

jury accordingly. 

¶22 The owner later testified “we” made “so many trips” from 

Atlanta and “we” usually stopped for fuel in Texas. Jean did not object, but 

he asked the court and the State to admonish the owner again to not 

mention unrelated trips. The State admonished the owner accordingly. 

Later in the owner’s testimony, when there was confusion as to whether he

and Jean made two trips to Tucson in one day as part of the charged 

offenses, the owner testified, “[w]e usually often did.” He further testified 

that “[i]t was [sic] so many trips that same way that they all kind of blurred 

together.”
STATE v. JEAN

Opinion of the Court

9

¶23 Jean again did not object, but stated that if this kept occurring 

he would move for a mistrial. The court again admonished the owner not 

to talk about anything outside the scope of the question. Later, when he 

explained the route he planned to take for the trip at issue, the owner

testified that “we always used to take a cutoff and make a round – around 

the weigh station from Arizona and New Mexico.” Jean moved for a 

mistrial based on the owner’s references to unrelated trips and the inference 

that Jean participated in those trips. The court denied the motion but 

instructed the jury to disregard the testimony regarding how “we always 

used to take” a certain route. 

¶24 The denial of a motion for mistrial is reviewed for abuse of 

discretion. State v. Murray, 184 Ariz. 9, 35 (1995). We will reverse only if 

the court’s decision was both improper and clearly prejudicial. Id. The 

trial court is in the best position to determine whether an incident calls for 

a mistrial because the court is aware of the “atmosphere of the trial, the 

manner in which the objectionable statement was made, and its possible 

effect it had on the jury and the trial.” State v. Koch, 138 Ariz. 99, 101 (1983);

State v. Brown, 195 Ariz. 206, 209, ¶ 12 (App. 1999). A mistrial is the most 

dramatic remedy, only appropriate when justice requires. State v. Lamar, 

205 Ariz. 431, 439, ¶ 40 (2003) (citation omitted).

¶25 The testimony at issue did not necessarily refer to other trips 

with Jean. The owner testified he had been involved in drug trafficking for 

several years and described his involvement in that trade before he met 

Jean. The owner also identified several other individuals he worked with 

when he transported marijuana by truck. The jury knew that over the 

course of several years, the owner had made a number of trips in which he 

transported marijuana by truck with individuals other than Jean. Finally, 

the court struck the references Jean expressly objected to and instructed the 

jury to disregard them. Again, we presume juries follow their instructions. 

Dunlap, 187 Ariz. at 461. Under these circumstances, the trial court did not 

abuse its discretion when it denied Jean’s motion for mistrial.
STATE v. JEAN

Opinion of the Court

10

CONCLUSION

¶26 Finding no error, we affirm Jean’s convictions and sentences.