NOTICE: NOT FOR PUBLICATION.

UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT

AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE

ARIZONA COURT OF APPEALS 

DIVISION ONE

STATE OF ARIZONA, Respondent,

v.

JEREMY LYNN NELSON, Petitioner.

No. 1 CA-CR 13-0008 PRPC

Petition for Review from the Superior Court in Maricopa County

No. CR2010-165553-001

The Honorable Robert L. Gottsfield, Judge, Retired

REVIEW GRANTED; REMANDED

COUNSEL

Maricopa County Attorney’s Office, Phoenix

By Diane Meloche

Counsel for Respondent

Jeremy Lynn Nelson, Tucson

Petitioner Pro Se
STATE v. NELSON

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Donn Kessler delivered the decision of the Court, in 

which Judge Patricia K. Norris joined and Judge Maurice Portley specially 

concurred.

K E S S L E R, Presiding Judge:

¶1 Jeremy Lynn Nelson petitions this Court for review of the 

summary dismissal of his petition for post-conviction relief. Nelson 

claimed ineffective assistance of counsel (“IAC”) because his counsel 

allegedly failed to investigate, pursue, or advise him of a possible motion 

to suppress evidence prior to his pleading guilty. We conclude the 

superior court erred in determining that, at the time Nelson pled guilty, a

motion to suppress evidence based on an allegedly illegal, trespassory 

placement of a GPS device was barred as a matter of law. Accordingly,

we grant review and remand for an evidentiary hearing on Nelson’s IAC

claim. 

FACTUAL AND PROCEDURAL HISTORY

¶2 Nelson pled guilty to attempted fraudulent schemes and 

artifices, forgery, misconduct involving weapons, and possession of 

dangerous drugs. The superior court sentenced him to an aggregate term 

of thirteen years’ imprisonment for attempted fraud, forgery, and drug 

possession, and placed him on a consecutive term of four years’ probation 

for misconduct involving weapons. 

¶3 Nelson petitioned for post-conviction relief pursuant to 

Arizona Rule of Criminal Procedure 32.1(a), arguing that his trial counsel 

was ineffective by failing to investigate, pursue, or advise him about the 

prospects of a motion to suppress evidence obtained through warrantless 

GPS tracking. His claims are based on United States v. Jones, 132 S.Ct. 945 

(2012), for which certiorari had been granted and which was pending 

review when Nelson pled guilty. In Jones, the Supreme Court held that 

the government’s non-consensual and warrantless installation of a GPS 

device on a suspect’s vehicle for the purpose of monitoring the vehicle’s 

movements constitutes a search that ordinarily requires a warrant. 132 

S.Ct. at 949. In response to Nelson’s petition, the State argued that at the 

time Nelson pled guilty, warrantless GPS tracking did not implicate the 
STATE v. NELSON

Decision of the Court

3

Fourth Amendment as a matter of law, that trial counsel is not expected to 

anticipate future changes in the law, and therefore it was not 

unreasonable for trial counsel to not have investigated or advised Nelson 

about the issue.

¶4 After additional briefing, as discussed below, the superior 

court summarily dismissed Nelson’s petition, noting that the parties had 

advised the court that no evidentiary hearing was needed “as basically a 

question of law is presented.” The court concluded that “no colorable 

claim [was] presented by trial counsel failing to anticipate what would 

have been a major change in the law,” and that “[i]t was not unreasonable 

for defense counsel to assume, if the issue came to mind at all, that 

existing circuit court authority was overwhelmingly contrary to the view 

that the placement of a GPS device constituted a search.” 

¶5 Nelson now seeks review of the summary dismissal and 

asks us to remand the matter for an evidentiary hearing. We have 

jurisdiction pursuant to Arizona Rule of Criminal Procedure 32.9(c).

STANDARD OF REVIEW

¶6 We review an order summarily dismissing a petition for 

post-conviction relief for an abuse of discretion. State v. Bennett, 213 Ariz. 

562, 566, ¶ 17, 146 P.3d 63, 67 (2006). “A trial court abuses its discretion if 

it misapplies the law or exercises its discretion based on incorrect legal 

principles,” State v. Slover, 220 Ariz. 239, 242, ¶ 4, 204 P.3d 1088, 1091 

(App. 2009), or if it “predicates its decision upon irrational bases,” State v. 

Fields, 196 Ariz. 580, 582, ¶ 4, 2 P.3d 670, 672 (App. 1999) (citation 

omitted).

DISCUSSION 

¶7 As a preliminary matter, based upon the facts in this case, 

Nelson is not precluded from arguing for a remand to hold an evidentiary 

hearing even though the parties had advised the superior court that such a 

hearing was not needed. After receiving the State’s response and Nelson’s 

reply to the petition, the superior court requested supplemental briefing 

on the law governing warrantless GPS surveillance at the time Nelson 

pled guilty. The supplemental briefs, therefore, addressed only an issue 

of law. After submitting the supplemental briefs, the parties advised the 

superior court that no evidentiary hearing was needed because the

question before the court was whether then-existing law would have 
STATE v. NELSON

Decision of the Court

4

made such a suppression motion futile.1 In context, then, we understand 

the parties’ advisement as merely recognizing that trial counsel would 

have had no reason to advise Nelson about the suppression issue if thenbinding law foreclosed it. If the superior court had concluded legal 

support existed for such a motion, an evidentiary hearing would then be

needed to uncover the facts necessary to making an ultimate 

determination on Nelson’s IAC claim.2 Accordingly, we reach the merits 

of Nelson’s petition for review.

I. Standard for Obtaining an Evidentiary Hearing

¶8 “A trial court may summarily dismiss a [petition for postconviction relief] only if it finds no ‘material issue of fact or law exists 

which would entitle the defendant to relief.’” State v. Bowers, 192 Ariz. 

419, 422, ¶ 10, 966 P.2d 1023, 1026 (App. 1998) (citation omitted); see also 

Ariz. R. Crim. P. 32.6(c). A defendant is entitled to an evidentiary hearing, 

however, if the petition presents a colorable claim—“that is a claim which, 

if defendant’s allegations are true, might have changed the outcome.” 

State v. Watton, 164 Ariz. 323, 328, 793 P.2d 80, 85 (1990); see also Ariz. R. 

Crim. P. 32.6(c) and 32.8(a). “[W]hen doubt exists, a hearing should be 

held to allow the defendant to raise the relevant issues, to resolve the 

matter, and to make a record for review.” Bowers, 192 Ariz. at 422, ¶ 10, 

966 P.2d at 1026 (quoting State v. D’Ambrosio, 156 Ariz. 71, 73, 750 P.2d 14, 

16 (1988) (internal quotation marks omitted)).

 

1 The court’s minute entry also indicates that the parties said there was no 

issue surrounding whether trial counsel advised Nelson of the prospects 

of such a motion. We understand this to mean only that the truth of 

Nelson’s factual allegations was not the determinative issue for purposes 

of summary dismissal because, at this stage in the proceedings, the court 

takes Nelson’s factual allegations as true. See State v. McCall, 160 Ariz. 

119, 129, 770 P.2d 1165, 1175 (1989).

2 For example, the court might need to determine: (1) whether the facts

surrounding the GPS tracking in this case would have supported such a 

motion; (2) what consideration, if any, Nelson’s trial counsel gave to the 

issue; (3) the nature and extent of the evidence allegedly acquired through 

the warrantless GPS surveillance and to which counts that evidence 

related; (4) whether counsel advised Nelson of the possibility of a 

suppression motion and the risks of doing so in light of the plea; and, if 

not, (6) whether Nelson would, in fact, have rejected the plea had he been 

advised about the merits, odds of success, and risks of pursuing such a 

motion.
STATE v. NELSON

Decision of the Court

5

¶9 To state a colorable IAC claim, a defendant must show that 

counsel’s performance fell below objectively reasonable standards and 

that the deficient performance prejudiced the defendant. Strickland v. 

Washington, 466 U.S. 668, 687 (1984). “To establish deficient performance 

during plea negotiations, a petitioner must prove that the lawyer either (1) 

gave erroneous advice or (2) failed to give information necessary to allow 

the petitioner to make an informed decision whether to accept the plea.” 

State v. Donald, 198 Ariz. 406, 413, ¶ 16, 10 P.3d 1193, 1200 (App. 2000). To 

show prejudice, a defendant must demonstrate that there is a “reasonable 

probability that, but for counsel’s unprofessional errors, the result of the 

proceeding would have been different.” Strickland, 466 U.S. at 694. In the 

context of a guilty plea, a defendant can establish prejudice by showing 

that, absent counsel’s erroneous advice, he would not have waived his 

right to trial by entering a plea. Hill v. Lockhart, 474 U.S. 52, 59 (1985).

II. The Basis for the Superior Court’s Summary Dismissal

¶10 The superior court found that Nelson pled “the necessary 

condition that he would have rejected the plea and requested a 

suppression hearing had he known there was a viable issue on the 

constitutionality of placing a warrantless GPS device on [h]is vehicle . . . .” 

In other words, the superior court determined that Nelson pled sufficient 

facts to avoid summary dismissal based on the prejudice prong of the 

Strickland test. The superior court is in the best position to determine 

whether Nelson’s allegations would have changed his decision to accept 

the plea. See State v. Adamson, 136 Ariz. 250, 265, 665 P.2d 972, 987 (1983)

(“The trial judge was in a much better position than we are to determine 

the weight to be given the defendant’s claims in his petition and whether 

or not the allegations taken as true would change the verdict.”). Given 

that holding, we limit our review to the court’s conclusion that Nelson’s 

petition failed to state a sufficient legal basis for counsel’s allegedly 

deficient performance (i.e., counsel’s alleged failure to investigate or

advise him of a motion to suppress based on the GPS tracking).

¶11 Generally, absent a compelling tactical reason, counsel 

renders deficient performance by failing to move “to suppress evidence 

obtained through a questionably legal search.” State v. Fillmore, 187 Ariz. 

174, 181, 927 P.2d 1303, 1310 (App. 1996). We understand the court’s 

reasoning to be that as a matter of law any motion to challenge the legality 

of warrantless GPS tracking would have been frivolous. But, under thenexisting law such a motion would not have been frivolous.
STATE v. NELSON

Decision of the Court

6

III. Then-Existing Law Did Not Preclude a Motion to Suppress 

Evidence Obtained Through Warrantless GPS Surveillance

¶12 “A fair assessment of attorney performance requires that 

every effort be made to eliminate the distorting effects of hindsight, to 

reconstruct the circumstances of counsel’s challenged conduct, and to 

evaluate the conduct from counsel’s perspective at the time.” Strickland, 

466 U.S. at 689. Failure to predict future changes in the law is not 

ineffective assistance because “[c]lairvoyance is not a required attribute of 

effective representation.” State v. Febles, 210 Ariz. 589, 597, ¶ 24, 115 P.3d 

629, 637 (App. 2005) (citation omitted). Accordingly, in evaluating 

whether trial counsel’s actions—or lack thereof—presented a colorable 

IAC claim, we limit ourselves to the legal landscape as it existed when 

Nelson pled guilty.

¶13 As we have recently explained in State v. Mitchell, 1 CA-CR 

13-0339, slip op. at *14, ¶ 31 (Ariz. App. Apr. 21, 2014), an opinion issued 

after the superior court denied Nelson’s petition, the law governing GPS 

surveillance around the time Nelson pled guilty was unsettled. No 

binding Arizona authority addressed GPS surveillance or otherwise 

authorized law enforcement to attach a GPS device to private property, 

without a warrant or permission from the property owner, and use the 

device to track and aggregate data on a person’s movements. Nor did any

United States Supreme Court decision directly address GPS tracking, 

including United States v. Knotts, 460 U.S. 276 (1983), a case the State relied 

on in the superior court and here to argue to the contrary. 

¶14 As we explained in Mitchell, Knotts did not address GPS 

surveillance, nor did it address a situation in which law enforcement 

attached a tracking device to private property without permission from 

the property owner. Mitchell, 1 CA-CR 13-0339, slip op. at *14-15, ¶ 31. 

Further, Knotts left open the question of whether more dragnet 

surveillance techniques would implicate the Fourth Amendment. 460 U.S. 

at 284. Thus, Knotts did not preclude as a matter of law a meritorious 

motion to suppress evidence obtained through warrantless GPS tracking. 

See State v. Allen, No. 2011-L-157, 2013 WL 501744, at *4, ¶ 22 (Ohio Ct. 

App. Feb. 8, 2013) (reaching similar conclusion, noting that before Jones no 

Ohio Supreme Court or United States Supreme Court authority expressly 

addressed GPS tracking, and finding that counsel rendered ineffective 

assistance by not moving to suppress evidence obtained through GPS 

surveillance).
STATE v. NELSON

Decision of the Court

7

¶15 The legal landscape at the time of Nelson’s plea shows that 

courts were divided on the legality of GPS surveillance. Although the 

predominate view among federal circuit courts was that GPS surveillance 

did not implicate the Fourth Amendment, see United States v. Hernandez, 

647 F.3d 216 (5th Cir. 2011); United States v. Cuevas-Perez, 640 F.3d 272 (7th 

Cir. 2011), vacated in light of Jones, 132 S.Ct. 1534 (2012); United States v. 

Pineda-Moreno, 591 F.3d 1212 (9th Cir. 2010), vacated in light of Jones, 132 

S.Ct. 1533 (2012); United States v. Marquez, 605 F.3d 604 (8th Cir. 2010); 

United States v. Garcia, 474 F.3d 994 (7th Cir. 2007), this view was not 

unanimous. In United States v. Maynard, 615 F.3d 544, 563, 568 (D.C. Cir. 

2010)—the case that ultimately became Jones—the Federal Circuit Court 

for the District of Columbia concluded that the warrantless placement and 

use of a GPS device to monitor a suspect’s vehicle without permission of 

the owner violated the Fourth Amendment under the reasonableexpectation-of-privacy test announced in Katz v. United States, 389 U.S. 

347, 360-61 (1967) (Harlan, J., concurring). Furthermore, several state 

courts had concluded that GPS tracking violated state constitutional 

privacy protections. See State v. Holden, 54 A.3d 1123 (Del. Super. Ct. 

2010); Commonwealth v. Connolly, 913 N.E.2d 356 (Mass. 2009); People v. 

Weaver, 909 N.E.2d 1195 (N.Y. 2009); State v. Jackson, 76 P.3d 217 (Wash. 

2003). As a result, there was authority to support a motion to suppress 

evidence obtained through warrantless GPS surveillance. See Allen, No. 

2011-L-157, 2013 WL 501744, at *4, ¶ 21 (“Taken as a whole, of the various 

appellate courts that considered the ‘GPS’ issue . . . a majority held that it 

was unnecessary for the police officers to obtain a search warrant . . . 

because use of a tracking device does not constitute a search. However, 

the issue had not been the subject of extensive litigation, especially in the 

state of Ohio. Furthermore, there was authority favorable to appellant on 

the issue.”).3 

¶16 Accordingly, whether Nelson’s trial counsel should have 

investigated or advised Nelson of a possible motion to suppress presents a 

colorable IAC claim. In so holding, we do not suggest that counsel is 

expected as a matter of law to anticipate future changes in the law or to be 

 

3 Moreover, the weight of circuit court authority did not preclude a 

challenge to GPS surveillance in Arizona because federal circuit court 

decisions, although persuasive, are not binding on Arizona courts. See

Planning Grp. of Scottsdale v. Lake Mathews Mineral Props., Ltd., 226 Ariz. 

262, 267, ¶ 22, 246 P.3d 343, 348 (2011); State v. Montano, 206 Ariz. 296, 297 

n.1, ¶ 1, 77 P.3d 1246, 1247 n.1 (2003).
STATE v. NELSON

Decision of the Court

8

cognizant of every case pending review.4 Rather, then-existing law was 

unsettled and, therefore, the issue of warrantless GPS surveillance was 

open to non-frivolous challenges.

IV. Nelson is Entitled to an Evidentiary Hearing

¶17 That Nelson was offered a plea in this case might suggest 

that strategic reasons existed for not pursuing such a motion.

“[D]isagreements in trial strategy will not support a claim of [IAC], 

provided the challenged conduct has some reasoned basis.” State v. 

Nirschel, 155 Ariz. 206, 208, 745 P.2d 953, 955 (1987). There is generally a 

“‘strong presumption’ . . . that counsel’s actions were choices made for 

strategic or tactical reasons.” State v. Santanna, 153 Ariz. 147, 150, 735 P.2d 

757, 760 (1987). It does not appear from this limited record, however, that 

the superior court based its summary dismissal on a determination that 

trial counsel’s performance was justified by a strategic decision. 

¶18 At this stage of the proceedings, we must assume that the 

facts alleged in Nelson’s petition are true. State v. McCall, 160 Ariz. 119, 

129, 770 P.2d 1165, 1175 (1989) (“A colorable claim exists when the facts 

alleged by the defendant in support of his claim, if taken as true, would 

entitle the defendant to relief.” (emphasis added)). Given this 

presumption, an evidentiary hearing should have been conducted to 

permit Nelson to present his facts and to hear from trial counsel in 

resolving the petition. 

CONCLUSION

¶19 The superior court found Nelson pled sufficient facts to 

avoid summary dismissal based on lack of prejudice, but erroneously 

determined that his petition failed as a matter of law because then-existing 

law precluded any motion to suppress evidence obtained through GPS 

surveillance. Accordingly, for the foregoing reasons we remand for an 

evidentiary hearing. We emphasize, however, that at this stage we do not 

and cannot conclude that counsel rendered ineffective assistance. We 

 

4 Knowledge of cases pending before an appellate court that would 

control an issue facing a client can be one factor to consider in IAC claims, 

but any duty to be aware of those cases would be fact-specific. Given the 

lack of any evidentiary hearing in this case to develop the facts underlying 

the GPS surveillance and the reasons no suppression motion was pursued

precludes any conclusion on counsel’s effectiveness for the IAC claim.
STATE v. NELSON

Decision of the Court

9

merely conclude that Nelson submitted a colorable claim that justifies an 

evidentiary hearing on the issue. See Fillmore, 187 Ariz. at 182, 927 P.2d at 

1311.

P O R T L E Y, Judge, specially concurring:

¶20 Although I agree that this matter should be remanded for an 

evidentiary hearing on the ineffective assistance of counsel claim, I write 

separately. I see the issue as simply whether the trial counsel advised her 

client about the state of the law as it then existed, given the factual 

information she had about the charges, including the police use of GPS, as 

well as the plea offer, and whether Nelson wanted to proceed with the 

proffered offer. 

¶21 As we noted, the parties advised the superior court that no 

evidentiary hearing was necessary because the issue could be resolved as 

a matter of law. I am confident that once the superior court hears the 

evidence, the court can apply Strickland to resolve Nelson’s claim of 

ineffective assistance of counsel. As a result, I see no need for footnotes 2 

and 4.