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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

KYLE LANCE MILLER, Appellant.

No. 1 CA-CR 19-0315

Appeal from the Superior Court in Maricopa County

No. CR2017-141688-001

The Honorable William Wingard, Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Casey D. Ball

Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix

By Scott L. Boncoskey

Counsel for Appellant

FILED 7-30-2020
STATE v. MILLER

Decision of the Court

2

MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the decision of the Court, in which 

Presiding Judge James B. Morse Jr. and Judge Maria Elena Cruz joined.

M c M U R D I E, Judge:

¶1 Kyle Miller appeals his conviction and sentence for 

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

FACTS1 AND PROCEDURAL BACKGROUND

¶2 In September 2017, officer Jeffrey Middleton stopped Miller

for changing lanes without signaling, having an inadequate muffler, and

driving with excessively high handlebars. Detective Geoff Francetic arrived 

at the scene while Miller was still on his motorcycle, and his body camera 

captured his interactions with Miller. The officers received reports of “loud 

sounds” and “some type of banging” in the area at the time of the stop. The 

noises continued while Miller was still on his bike. Rather than a driver’s 

license, Miller gave Middleton an identification card. So, the officer ordered

Miller off the motorcycle. Middleton then told Miller he was going to 

conduct a pat-down for weapons.

¶3 During the pat-down, Middleton felt something in Miller’s 

pocket. When asked what it was, Miller told the officer it was a paper towel.

Middleton asked if he could remove it, and Miller said, “Go ahead.”

Middleton discovered a marijuana joint inside the paper towel and arrested 

Miller. Another officer who arrived at the scene following the initial stop 

searched Miller’s backpack after the arrest. In the backpack, the officer

found a loaded firearm.

¶4 Grand jurors indicted Miller for misconduct involving 

weapons (“Count One”) and possession of marijuana (“Count Two”). The 

State designated Count Two as a misdemeanor, and the parties agreed to 

sever the counts, holding a jury trial for Count One, to be followed by a

1 We view the facts in the light most favorable to upholding the verdict 

and resolve all reasonable inferences against the defendant. State v. 

Mendoza, 248 Ariz. 6, 11, ¶ 1, n.1 (App. 2019).
STATE v. MILLER

Decision of the Court

3

bench trial for Count Two. At no time did Miller move to suppress the 

evidence related to the marijuana or firearm.

¶5 Jurors found Miller guilty as charged on Count One, and the 

superior court found Miller guilty as charged on Count Two. The court 

suspended the imposition of Miller’s sentence for both counts and placed 

him on two years’ supervised probation. Miller appealed his conviction and 

sentence for Count One, and we have jurisdiction under Article 6, Section 

9, of the Arizona Constitution and Arizona Revised Statutes (“A.R.S.”) 

sections 12-120.21(A)(1), 13-4031, and -4033(A)(1).

DISCUSSION

¶6 Miller contends the officers’ discovery of the firearm violated 

the Fourth Amendment of the United States Constitution because it was 

derivative of a pat-down unsupported by reasonable suspicion that he was 

armed and dangerous. See State v. Primous, 242 Ariz. 221, 223, ¶ 11 (2017)

(“[T]he Fourth Amendment prohibits any search of an individual unless the 

police have a reasonable belief that crime is afoot and the individual is 

armed and dangerous.”). Consequently, Miller asserts the court committed 

fundamental error by admitting his firearm in evidence at the trial. He 

argues that State v. Newell, 212 Ariz. 389, 398, ¶ 34 (2006), which held that 

an appellate court may review suppression arguments first raised on 

appeal for fundamental error, controls our review of this issue. Accord State 

v. Canez, 202 Ariz. 133, 151, ¶ 51 (2002) (reviewing suppression issue first 

raised on appeal for fundamental error), superseded by rule on other 

grounds as stated in State v. Valenzuela, 239 Ariz. 299, 303, ¶ 11, n.1 (2016). 

Further, he argues that our supreme court’s subsequent decision in State v. 

Bush, 244 Ariz. 575, 588, ¶ 51 (2018), which held that a defendant forfeited 

the right to challenge the admissibility of a confession if it was not raised in 

the superior court, does not control our decision because it preceded State 

v. Escalante, 245 Ariz. 135, 140, ¶ 12 (2018) (describing fundamental-error 

analysis), and is distinguishable from the facts here because “the rules upon 

which its holding was based” have since changed. Miller also argues the 

record is sufficiently developed to review his suppression argument for 

fundamental error. We disagree.

¶7 Generally, “[i]ssues concerning the suppression of evidence 

which were not raised in the trial court are waived on appeal.” State v. Tison,

129 Ariz. 526, 535 (1981); see also State v. West, 176 Ariz. 432, 440 (1993) (“In 

fact-intensive inquiries on motions to suppress, th[is] court is not obliged to 

consider new theories . . . .”), overruled in part on other grounds by State v. 

Rodriguez, 192 Ariz. 58, 64, n.7 (1998). But our supreme court has stated that 
STATE v. MILLER

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we may “review a suppression argument that is raised for the first time on 

appeal for fundamental error.” Newell, 212 Ariz. at 398, ¶ 34. In this case, 

however, a fundamental-error review is made impossible by Miller’s failure 

to move for suppression below.

¶8 Before a finding of fundamental error can be made, it must be 

apparent that the superior court committed error in some aspect of the

proceedings. State v. Thomas, 130 Ariz. 432, 436 (1981). “If it is determined 

that error occurred, the prejudicial nature of the unobjected-to error must 

[then] be evaluated in light of the entire record.” Id. Enforcement of our 

waiver standards is especially appropriate in the context of a motion to 

suppress because, in such cases, our review for error is limited to the record 

presented at the hearing on that motion. State v. Lietzau, 248 Ariz. 576, 579,

¶ 8 (2020) (“[W]e consider only the evidence presented at the suppression 

hearing . . . .”); State v. Peoples, 240 Ariz. 244, 247, ¶ 7 (2016); State v. 

Rojo-Valenzuela, 237 Ariz. 448, 452, ¶ 15, n.2 (2015) (“We reiterate that 

review of a ruling on a motion to suppress is limited to the evidence

presented at the suppression hearing.”); State v. Moore, 222 Ariz. 1, 7, ¶ 17 

(2009) (“A trial court ruling on a motion to suppress is reviewed based 

solely on the evidence presented at the suppression hearing.”); State v. 

Estrella, 230 Ariz. 401, 404, ¶ 9, n.1 (App. 2012).

¶9 Likewise, we will not speculate what evidence might have 

been presented at a hearing on a motion to suppress. State v. Brita, 158 Ariz. 

121, 124 (1988) (refusing to address suppression ruling on an alternative 

basis not litigated in superior court because hearing “might well have taken 

a decidedly different twist”); see also Estrella, 230 Ariz. at 404, ¶ 9, n.1 (in the 

absence of suppression hearing ability to review issue is limited); State v. 

Johnson, 1 CA-CR 18-0735, 2020 WL 639192, at *4, ¶ 21 (Ariz. App. Feb. 11, 

2020) (mem. decision); State v. Smith, 2 CA-CR 2016-0107, 2017 WL 1376354, 

at *3, ¶¶ 9–13 (Ariz. App. Apr. 17, 2017) (mem. decision). As noted by our 

supreme court:

We disagree with the court of appeals’ conclusion that an 

appellate court is freer to reverse on issues raised for the first 

time on appeal than it would be on issues presented and 

litigated in the trial court. It is particularly inappropriate to 

consider an issue for the first time on appeal where the issue 

is a fact-intensive one.

Brita, 158 Ariz. at 124.
STATE v. MILLER

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¶10 Miller’s reliance on Newell and Canez is misplaced. In both of 

those cases, the defendants moved to suppress evidence, and the superior 

court held a suppression hearing. Newell, 212 Ariz. at 398, ¶ 34; Canez, 202 

Ariz. at 151, ¶ 53. In both cases, our supreme court found the record 

sufficiently developed to determine that no error had occurred in rejecting 

the fundamental-error claim. Newell, 212 Ariz. at 398, ¶¶ 33–35; Canez, 202 

Ariz. at 150–52, ¶¶ 50–57; see State v. Henderson, 210 Ariz. 561, 567, ¶ 19

(2005) (“burden of persuasion” shifts to a defendant in fundamental-error 

review to discourage him “from ‘tak[ing] his chances on a favorable verdict, 

reserving the “hole card” of a later appeal on [a] matter that was curable at 

trial, and then seek[ing] appellate reversal.’” (alterations in original) 

(quoting State v. Valdez, 160 Ariz. 9, 13–14 (1989), abrogated on other grounds 

by Krone v. Hotham, 181 Ariz. 364, 366–67 (1995))); cf. State v. Smith, 114 Ariz. 

415, 419 (1977) (trial court not required to determine the voluntariness of 

confession sua sponte).

¶11 Here, because Miller did not move to suppress the evidence, 

there is no suppression hearing, and the court made no findings of fact 

related to the pat-down and subsequent arrest; and very few facts on that 

point were adduced at trial. We are therefore left with little or no evidence 

about the officer’s mental state for requesting a pat-down.

2 And we cannot 

say with any certainty what evidence might have been adduced at a hearing 

on a motion to suppress. Indeed, such a hearing might take “a decidedly 

different twist” from the trial testimony currently before us. Brita, 158 Ariz. 

at 124. To the extent we have the discretion to review a suppression issue 

in a case where there was not a suppression hearing, we decline to exercise 

that discretion here.

2 Although the officer was asked at the bench trial, “Why did you do 

the pat-down?” and the State produced body-camera footage, the State was 

not addressing a suppression issue. Because Miller did not move to 

suppress the evidence, the State did not have an opportunity to elicit 

answers to meaningful follow-up questions. Likewise, the video footage 

did not capture the mental state of the officer and therefore does not allow 

us to review the reasonableness of his beliefs regarding whether Miller was 

armed and dangerous.
STATE v. MILLER

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CONCLUSION

¶12 We affirm Miller’s conviction and sentence.