The state didn’t raise the good faith exception in the trial court, but the court applies the “we can affirm on any ground” rule to apply it anyway. State v. Weakland, 2017 Ariz. App. LEXIS 202 (Nov. 28, 2017):
P9 Weakland argues first that the state failed to raise the good-faith exception in the trial court, and has therefore waived any argument that it should apply. But “[w]e are required to affirm a trial court’s ruling if legally correct for any reason and, in doing so, we may address the state’s arguments to uphold the court’s ruling even if those arguments otherwise could be deemed waived by the state’s failure to argue them below.” State v. Boteo-Flores, 230 Ariz. 551, ¶ 7, 288 P.3d 111 (App. 2012).
So, what they are saying is that the state prosecutor can wander into a courtroom, do nothing, and the defense still lose even though the state didn’t give a whit about making a record or preserving any issues for appellate review. What happens when the record is incomplete on the “alternative ground”? In the last 14½ years of writing this blog, I’ve seen cases decided on alternative ground where it seemed (I didn’t have the record to tell) from the recitation of facts or an actual dissent that the state was able to gain affirmance on the alternate ground rationale without it even making an adequate record. If the state made a record, so be it. If it didn’t they should be treated as defaulters like courts are so willing to do to defendants. Appellate adjudication should be treated as a game where the defense loses for manufacturer procedural default and the state never defaults. It’s happened to me before and it will happen again. Don’t be surprised, but be vigilant to these arguments.