AZ2: In a business records seizure, magistrate should take testimony on return of records

In a seizure of business records, the Arizona statute involved required that the magistrate take testimony on whether the documents should be returned when no forfeiture of the seized property is sought. In re Search Warrant, No. 08 SW 1417, 224 Ariz. 505, 233 P.3d 618 (Ariz. App. 2010):

P12 We agree with the essence of Franklin’s interpretation. Section 13-3922 clearly and unambiguously provides that a magistrate “shall proceed to take testimony” unless a forfeiture action relating to the same property interest “is or has been” filed. Thus, if such a forfeiture action is pending, the magistrate is precluded only from taking testimony. Nothing in the statute’s plain language suggests the magistrate also is precluded from deciding the motion on the papers. Despite neither citing supporting authority nor providing any analysis, the state argues this interpretation of the statute is “absurdly tortured.” We disagree. Because the language of § 13-3922 is clear, we need not examine either the statutory scheme as a whole or the statute’s context, subject matter, historical background, effects, consequences, spirit, or purpose. See Ross, 214 Ariz. 280, P 22, 151 P.3d at 1264.

P13 Accordingly, the trial court erred in dismissing Franklin’s motion to controvert. Moreover, we observe that the court may take testimony, if offered, relevant to Franklin’s motion as it relates to the seizure of his business records. Because the state has not sought forfeiture of those records, no “proceeding pursuant to chapter 39 of this title is or has been initiated” with respect to Franklin’s property interest in those records. § 13-3922(A). In light of our ruling, we need not address Franklin’s remaining arguments.