AZ: Defense should get discovery of victim’s GPS to try to make a defense

The defendant here sought discovery of the alleged victim’s GPS information from his car in an effort to prove someone else was involved in the crime. The court concludes that this is private action (although enforced by court) and the probable cause standard isn’t required. Instead, “substantial probability” is required. The court has to balance the rights of the victim under the Victim’s Bill of Rights with the defense right to put on a defense. Draper v. Gentry, 2023 Ariz. LEXIS 161 (July 31, 2023):

¶1 In this case, we establish the standard a defendant must satisfy to compel extraction of GPS data by the defendant’s third-party agent from a crime victim’s automobile for in camera inspection by the trial court. In doing so, we seek to preserve the defendant’s constitutional right to present a complete defense in light of the crime victim’s rights under the Victims’ Bill of Rights, Fourth Amendment, and the privacy protection of article 2, section 8 of the Arizona Constitution.

. . .

¶36 Thus, applying the “substantial probability” standard in the direct disclosure context, a defendant is entitled to discovery from a victim if the defendant seeks evidence of constitutional dimension (which is necessary to vindicate the defendant’s constitutional rights) and the defendant establishes that the requested discovery is very likely to contain such evidence.

¶37 Although we observed in Vanders II that the substantial probability standard is usually very difficult to satisfy, 251 Ariz. at 119 ¶ 26, the trial court may determine here that a substantial probability exists that the requested GPS data contains precisely the location evidence necessary to establish a third-party defense. If so, Nez would establish a need of constitutional dimension for the sought evidence and a substantial probability that the requested discovery will procure such evidence, to which Draper’s VBR interests must yield.

¶38 To be clear, the trial court, in all circumstances, must take whatever precautions it can to protect the privacy rights at stake. It will always be the preferred course of action that an entity other than the defendant’s agent extract the data and provide it to the court for in camera review. However, where that is impossible, should the trial court determine that a defendant satisfies the substantial probability showing, it should still apply all possible precautions to safeguard the victim’s rights.