State v. Boteo–Flores, CR–11–0180–PR.

• Decision Date: 03 July 2012
• Docket Number: No. CR–11–0180–PR.,CR–11–0180–PR.
• Citation: 230 Ariz. 105,280 P.3d 1239
• Parties: The STATE of Arizona, Appellee, v. Nelson Ivan BOTEO–FLORES, Appellant.
• Court: Arizona Supreme Court

230 Ariz. 105

280 P.3d 1239

The STATE of Arizona, Appellee,

v.Nelson Ivan BOTEO–FLORES, Appellant.

No. CR–11–0180–PR.

Supreme Court of Arizona.

July 3, 2012.

Thomas C. Horne, Arizona Attorney General, Phoenix, By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation, Amy Thorson, Assistant Attorney General, Tucson, Attorneys for State of Arizona.

Robert J. Hirsh, Pima County Public Defender, By Lisa M. Hise, Deputy Public Defender, Tucson, Attorney for Nelson Ivan Boteo–Flores.

OPINION

BRUTINEL, Justice.

¶ 1 Nelson Boteo–Flores was detained by police during a stolen vehicle investigation. We consider here whether a lawful investigative stop had become a de facto arrest before Boteo–Flores confessed to the crime. Based on the totality of the circumstances, we find a de facto arrest.

I. FACTS AND PROCEDURAL HISTORY

¶ 2 Tucson police officers went to an apartment complex and saw a black pickup truck matching the description of a stolen vehicle.^* The officers took up surveillance positions to watch the truck and the apartment complex driveway.

¶ 3 A maroon car pulled into the driveway of the complex. Its lone occupant was the driver, who was talking on a cell phone and then used binoculars to look up and down the street a few times before driving away. A few minutes later the car returned, this time with three occupants, who the officer could not identify. The car drove to the back of the complex and out of sight.

¶ 4 Several minutes later, Boteo–Flores walked down the driveway, stood at the edge of the street, and looked up and down the street several times. The person who had driven the car then drove the black pickup truck from the complex. As he approached the street, the driver slowed and shouted to Boteo–Flores, who did not respond. All but one of the surveilling officers unsuccessfully pursued the truck; it was later found unoccupied.

¶ 5 While the pursuit was underway, the remaining officer approached Boteo–Flores. Because there was at least one other person unaccounted for from the maroon car and the officer did not know if Boteo–Flores was armed, the officer handcuffed him. He did not frisk Boteo–Flores or ask him if he had a weapon.

¶ 6 After handcuffing Boteo–Flores, the officer advised him of his Miranda rights and began questioning him. Shortly thereafter, a police unit returned and the officers called an auto theft detective to assist with the investigation. Boteo–Flores was left handcuffed and standing by a police car for at least fifteen minutes, until the detective arrived. The record does not reveal what the other officers were doing during this time or why Boteo–Flores remained handcuffed.

¶ 7 After arriving, the detective was briefed by the officers at the scene for another fifteen minutes. He then advised Boteo–Flores of his Miranda rights and began interviewing him. The detective arrested Boteo–Flores based on his admissions during the interview.

¶ 8 Boteo–Flores was indicted for facilitating the theft of a means of transportation, a class six felony. He moved to suppress his statements, arguing that his initial detention was not supported by reasonable suspicion and, alternatively, that the initial detention had become a de facto arrest unsupported by probable cause before he was interrogated. The State countered that reasonable suspicion supported the stop and that, although there was no probable cause to arrest until he made incriminating statements, the detention never became a de facto arrest. After an evidentiary hearing, the trial court denied the motion. A jury found Boteo–Flores guilty, and the trial court sentenced him to prison for the presumptive term of 1.75 years.

¶ 9 The court of appeals affirmed the conviction and sentence. State v. Boteo–Flores, 2 CA–CR 10–0106, 2011 WL 1379805 (Ariz.App. Apr.12, 2011) (mem. decision). The court determined that the record supported “the [trial] court's finding that the officer had a reasonable, articulable suspicion that Boteo–Flores was involved in criminal activity.” Id. at *2 ¶ 8. Although the court deemed it a “close question” whether a de facto arrest had thereafter occurred, it concluded that the trial “court did not abuse its discretion in determining Boteo–Flores was not under arrest” because “[t]he officer acted reasonably to protect his own safety and to prevent Boteo–Flores from fleeing, and he diligently pursued the purpose of the stop.” Id. at *3 ¶ 12.

¶ 10 We granted review to consider relevant factors in determining when a lawful detention becomes a de facto arrest, an issue of statewide importance. We have jurisdiction pursuant to Article 6, Section 5(3) of the Arizona Constitution and A.R.S. § 12–120.24 (2003).

II. DISCUSSION

¶ 11 Police officers may briefly detain an individual who they have reasonable suspicion to believe is involved in a crime. Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In assessing the reasonableness of a Terry stop, we examine “(1) whether the facts warranted the intrusion on the individual's Fourth Amendment rights, and (2) whether the scope of the intrusion was reasonably related to the circumstances which justified the interference in the first place.” State v. Jarzab, 123 Ariz. 308, 310, 599 P.2d 761, 763 (1979) (internal citation omitted); see Terry, 392 U.S. at 20, 88 S.Ct. 1868. A valid Terry stop, however, can later become a de facto arrest. See State v. Blackmore, 186 Ariz. 630, 633–34, 925 P.2d 1347, 1350–51 (1996). “Whether an illegal arrest occurred is a mixed question of fact and law” that we review de novo. Id. at 632, 925 P.2d at 1349.

¶ 12 Boteo–Flores first argues that the officer lacked reasonable suspicion to detain him. Reasonable suspicion requires “a particularized and objective basis for suspectingthat a person is engaged in criminal activity.” State v. O'Meara, 198 Ariz. 294, 295 ¶ 7, 9 P.3d 325, 326 (2000). Officers cannot act on a mere hunch, State v. Richcreek, 187 Ariz. 501, 505, 930 P.2d 1304, 1308 (1997), but seemingly innocent behavior can form the basis for reasonable suspicion if an officer, based on training and experience, can “perceive and articulate meaning in given conduct[,] which would be wholly innocent to the untrained observer.” Brown v. Texas, 443 U.S. 47, 52 n. 2, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979). The totality of the circumstances, not each factor in isolation, determines whether reasonable suspicion exists. See United States v. Arvizu, 534 U.S. 266, 274–75, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (noting that Terry forbids a “divide-and-conquer analysis”); O'Meara, 198 Ariz. at 296 ¶ 10, 9 P.3d at 327.

¶ 13 We agree with the courts below that the officer had reasonable suspicion to stop Boteo–Flores. The officer had reliable information that the truck was stolen. He saw suspicious behavior by the car's driver, who later drove off in the stolen truck. The officer's suspicions were further justifiably aroused by the timing of Boteo–Flores's arrival, his actions, and the truck driver's shouting to him. The officer testified that based on his training and experience, he suspected Boteo–Flores was acting as a lookout. Because this suspicion was reasonable given the totality of the circumstances, Boteo–Flores's initial detention was legal. See, e.g., Terry, 392 U.S. at 5–6, 28, 88 S.Ct. 1868.

¶ 14 What happened subsequently, however, presents a different question. Although “[t]here is no bright line that distinguishes a valid Terry stop” from a de facto arrest, “Terry stops must be tailored to fit the exigencies of particular situations.” United States v. Pontoo, 666 F.3d 20, 30 (1st Cir.2011). “[W]hether the scope of an investigatory stop is reasonable demands careful consideration of the totality of the circumstances.” ^†Id. “[A]n investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop.” Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (plurality opinion).

¶ 15 United States v. Sharpe, 470 U.S. 675, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985), clarified that there is no rigid time limit for a Terry stop and the appropriate query is “whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant.” Id. at 686, 105 S.Ct. 1568. The Court cautioned that in assessing the reasonableness of a detention, courts should “consider whether the police are acting in a swiftly developing situation, and in such cases the court should not indulge in unrealistic second-guessing.” Id. It noted that “[t]he question is not simply whether some other alternative was available, but whether the police acted unreasonably in failing to recognize or to pursue it.” Id. at 687, 105 S.Ct. 1568;cf. State v. Spreitz, 190 Ariz. 129, 143–44, 945 P.2d 1260, 1274–75 (1997) (finding forty-five minute detention of blood-smeared defendant, who voluntarily cooperated with police and was not restrained, “no more than that necessary to accomplish a reasonable investigation of the unusual circumstances the officers encountered”).

¶ 16 Here, the State, whose burden it is to demonstrate that the continued detention was reasonable, presented no evidence to meet that burden. See Royer, 460 U.S. at 500, 103 S.Ct. 1319 (“It is the State's burden to demonstrate that the seizure it seeks to justify on the basis of reasonable suspicion was sufficiently limited in scope and duration to satisfy the conditions of an investigative seizure.”). Although Boteo–Flores was properly detained and questioned initially, he remained handcuffed for another thirty to forty minutes after the other officers returned. The State does not suggest that probable cause supported that continued detention, and nothing in the record explains why it was reasonable to detain him in handcuffs to await interrogation by the detective.

¶ 17 Nor has the State explained why it was necessary...