State v. Chavez

Decision Date14 September 2004
Docket NumberNo. 2 CA-CR 2002-0202.,2 CA-CR 2002-0202.
Citation208 Ariz. 606,96 P.3d 1093
PartiesThe STATE of Arizona, Appellee, v. Max Valencia CHAVEZ, Appellant.
CourtArizona Court of Appeals

Terry Goddard, Arizona Attorney General, By Randall M. Howe and Michael T. O'Toole, Phoenix, for Appellee.

Susan A. Kettlewell, Pima County Public Defender, By John F. Palumbo, Tucson, for Appellant.

OPINION

HOWARD, Presiding Judge.

¶ 1 A jury found appellant Max Valencia Chavez guilty of four felony counts of aggravated driving under the influence of intoxicants (DUI) based alternately on his revoked driver's license and his two prior DUI convictions. The trial court placed him on five years' probation and imposed four months' imprisonment as a condition of his probation. Chavez appeals, claiming the trial court should have granted his pretrial motion to dismiss the charges against him or alternatively to suppress evidence, based on what he alleges was an improper citizen's arrest under A.R.S. § 13-3884(1). We hold that DUI is an offense amounting to a breach of the peace, justifying the citizen's arrest effected in this case, and we therefore affirm the convictions.

¶ 2 Motions to dismiss are committed to the sound discretion of the trial court, and we will not disturb the denial of such a motion absent an abuse of the court's discretion. State v. Hansen, 156 Ariz. 291, 294, 751 P.2d 951, 954 (1988). We review a trial court's ruling on a motion to suppress evidence using the same standard. State v. Spears, 184 Ariz. 277, 284, 908 P.2d 1062, 1069 (1996). We view the facts and evidence in the light most favorable to sustaining the trial court's ruling, but we review questions of law de novo. State v. Sanchez, 200 Ariz. 163, ¶ 5, 24 P.3d 610, 612 (App.2001).

¶ 3 The four charges against Chavez arose from a single incident. On the night of August 20, 1999, a tribal ranger1 patrolling the San Xavier Indian Reservation observed Chavez driving erratically on South Mission Road. When Ranger Corella first saw Chavez's truck, it was completely stopped in the roadway. Corella pulled to within eight feet of the truck and sat with his lights on, watching, for approximately two minutes.

¶ 4 The truck then began to move, and Corella followed it as it proceeded southbound. He observed Chavez driving slowly, weaving, stopping, starting, and continuing to veer on and off the shoulder of the road. Concerned for the safety of other motorists, Corella radioed his dispatcher to send a tribal police officer. When Ranger Corella finally activated his vehicle's emergency lights, Chavez stopped his truck briefly in the roadway, then resumed his erratic driving for another four-tenths of a mile. Eventually Chavez pulled over and stopped on the shoulder of the road. Soon after, he opened the passenger door of his truck, got out, and ran into the desert. ¶ 5 Ignoring Corella's command to stop, Chavez continued running. As he ran up an incline, he lost his balance and fell forward into a prickly pear cactus. When Chavez got up, covered with cactus spines, Corella placed him in handcuffs. Corella did so, he testified, for his own safety because he did not know why Chavez had tried to run away from him. He then noted Chavez was slurring his speech and emanating an odor of alcohol. After an eight- to twelve-minute wait, a tribal police officer arrived and took custody of Chavez.

¶ 6 Before trial, Chavez moved to dismiss or, in the alternative, to suppress evidence obtained following his arrest. He claimed his detention and arrest were illegal because Ranger Corella, who was not a certified Arizona peace officer, see A.R.S. §§ 41-1822, 41-1823, lacked authority to detain him. According to Corella, his official duties as a ranger include patrolling the 77,000-acre San Xavier reservation with responsibility for protecting wildlife and enforcing both environmental laws and trespassing laws. Rangers are unarmed, uncertified, and not considered to be law enforcement officers. They do, however, carry handcuffs, pepper spray, flashlights, and batons and drive marked vehicles equipped with emergency lights.

¶ 7 In denying Chavez's pretrial motion to suppress, the trial court ruled that Corella had had authority "to stop and detain [Chavez's] vehicle," not in his official capacity as a ranger, but as a private citizen. The court held Chavez's erratic and dangerous driving constituted a breach of the peace for purposes of § 13-3884, which provides:

Arrest by private person

A private person may make an arrest:

1. When the person to be arrested has in his presence committed a misdemeanor amounting to a breach of the peace, or a felony.
2. When a felony has been in fact committed and he has reasonable ground to believe that the person to be arrested has committed it.2

Chavez does not dispute the authority of a tribal ranger to make a citizen's arrest.3 See State v. Goldberg, 112 Ariz. 202, 204, 540 P.2d 674, 676 (1975)

(federal agents with limited arrest authority "still have the power to make arrests for violations of state laws as private citizens"). Rather, he argues that his DUI offense was not a breach of the peace for purposes of § 13-3884(1) because a breach of the peace is substantially synonymous with disorderly conduct as defined by A.R.S. § 13-2904(A), which, he contends, does not encompass DUI.

¶ 8 Although this is apparently a case of first impression in Arizona, other jurisdictions have held, and legal treatises recognize, that dangerous or reckless driving, including DUI, amounts to a breach of the peace allowing a private citizen to stop, detain, or arrest the driver. See, e.g., 11 C.J.S. Breach of the Peace § 5 (1995) ("[T]he operation of a motor vehicle while intoxicated is an activity which threatens the public security and involves violence, and as such, it amounts to a breach of the peace."); 12 Am.Jur.2d Breach of Peace and Disorderly Conduct § 9 (1997) (driving while intoxicated and reckless driving included among the varied acts and conduct held or recognized to constitute a breach of the peace); 5 Am.Jur.2d Arrest § 67 (1995) (officer may arrest for DUI "even where the power to arrest without warrant is limited to breaches of the peace, since this offense is held to constitute a breach of the peace, or at least a prospective or anticipated breach.").

¶ 9 Supporting the treatises' statements are cases from a number of different jurisdictions. E.g., Edwards v. State, 462 So.2d 581, 582 (Fla.Dist.Ct.App.1985)

; People v. Niedzwiedz, 268 Ill.App.3d 119, 205 Ill.Dec. 837, 644 N.E.2d 53, 55 (1994); Commonwealth v. Gorman, 288 Mass. 294, 192 N.E. 618, 620 (1934); City of Troy v. Cummins, 107 Ohio App. 318, 159 N.E.2d 239, 242 (1958); Romo v. State, 577 S.W.2d 251, 253 (Tex.Crim.App.1979); State ex rel. State v. Gustke, 205 W.Va. 72, 516 S.E.2d 283, 291-92 (1999); City of Waukesha v. Gorz, 166 Wis.2d 243, 479 N.W.2d 221, 223 (Ct.App.1981); accord Ruiz v. State, 907 S.W.2d 600, 604 (Tex.Ct.App.1995); Pringle v. State, 732 S.W.2d 363, 368 (Tex.Ct.App.1987); Yates v. State, 679 S.W.2d 534, 537 (Tex.Ct.App.1984). Notably, Chavez has brought to our attention no authority from any jurisdiction holding otherwise.

¶ 10 And, as one Florida appellate court colorfully stated in Edwards, "We cannot think of a more apt illustration of such breach of the individual and collective peace... than to have a drunk driver at the wheel of a killing machine that is going all over the road and scaring oncoming drivers to death rather than killing them." 462 So.2d at 582; see also Hudson v. Commonwealth, 266 Va. 371, 585 S.E.2d 583, 588 (2003)

(dangerous driving constitutes breach of peace, regardless whether driver under influence of intoxicants).

¶ 11 In a case virtually on all fours with this one, United States v. Sealed Juvenile 1, 255 F.3d 213 (5th Cir.2001), an off-duty federal customs officer in Texas observed a pickup truck being driven erratically, veering in and out of its proper lane, variously crossing the center line and moving onto the emergency shoulder of the road. Safety concerns finally prompted the officer to stop the truck, in which he found over 700 pounds of cocaine, which the juvenile driver later moved to suppress as evidence, arguing the customs officer had lacked authority to stop her.

¶ 12 The Fifth Circuit cited Texas authority holding that any traffic violation that "is egregious enough to threaten disaster and disorder or pose a potentially perilous public risk ... may constitute a breach of the peace," id. at 218, and also noted that the determination whether a given act constitutes a breach of the peace requires a case-by-case analysis of the facts and surrounding circumstances. Under the facts present there, the court concluded the juvenile's erratic driving had endangered her own life and the lives of other motorists and thus constituted a breach of the peace. Id. We believe the same was true of Chavez's drunken driving as observed and described by Ranger Corella here.

¶ 13 We also further disagree with Chavez's contention that a breach of the peace in Arizona is confined to the six instances of disorderly conduct enumerated in § 13-2904(A). Unlike the offense of disorderly conduct, which is a creature of statute, breach of the peace has its roots in the common law. 12 Am.Jur.2d Breach of Peace and Disorderly Conduct §§ 1, 24. The two concepts overlap but are distinguishable, id., and, "while disorderly conduct can include a breach of the peace, breach of the peace is not limited to behavior prohibited by the disorderly conduct statutes." Id. § 1.

¶ 14 We also reject Chavez's contention that, even if his DUI offense was a breach of the peace for purposes of § 13-3884(1), his arrest was illegal because Corella lacked probable cause to arrest him for the offense. As the Fifth Circuit noted in Sealed Juvenile 1, the Fourth Amendment's prohibition against unconstitutional searches and seizures applies only to government...

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