State v. Havatone

• Decision Date: 06 June 2019
• Docket Number: No. 1 CA-CR 17-0547,1 CA-CR 17-0547
• Citation: 246 Ariz. 573,443 P.3d 970
• Parties: STATE of Arizona, Appellee, v. Don Jacob HAVATONE, Appellant.
• Court: Arizona Court of Appeals

246 Ariz. 573

443 P.3d 970

STATE of Arizona, Appellee,

v.Don Jacob HAVATONE, Appellant.

No. 1 CA-CR 17-0547

Court of Appeals of Arizona, Division 1.

FILED June 6, 2019

Arizona Attorney General’s Office, Phoenix, By Terry M. Crist, Counsel for Appellee

Law Offices of Shawn B. Hamp, Kingman, By Shawn B. Hamp, Virginia L. Crews, Troy M. Anderson, Counsel for Appellant

Judge James P. Beene delivered the opinion of the Court, in which Presiding Judge Maria Elena Cruz and Judge Jennifer B. Campbell joined.

BEENE, Judge:

¶1 Don Jacob Havatone appeals from his convictions and sentences for two counts of aggravated driving under the influence of intoxicating liquor ("DUI"), one count of aggravated assault, one count of endangerment, and four counts of misdemeanor assault. Because a Nevada statute at the time allowed a blood sample to be taken from an unconscious DUI suspect, the good-faith exception to the exclusionary rule applied, and the superior court did not err by denying Havatone’s motion to suppress. Accordingly, we affirm.

FACTS AND PROCEDURAL HISTORY¹

¶2 In September 2012, Havatone’s SUV swerved into oncoming traffic and collided with another vehicle near Kingman, Arizona. Havatone was taken to a hospital in Nevada for injuries sustained in the collision. A police officer in Nevada, without securing a warrant, obtained a sample of Havatone’s blood drawn by the hospital’s phlebotomist. A criminalist in Arizona tested Havatone’s blood sample and it showed a blood alcohol concentration of 0.21.

¶3 The State charged Havatone with two counts of aggravated DUI, five counts of aggravated assault, and one count of endangerment. Before trial, Havatone moved to suppress the results of the warrantless blood draw.

¶4 At the suppression hearing, Officer Perea with the Arizona Department of Public Safety ("DPS") testified that he responded to the collision. He stated that the passengers riding with Havatone, as well as the driver of the other vehicle, were injured in the collision. He found Havatone lying behind his SUV with a head wound. Officer Perea smelled alcohol coming from Havatone, found alcohol containers in his vehicle, and Havatone admitted he was driving.

¶5 Based on his injuries, Havatone was taken by helicopter to a hospital in Nevada. Officer Perea contacted DPS dispatch and asked them to contact Nevada Highway Patrol ("NHP") to collect a blood sample. DPS dispatch contacted NHP, informed them that Havatone caused a collision in Arizona, the officer on scene suspected him of DUI, and requested Nevada law enforcement assist in the collection of a blood sample.

¶6 Officer Perea did not direct dispatch to explain how Nevada law enforcement should collect the blood sample or whether they needed a search warrant. Although Officer Perea testified at the suppression hearing that whether to obtain a search warrant was his "sole decision," he did not believe he needed to obtain a search warrant for an out-of-state blood draw and he never attempted to do so in prior cases.

¶7 NHP dispatch relayed Officer Perea’s request to NHP Officer Reinmuth. Officer Reinmuth testified that he went to the hospital, obtained a sample of Havatone’s blood from a phlebotomist, and completed a declaration form pursuant to NHP protocol. Havatone was unconscious at the time of the blood draw and the State stipulated that the blood sample was not collected for medical purposes. The officer sent Havatone’s blood sample to Arizona DPS for testing. Both officers testified that they followed departmental policies and their law enforcement training regarding the taking of Havatone’s blood.

¶8 After the suppression hearing, the superior court found that the officers were authorized under both Arizona and Nevada law to obtain a warrantless blood sample, and, even if a warrant was required, the good-faith exception applied. The court denied Havatone’s request to suppress the blood test results and the evidence was presented at trial. A jury found Havatone guilty as charged in four counts and guilty of lesser included offenses in the remaining counts. The court sentenced Havatone to a total of 17.5 years’ imprisonment.

¶9 In his first appeal, Havatone argued the superior court erred in refusing to suppress the blood test results because both states' "implied consent" laws authorizing officers to conduct blood draws from unconscious DUI suspects violated his Fourth Amendment rights. See Ariz. Rev. Stat. ("A.R.S.") § 28-1321(C) (2011); Nev. Rev. Stat. ("N.R.S.") § 484C.160(1), (2) (2009). Citing Missouri v. McNeely , 569 U.S. 141, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013), Havatone argued that the officers lacked exigent circumstances to obtain a warrantless blood sample and the good-faith exception did not apply under Arizona law.²

¶10 The State argued McNeely was issued after the blood draw occurred in this case and the good-faith exception applied under both Arizona and Nevada law. This Court agreed, affirming the superior court’s ruling. State v. Havatone , 1 CA-CR 14-0223, 2015 WL 6472357, at *8, ¶ 29 (Ariz. App. Oct. 27, 2015) (mem. decision). We added, "[r]egardless of whether we assess Arizona or Nevada law, statutes in both states explicitly authorized the particular police conduct at issue here." Id . at *5, ¶ 20 (citing State v. Mitchell , 234 Ariz. 410, 419, ¶ 31, 323 P.3d 69, 78 (App. 2014) ).

¶11 The Arizona Supreme Court granted review of the denial of the motion to suppress the blood test results. State v. Havatone , 241 Ariz. 506, 509, ¶¶ 9-10, 389 P.3d 1251, 1254 (2017). The Arizona Supreme Court held that the "unconscious clause" of Arizona’s "implied consent" statute, as applied in this case, was unconstitutional and the good-faith exception did not apply under Arizona law. Id . at 508, ¶¶ 1-2, 389 P.3d at 1253 ; see A.R.S. § 28-1321(C). The Arizona Supreme Court vacated this Court’s decision, reversed the ruling on the motion to suppress, and remanded the case to the superior court. Id . at 515, ¶ 37, 389 P.3d at 1260. On remand, the Arizona Supreme Court ordered

the trial court to determine, in the first instance, whether Arizona or Nevada law applies. If the court concludes that Nevada law applies, it should determine whether the good-faith exception applies. If the good-faith exception does not apply, the trial court must vacate the convictions and sentences, suppress the blood-draw evidence, and order a new trial.

Id . at 515, ¶ 36, 389 P.3d at 1260.

¶12 On remand, the superior court ordered the parties to submit supplemental briefs on "whether Arizona or Nevada law should apply to the seizure of the blood in this case and, if Nevada law applies, whether the good-faith exception applies." The court found that Nevada law applied to the seizure of the blood, Nevada case law authorized the officer’s conduct at the time of the seizure, and the good-faith exception applied. The court added, "Although the blood could not have been lawfully obtained in Arizona under the same procedures in place in Nevada, the blood was lawfully seized in Nevada. Imposition of the exclusionary rule would not serve its stated purpose of deterring police misconduct if the evidence was precluded." Thus, the court affirmed its prior refusal to suppress the blood test results.

¶13 Havatone filed a timely appeal from the superior court’s ruling upon remand and we have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).

DISCUSSION

¶14 Havatone contends the superior court erred in applying Nevada law to the warrantless blood sample obtained through a draw conducted in that state and, in turn, erred in finding that the good-faith exception applied under Nevada law. Although Havatone argues that the court should have applied Arizona law, he asserts the good-faith exception does not apply under either Arizona or Nevada law.

¶15 We review a ruling on a motion to suppress for an abuse of discretion. State v. Valenzuela , 239 Ariz. 299, 302, ¶ 9, 371 P.3d 627, 630 (2016). We review the superior court’s legal conclusions as to issues of constitutional law and "the applicability of the good-faith exception to the exclusionary rule" de novo . Havatone , 241 Ariz. at 509, ¶ 11, 389 P.3d at 1254 ; State v. Booker , 212 Ariz. 502, 504, ¶ 10, 135 P.3d 57, 59 (App. 2006). We may only consider evidence presented at the suppression hearing and view the facts in the light most favorable to upholding the court’s ruling. State v. Butler , 232 Ariz. 84, 87, ¶ 8, 302 P.3d 609, 612 (2013).

I. Purpose of the Exclusionary Rule

¶16 To resolve the choice-of-law issue, we first look to the history of the exclusionary rule. Known as a judicially-created "deterrent remedy," the exclusionary rule was imposed as a consequence for illegal searches and seizures. Wolf v. Colorado , 338 U.S. 25, 31-32, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949). In Weeks v. United States , 232 U.S. 383, 393, 34 S.Ct. 341, 58 L.Ed. 652 (1914), the United States Supreme Court explained that "the protection of the 4th Amendment ... is of no value" if evidence obtained in an illegal search and seizure can be used in a federal prosecution. To provide no remedy "would be to affirm by judicial decision a manifest neglect, if not an open defiance, of the prohibitions of the Constitution, intended for the protection of the people against such unauthorized action." Id . at 394, 34 S.Ct. 341. Thus, the Court in Weeks created the federal exclusionary rule, barring the use of evidence obtained in violation of the Fourth Amendment. Id . at 391-99, 34 S.Ct. 341 ; see also Silverthorne Lumber Co. v. United States , 251 U.S. 385, 392, 40 S.Ct. 182, 64 L.Ed. 319 (1920).

¶17 Later, in Mapp v. Ohio , 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), the United States Supreme Court extended the exclusionary rule to violations of the Fourth Amendment by state actors through the Due Process Clause of the Fourteenth Amendment. The Court noted, "without that rule the freedom from state invasions of privacy would be so ephemeral...