State v. Valenzuela, No. CR–15–0222–PR.

• Court: Supreme Court of Arizona
• Writing for the Court: Justice TIMMER, opinion of the Court
• Citation: 239 Ariz. 299,371 P.3d 627
• Parties: STATE of Arizona, Appellee, v. Francisco L. Encinas VALENZUELA, Appellant.
• Decision Date: 26 April 2016
• Docket Number: No. CR–15–0222–PR.

239 Ariz. 299
371 P.3d 627

STATE of Arizona, Appellee
v.
Francisco L. Encinas VALENZUELA, Appellant.

No. CR–15–0222–PR.

Supreme Court of Arizona.

April 26, 2016.

371 P.3d 628

Mark Brnovich, Arizona Attorney General, John R. Lopez IV, Solicitor General, Joseph T. Maziarz, Chief Counsel, Criminal Appeals Section, Diane Leigh Hunt (argued), Assistant Attorney General, Tucson, Attorneys for State of Arizona.

Mark F. Willimann (argued), The Law Office of Mark F. Willimann, LLC, Tucson,

371 P.3d 629

Attorney for Francisco L. Encinas Valenzuela.

Bruce Washburn, Scottsdale City Attorney, Ken Flint, Assistant City Prosecutor, Scottsdale, Attorneys for Amicus Curiae City of Scottsdale.

Jeffrey D. Bartolino (argued), Law Offices of Jeffrey D. Bartolino, Tucson; and David J. Euchner, Pima County Public Defender's Office, Tucson, Attorneys for Amicus Curiae Arizona Attorneys for Criminal Justice.

Dean Brault, Pima County Legal Defender, Scott A. Martin, Assistant Legal Defender, Tucson, Attorneys for Amicus Curiae Pima County Legal Defender's Office.

Michelle L. Behan, Nesci & St. Louis, P.L.L.C., Tucson, Attorneys for Amicus Curiae National College for DUI Defense, Inc.

Justice TIMMER authored the opinion of the Court, in which Vice Chief Justice PELANDER and Justices BRUTINEL and BERCH (Retired) joined, and Chief Justice BALES concurred in part and dissented in part.

Justice TIMMER, opinion of the Court:

¶ 1 Although the Fourth Amendment generally prohibits warrantless searches, they are permitted if there is free and voluntary consent to search. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) ; State v. Butler, 232 Ariz. 84, 87 ¶ 13, 302 P.3d 609, 612 (2013). Consent cannot be deemed to be given “freely and voluntarily” if the subject of a search merely acquiesces to a claim of lawful authority. Bumper v. North Carolina, 391 U.S. 543, 548–49, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968).

¶ 2 Arizona's implied consent law provides that “[a] person who operates a motor vehicle in this state gives consent ... to a test or tests of the person's blood, breath, urine or other bodily substance” if the person is arrested for driving under the influence of alcohol or drugs (“DUI”). A.R.S. § 28–1321(A). Nevertheless, “the statute generally does not authorize law enforcement officers to administer the test without a warrant unless the [operator] expressly agrees to the test.” Carrillo v. Houser, 224 Ariz. 463, 463 ¶ 1, 232 P.3d 1245, 1245 (2010). The issue here is whether, for Fourth Amendment purposes, a driver arrested for DUI voluntarily consented to give samples of his blood and breath after a police officer advised him that “Arizona law requires you to submit” to breath, blood or other bodily substance tests chosen by law enforcement. We hold that showing only that consent was given in response to this admonition fails to prove that an arrestee's consent was freely and voluntarily given. Because the admonition in this case was given in good faith reliance on precedent, however, exclusion of the test results is neither appropriate nor required.

I. BACKGROUND

¶ 3 In reviewing the denial of a defendant's motion to suppress, we consider only “evidence presented at the suppression hearing and view the facts in the light most favorable to sustaining the trial court's ruling.” State v. Hausner, 230 Ariz. 60, 70 ¶ 23, 280 P.3d 604, 614 (2012).

¶ 4 In August 2012, a Department of Public Safety (“DPS”) officer found Francisco Valenzuela asleep in the driver's seat of his stopped truck with the engine running and the vehicle in gear. After spotting an open container of alcohol, detecting a strong odor of alcohol, and observing signs that Valenzuela was impaired, the officer arrested Valenzuela on suspicion of DUI.

¶ 5 After taking Valenzuela to a police station, the officer read Valenzuela an “admin per se” form, which provided, in part, that “Arizona law requires you to submit to and successfully complete tests of breath, blood or other bodily substance as chosen by a law enforcement officer to determine alcohol concentration or drug content.” The officer stressed this “requirement” three additional times and warned that refusal would result in a one-year suspension of Valenzuela's driver's license. (Although the officer read from part of the form while testifying at the suppression hearing, the form itself is not in the record.) Valenzuela cooperated and, in response to the officer's questions, stated he understood the admonition and had no

371 P.3d 630

questions. He then submitted to breath and blood tests. After the tests revealed that Valenzuela had an alcohol concentration (“AC”) in excess of 0.20, the State charged him with five counts of aggravated DUI.

¶ 6 Valenzuela moved to suppress the test results. He argued that he did not voluntarily consent to the tests, and the warrantless search therefore violated his Fourth Amendment rights. After conducting a suppression hearing at which only the DPS officer testified, the trial court denied the motion, reasoning that the totality of the circumstances showed that Valenzuela had voluntarily consented to the search. Based on the parties' stipulated facts, the court subsequently dismissed three counts, convicted Valenzuela on the remaining counts, and imposed prison sentences.

¶ 7 In a divided decision, the court of appeals affirmed. State v. Valenzuela, 237 Ariz. 307, 316 ¶ 35, 350 P.3d 811, 820 (App.2015). The majority examined the totality of the circumstances and concluded that the trial court did not err in finding Valenzuela's consent voluntary. Id. at 315 ¶ 31, 350 P.3d at 819. The dissenting judge recognized the need to generally examine the totality of the circumstances to determine the voluntariness of consent. Id. at 317 ¶ 39, 350 P.3d at 821 (Eckerstrom, C.J., dissenting). Relying on Bumper, he nevertheless reasoned that when the evidence shows that police asserted lawful authority to search, “a court's analysis has reached its end; voluntary consent cannot be found as a matter of law.” Id. Because, in his view, the admonition asserts a claim of lawful authority, the dissenting judge concluded as a matter of law that Valenzuela could not have voluntarily consented to testing. Id. at 318 ¶ 45, 350 P.3d at 822.

¶ 8 We granted Valenzuela's petition for review because it presents a recurring legal question of statewide importance. We have jurisdiction pursuant to article 6, section 5, of the Arizona Constitution and A.R.S. § 12–120.24.

II. DISCUSSION

¶ 9 We review the denial of a motion to suppress evidence for abuse of discretion, considering the facts in the light most favorable to sustaining the ruling. State v. Wilson, 237 Ariz. 296, 298 ¶ 7, 350 P.3d 800, 802 (2015). “An error of law committed in reaching a discretionary conclusion may, however, constitute an abuse of discretion.” Busso–Estopellan v. Mroz, 238 Ariz. 553, 554 ¶ 5, 364 P.3d 472, 473 (2015) (citation omitted).

A. Fourth Amendment principles

¶ 10 The Fourth Amendment to the United States Constitution protects individuals against “unreasonable searches and seizures,” and any evidence collected in violation of this provision is generally inadmissible in a subsequent criminal trial. Mapp v. Ohio, 367 U.S. 643, 654, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) (internal quotation marks and citation omitted). A compelled blood draw or breath test administered pursuant to § 28–1321 is a search subject to the Fourth Amendment's restrictions. See Butler, 232 Ariz. at 87 ¶ 10, 302 P.3d at 612 (citing Missouri v. McNeely, –––U.S. ––––, 133 S.Ct. 1552, 1556, 185 L.Ed.2d 696 (2013) ). A warrantless search is per se unreasonable under the Fourth Amendment unless one of a few well-established exceptions applies. Arizona v. Gant, 556 U.S. 332, 338, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009).

¶ 11 One exception to the warrant requirement is a search conducted with consent. See Schneckloth, 412 U.S. at 219, 93 S.Ct. 2041. When the state relies on consent to justify a warrantless search, as it does here, it “has the burden of proving that the consent was, in fact, freely and voluntarily given.” Id. at 222, 93 S.Ct. 2041 (citation omitted). Whether consent is voluntary or “the product of duress or coercion, express or implied,” is a factual issue resolved by reviewing the totality of circumstances, including any “subtly coercive police questions, as well as the possibly vulnerable subjective state of the person who consents.” Id. at 227, 229, 93 S.Ct. 2041 ; see also Butler, 232 Ariz. at 87 ¶ 13, 88 ¶ 19, 302 P.3d at 612, 613. The state must prove voluntary consent by a

371 P.3d 631

preponderance of the evidence.¹ Ariz. R.Crim. P. 16.2(b).

B. Application of admonishment given pursuant to § 28–1321, Arizona's implied consent law

¶ 12 Valenzuela argues that, under Bumper, his consent to providing blood and breath samples must be deemed involuntary because he consented only after the officer advised that Arizona law required him to submit to testing. The...