IN THE COURT OF APPEALS
STATE OF ARIZONA
DIVISION TWO
THE STATE OF ARIZONA, )
) 2 CA-CR 2002-0202
Appellee, ) DEPARTMENT A
)
v. ) OPINION
)
MAX VALENCIA CHAVEZ, )
)
Appellant. )
)
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. CR-20000140
Honorable Paul S. Banales, Judge Pro Tempore
AFFIRMED
Terry Goddard, Arizona Attorney General
By Randall M. Howe and Michael T. O’Toole Phoenix
Attorneys for Appellee
Susan A. Kettlewell, Pima County Public Defender
By John F. Palumbo Tucson
Attorneys for Appellant
H O W A R D, 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.
1
As we discuss below, Ranger Corella did not have specific legal authority as a
ranger to arrest Chavez for DUI. Thus, the legal issue presented is whether the arrest was
proper as a citizen’s arrest pursuant to A.R.S. § 13-3884.
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¶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
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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
2
In fact, the offenses Chavez committed in Corella’s presence were felonies, by
virtue either of Chavez’s previous DUI convictions or his driver’s license having been
revoked. Presumably because Corella did not know that when he decided to stop Chavez,
the parties have focused their arguments on whether a misdemeanor DUI offense, see
A.R.S. § 28-1381(A), (C), can constitute a breach of the peace under § 13-3884(1).
3
Nor does he dispute Corella’s legal authority as a ranger to stop Chavez’s vehicle
“to check on [his] welfare.”
4
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, 644 N.E.2d 53, 55 (Ill. App. Ct. 1994); Commonwealth v. Gorman,
192 N.E. 618, 620 (Mass. 1934); City of Troy v. Cummins, 159 N.E.2d 239, 242 (Ohio Ct.
5
App. 1958); Romo v. State, 577 S.W.2d 251, 253 (Tex. Crim. App. 1979); State ex rel.
State v. Gustke, 516 S.E.2d 283, 291-92 (W. Va. 1999); City of Waukesha v. Gorz, 479
N.W.2d 221, 223 (Wis. 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, 585 S.E.2d 583, 588 (Va. 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
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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 agents; it does not limit the actions of private citizens.
“[A] private citizen’s actions, even if wrongful, do not fall under the ambit of the Fourth
Amendment.” Id. at 216 (citation omitted); see also Burdeau v. McDowell, 256 U.S. 465,
475, 41 S. Ct. 574, 576, 65 L. Ed. 1048, 1051 (1921) (Fourth Amendment’s protection
7
against unlawful searches and seizures applies only to governmental action, not to private
parties); State v. Weekley, 200 Ariz. 421, ¶ 16, 27 P.3d 325, 328 (App. 2001), quoting
Walter v. United States, 447 U.S. 649, 662, 100 S. Ct. 2395, 2404, 65 L. Ed. 2d 410, 421
(1980) (Blackmun, J., dissenting) (Fourth Amendment does not apply “‘to a search or
seizure, even an unreasonable one, effected by a private individual’”). Because the parties
effectively agree that Corella’s actions in stopping and detaining Chavez must be viewed
not as the actions of a law enforcement officer or state agent but as those of a private
citizen, see generally Gustke, the Fourth Amendment’s requirement of probable cause
simply was not implicated here.
¶15 As a corollary of that general principle, and given the exclusionary rule’s
primary purpose, which is to discourage unconstitutional conduct by police, see State v.
Atwood, 171 Ariz. 576, 667, 832 P.2d 593, 684 (1992) (Corcoran, J., specially concurring);
State v. Windus, 207 Ariz. 328, ¶ 16, 86 P.3d 384, 387 (App. 2004), courts have refused
to apply the exclusionary rule to evidence obtained through the unlawful actions of private
citizens. See, e.g., State v. Rice, 110 Ariz. 210, 211-12, 516 P.2d 1222, 1223-24 (1973);
People v. Leighton, 177 Cal. Rptr. 415, 417 (Cal. Ct. App. 1981); State v. Stevens, 603
A.2d 1203, 1209 (Conn. App. Ct. 1992); State v. Hart, 669 N.E.2d 762, 765-66 (Ind. Ct.
App. 1996); State v. Clark, 454 So. 2d 232, 234 (La. Ct. App. 1984); State v. McGinnis,
2000 WL 1133247, at *4 (Ohio Ct. App. Aug. 11, 2000); Town of Mount Pleasant v.
Jones, 516 S.E.2d 468, 471 (S.C. Ct. App. 1999). Hence, as one court has stated, “if the
citizen’s arrest had been unlawful, [Corella] might have incurred liability for damages, but
8
the evidence would not have been suppressed.” Hart, 669 N.E.2d at 766. Therefore, even
had his arrest been unlawful, Chavez’s convictions could still stand because the
exclusionary rule does not apply to the actions of private citizens.
¶16 We hold that driving a vehicle while intoxicated constitutes a misdemeanor
amounting to a breach of the peace within the meaning of § 13-3884(1) and that the trial
court did not abuse its discretion in denying Chavez’s motion to dismiss or to suppress. We
therefore affirm the judgment of convictions, suspension of sentence, and imposition of
probation.
JOSEPH W. HOWARD, Presiding Judge
CONCURRING:
J. WILLIAM BRAMMER, JR., Judge
PHILIP G. ESPINOSA, Judge
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