IN THE
SUPREME COURT OF THE STATE OF ARIZONA
STATE OF ARIZONA,
Appellee,
v.
COURTNEY NOELLE WEAKLAND,
Appellant.
No. CR-17-0615-PR
Filed February 25, 2019
Appeal from the Superior Court in Pima County
The Honorable Casey F. McGinley, Judge Pro Tempore
No. CR20153118-001
AFFIRMED
Opinion of the Court of Appeals, Division Two
244 Ariz. 79 (App. 2017)
VACATED
COUNSEL:
Mark Brnovich, Arizona Attorney General, Dominic E. Draye, Solicitor
General, Joseph T. Maziarz, Chief Counsel, Mariette S. Ambri (argued),
Assistant Attorney General, Criminal Appeals Section, Tucson, Attorneys
for State of Arizona
Dean J. Brault, Legal Defender, Robb P. Holmes (argued), Assistant Legal
Defender, Pima County Legal Defender's Office, Tucson, Attorneys for
Courtney Noelle Weakland
Mary C. Trejo, Tucson Public Defender, Kristina J. Bohn, Supervising Public
Defender, Tucson, Attorneys for Amicus Curiae Tucson Public Defender's
Office
David J. Euchner (argued), Pima County Public Defender’s Office, Tucson;
and Joseph P. St. Louis, Nesci & St. Louis, P.L.L.C., Tucson, Attorneys for
STATE V. WEAKLAND
Opinion of the Court
Amici Curiae Arizona Attorneys for Criminal Justice and National College
for DUI Defense
JUSTICE LOPEZ authored the opinion of the Court, in which VICE CHIEF
JUSTICE BRUTINEL and JUSTICES TIMMER and GOULD joined.
JUSTICE PELANDER dissented. JUSTICE BOLICK, joined by CHIEF
JUSTICE BALES, separately dissented.
JUSTICE LOPEZ, opinion of the Court:
¶1 We here consider whether the good-faith exception to the
exclusionary rule applies, in a prosecution for driving under the influence
(“DUI”), to admit blood evidence unconstitutionally obtained after State v.
Butler, 232 Ariz. 84 (2013), but before State v. Valenzuela (Valenzuela II), 239
Ariz. 299 (2016). We hold that the good-faith exception applies because
application of the exclusionary rule in these circumstances would not
meaningfully deter police misconduct. Butler did not “unsettle” the law,
and it is unreasonable to require police to predict a change in the law when
our trial and appellate courts failed to do so.
I.
¶2 In February 2015, an Oro Valley police officer arrested
Courtney Weakland for DUI. The officer handcuffed her, put her in the
back seat of his patrol car, and read her an “admin per se” form pursuant
to A.R.S. § 28-1321. The form provided that Arizona law “require[d]” her
to complete certain tests to determine her blood-alcohol concentration
(“BAC”). She submitted to a blood draw, which revealed a BAC of .218,
nearly three times the legal limit. Weakland was indicted on one count of
aggravated DUI while impaired to the slightest degree and one count of
aggravated DUI with a BAC of .08 or more.
¶3 Before trial, Weakland moved to suppress all evidence
obtained through the warrantless search and seizure of her blood sample,
arguing that the “requirement” language in the admin per se admonition
coerced her consent. The trial court summarily denied her motion.
Weakland was convicted on both counts.
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STATE V. WEAKLAND
Opinion of the Court
¶4 On appeal, Weakland argued that, pursuant to Valenzuela II,
her blood was obtained without a warrant and without valid consent, and
that the good-faith exception recognized in Valenzuela II did not apply. The
State implicitly conceded on appeal that Weakland’s consent to the blood
draw was involuntary and, thus, invalid pursuant to Valenzuela II, but
argued that the good-faith exception to the exclusionary rule obviated the
need to suppress the blood evidence. In a divided opinion, the court of
appeals affirmed. State v. Weakland, 244 Ariz. 79 (App. 2017). The majority
reasoned that, because Arizona courts had not held that the admin per se
admonition was “coercive, ineffective, or otherwise [affirmatively] negated
consent” until Valenzuela II, police acted in good faith when they read it to
Weakland after her arrest. See id. at 83 ¶ 19, 85 ¶ 24. The dissent argued
that although existing precedent may have justified applying the good-faith
exception to the defendant’s 2012 arrest in Valenzuela II, this Court’s 2013
Butler decision placed police on notice before Weakland’s 2015 arrest that
use of the admin per se admonition was constitutionally suspect. Id. at 85
¶¶ 27–28 (Eckerstrom, C.J., dissenting). The applicability of the good-faith
exception to the exclusionary rule for cases involving use of the admin per
se admonition after Butler, but before Valenzuela II, is a recurring issue of
statewide importance. We have jurisdiction pursuant to article 6, section
5(3) of the Arizona Constitution.
II.
¶5 “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.” Valenzuela II, 239 Ariz. at 302 ¶ 9. We review de
novo the applicability of the good-faith exception. State v. Havatone, 241
Ariz. 506, 509 ¶ 11 (2017).
¶6 “The exclusionary rule, which allows suppression of evidence
obtained in violation of the Fourth Amendment, is a prudential doctrine
invoked [solely] to deter future violations.” Valenzuela II, 239 Ariz.
at 308–09 ¶ 31 (citing Davis v. United States, 564 U.S. 229, 236–37 (2011)).
“Exclusion is ‘not a personal constitutional right,’ nor is it designed to
‘redress the injury’ occasioned by an unconstitutional search.” Davis, 564
U.S. at 236 (quoting Stone v. Powell, 428 U.S. 465, 486 (1976)). Because “a
deterrence purpose can only be served when the evidence to be suppressed
is derived from a search which the [police] knew or should have known
was unconstitutional under the Fourth Amendment,” United States v.
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STATE V. WEAKLAND
Opinion of the Court
Johnson, 457 U.S. 537, 565 (1982) (White, J., dissenting), the rule is intended
to deter only “deliberate, reckless, or grossly negligent conduct, or in some
circumstances recurring or systemic negligence.” Herring v. United States,
555 U.S. 135, 144 (2009). Therefore, “when the police act with an objectively
reasonable good-faith belief that their conduct is lawful, or when their
conduct involves only simple, isolated negligence,” the good-faith
exception applies because “the deterrence rationale loses much of its force,
and exclusion cannot pay its way.” Davis, 564 U.S. at 238 (internal citations
and quotation marks omitted); see also A.R.S. § 13-3925 (codifying good-
faith exception to the exclusionary rule).
¶7 “Real deterrent value is a ‘necessary condition for exclusion,’
but it is not ‘a sufficient’ one.” Davis, 564 U.S. at 237 (quoting Hudson v.
Michigan, 547 U.S. 586, 596 (2006)). “For exclusion to be appropriate, the
deterrence benefits of suppression must [also] outweigh its heavy costs.”
Id. (noting that exclusion’s “bottom-line effect, in many cases, is to suppress
the truth and set the criminal loose in the community without
punishment”). Consequently, exclusion of evidence should be a “last
resort.” Id. (quoting Hudson, 547 U.S. at 591). The state bears the burden of
establishing that the good-faith exception applies. Havatone, 241 Ariz.
at 511 ¶ 19.
III.
¶8 This case turns on whether police objectively, reasonably
relied on “binding appellate precedent” in using the admin per se
admonition at the time of Weakland’s arrest after Butler but before
Valenzuela II. See Havatone, 241 Ariz. at 512 ¶ 24. Stated differently, we must
determine whether the law regarding the admonition was “unsettled” at
the time of Weakland’s arrest, meaning law enforcement officers could not
rely on precedent to authorize the illegal search. Id. at 512–13 ¶ 29 (citing
Davis, 564 U.S. at 250 (Sotomayor, J., concurring in the judgment)). When
making this assessment, we do not require police to have a “crystal ball” in
determining what courts may conclude in future cases but rather require
them to act in objectively reasonable reliance on then-existing authority.
State v. Jean, 243 Ariz. 331, 343 ¶ 45 (2018); see United States v. Leon, 468 U.S.
897, 919 n.20 (1984) (stating that the good-faith exception requires that
police have “a reasonable knowledge of what the law prohibits”).
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STATE V. WEAKLAND
Opinion of the Court
¶9 Mindful of tension between Havatone and Jean, we clarify the
standard for the good-faith exception. We noted in Havatone that “Davis
instructs that law enforcement acts in good faith if ‘binding appellate
precedent specifically authorizes a particular police practice.’” 241 Ariz.
at 512 ¶ 24 (quoting Davis, 564 U.S. at 241). Although an accurate statement,
Davis did not limit the good-faith exception only to circumstances when
appellate precedent specifically authorizes a police practice. In fact, in Jean,
we rejected the proposition that “to qualify as ‘binding appellate precedent
under Davis,’ a case ‘must specifically authorize the precise conduct under
consideration.’” 243 Ariz. at 343 ¶ 45 (quoting United States v. Katzin, 769
F.3d 163, 173–76 (3d Cir. 2014)). Instead, we concluded that the good-faith
exception applies if the search was “conducted in objectively reasonable
reliance on . . . binding appellate precedent . . . .” Jean, 243 Ariz. at 343 ¶ 47;
see also Valenzuela II, 239 Ariz. at 309 ¶ 31 (“[W]hen law enforcement officers
‘act with an objectively reasonable good-faith belief that their conduct is
lawful,’ deterrence is unnecessary and the exclusionary rule does not
apply.” (quoting Davis, 564 U.S. at 238)). We find Jean’s approach more
consistent with Davis’s reasoning and the purpose of the exclusionary rule
and the good-faith exception to it. See Davis, 564 U.S. at 240–41, 249
(reasoning that the exclusionary rule does not apply where police
reasonably rely on binding appellate precedent because “[p]olice practices
trigger the harsh sanction of exclusion only when they are deliberate
enough to yield ‘meaningfu[l]’ deterrence, and culpable enough to be
‘worth the price paid by the justice system’” (alteration in original)
(citations omitted)). We see no reason to limit the good-faith exception to
police practices that appellate precedent specifically authorizes when the
rationale for the exception applies with equal force where binding appellate
precedent otherwise supports the practice. To the extent that Havatone and
Jean conflict, and despite Justice Bolick’s reliance on the “specific
authorization” standard, infra ¶¶ 41, 48, we reaffirm Jean’s reasonableness
approach.
¶10 Weakland contends that the good-faith exception does not
apply in her case because Butler “unsettled” the law. We are unpersuaded.
Although in Havatone we embraced the somewhat opaque concept (at least
in its application) that the good-faith exception should not apply when the
law is “unsettled” as to the constitutionality of a police practice, 241 Ariz.
at 512–13 ¶ 29, merely branding the state of the law between Butler and
Valenzuela II as “unsettled” does not repudiate Arizona’s appellate courts’
repeated authorization of the admin per se admonition.
5
STATE V. WEAKLAND
Opinion of the Court
¶11 The gravamen of Weakland’s argument is that the good-faith
exception should not apply to her case because, after Butler, the police
should have known that administering the admin per se admonition,
pursuant to § 28-1321, would be insufficient as an exception to the Fourth
Amendment’s warrant requirement or would be insufficient, by itself, to
establish voluntary consent to the test. In other words, if Butler did not
expressly invalidate use of the admonition, it at least “unsettled” the law.
Either way, Weakland contends, Butler put police on notice that use of the
form was constitutionally dubious. We disagree.
¶12 The issue in Butler was “whether the Fourth Amendment . . .
requires that a juvenile arrestee’s consent be voluntary to allow a
warrantless blood draw.” 232 Ariz. at 86 ¶ 1. Applying Missouri v. McNeely,
569 U.S. 141 (2013), this Court held that the Fourth Amendment requires
that, “independent of § 28-1321,” an arrestee’s consent to a warrantless
blood draw be voluntary under the totality of the circumstances. Id. at 88
¶ 18. Although this Court assessed the circumstances under which the
juvenile defendant assented to the warrantless blood draw after hearing the
admonition, including his age, the duration of his detention, the absence of
his parents, and his disquieted demeanor, the sufficiency of consent given
in response to the admin per se admonition alone was not otherwise before
the Court. Id. at 88–89 ¶¶ 20–21. Indeed, if it were, the Court could have
found the lack of voluntary consent based solely on use of the admonition
without discussing other factors. Id. at 91 ¶ 32 (Pelander, J., concurring)
(noting facts also showed that the juvenile’s consent in response to the
admonition was voluntary and concluding that “had the juvenile court
found [the juvenile’s] consent voluntary, I would have had no difficulty
affirming that ruling, and I doubt my colleagues would have either”). If
anything, Butler emphasizes that the totality of the circumstances must be
considered in determining compliance with the Fourth Amendment and
illustrates that factors such as a juvenile arrestee’s age and circumstances
can override what otherwise may have been voluntary consent to a blood
test following the admonition. See Butler, 232 Ariz. at 88 ¶ 18. But it did not
implicitly suggest that consent given in response to the admin per se
admonition is involuntary, absent other circumstances, as we later held in
Valenzuela II. 239 Ariz. at 301 ¶ 2.
6
STATE V. WEAKLAND
Opinion of the Court
¶13 In sum, Butler did not address whether use of the admonition
was inherently coercive, did not clearly address its effect, and did not
expressly question its validity. In fact, Butler failed to meaningfully
acknowledge the two binding appellate cases authorizing use of the
language on the admin per se admonition—Campbell v. Superior Court, 106
Ariz. 542 (1971), and State v. Brito, 183 Ariz. 535 (App. 1995). Consequently,
Butler did not “unsettle” the law because it failed to repudiate Arizona
appellate courts’ existing authorization for use of the admonition.
¶14 Although Weakland strives to expand Butler’s holding
beyond its plain terms, Valenzuela II settles the issue and forecloses
Weakland’s claim that Butler “unsettled” the law concerning use of the
admin per se admonition. In Valenzuela II, this Court held that Campbell and
Brito constituted binding appellate precedent, sanctioning the language
used on the admin per se admonition, and affirmed that “[w]e neither
suggested that the admonition . . . misstated the law or was coercive, nor
ha[d] this Court ever questioned or overruled Campbell or Brito.” Valenzuela
II, 239 Ariz. at 309 ¶ 34. In doing so, we rejected the argument that
continued use of the admin per se admonition reflected “recurring or
systemic negligence” in the wake of Carrillo v. Houser, 224 Ariz. 463 (2010).
Id. In fact, Valenzuela II expressly declined to fault police for “failing to
anticipate that we would disapprove the admin per se [admonition] in the
wake of Carrillo” when Carrillo was “not dispositive of the issue” and when
Arizona courts had “continued to approve the admonition.” Id. Valenzuela
II leaves no doubt that, at the time of the decision, Arizona appellate courts
had continuously authorized use of the existing admin per se admonition.
¶15 That the defendant’s arrest in Valenzuela II preceded Butler,
whereas Weakland’s arrest followed it, is immaterial to our analysis and
conclusion that Arizona’s appellate courts continued to authorize use of the
admonition at the time of Weakland’s arrest. In fact, Valenzuela II cited State
v. Oliver, No. 2 CA-CR 2014-0359, 2015 WL 4924747 (Ariz. App. Aug. 18,
2015) (mem. decision), involving a post-Butler DUI arrest and warrantless
blood seizure that occurred after Weakland’s arrest, to illustrate the
proposition that “our courts have continued to approve the admonition.”
Valenzuela II, 239 Ariz. at 309–10 ¶ 34. In other words, this Court surveyed
the legal landscape pre- and post-Butler and concluded that, until its
decision in Valenzuela II, our appellate courts had continued to authorize
use of the admonition.
7
STATE V. WEAKLAND
Opinion of the Court
¶16 Indeed, Oliver was only one of several post-Butler appellate
decisions sanctioning police use of the admonition. See State v. Valenzuela
(Valenzuela I), 237 Ariz. 307, 310 ¶ 7, 315 ¶ 31 (App. 2015); see also State v.
Okken, 238 Ariz. 566, 571 ¶¶ 17–18 & n.1 (App. 2015) (discussing Butler and
the statutory requirement of “actual consent before a warrantless search
may be performed,” yet failing to mention deficiencies with the admonition
and focusing, instead, on “other factors” rendering consent involuntary);
State v. Pena, No. 2 CA-CR 2013-0241, 2014 WL 3407343, at *2 ¶¶ 6–8 (Ariz.
App. July 10, 2014) (noting Butler’s requirement that a breath test is “subject
to the Fourth Amendment’s constraints,” but citing the admonition as a
basis, in part, for valid consent); State v. Figueroa, No. 2 CA-CR 2012-0458,
2014 WL 287959, at *4–5 ¶¶ 19–21 (Ariz. App. Jan. 24, 2014) (mem. decision)
(citing Butler as requiring compliance with the Fourth Amendment for
blood draws, but finding that defendant consented, in the absence of police
force, after hearing the admonition).1 In each of these cases, the court of
appeals concluded “that the defendants’ consent, obtained in response to
the admonition, was voluntary” considering the totality of the
circumstances. See Weakland, 244 Ariz. at 84–85 ¶ 23. The dissents ignore
or dismiss these cases. But if Arizona’s appellate courts did not interpret
Butler as unsettling the law on the use of the admin per se admonition, it
would be unreasonable to fault the police for failing to do so. See Davis, 564
U.S. at 241 (stating that “penaliz[ing] the officer for the appellate judges’
error” “cannot logically contribute to the deterrence of Fourth Amendment
violations” (citations omitted)).
¶17 Justice Bolick assails the reasoning and result in Valenzuela II
concerning the good-faith exception even as he purports to rely upon it.
Specifically, he contends that Valenzuela II’s analysis of Bumper v. North
Carolina, 391 U.S. 543 (1968), and Schneckloth v. Bustamonte, 412 U.S. 218
(1973), demonstrates that, after Bumper, police should have known that the
admin per se admonition was coercive. See infra ¶ 43 (suggesting that
because Bumper and Johnson v. United States, 333 U.S. 10 (1948), directed the
1Justice Bolick asserts that our notice of these unpublished decisions does
not support our position because they cannot constitute binding appellate
authority pursuant to Arizona Supreme Court Rule 111(c). Infra ¶ 49 n.4.
We do not cite these unpublished decisions as authority, but rather as proof
of a factual point – that appellate courts continued to approve the
admonition after Butler.
8
STATE V. WEAKLAND
Opinion of the Court
outcome in Valenzuela II, “[i]t is very difficult to argue” that the holding in
Valenzuela II “should have come as a surprise”). Necessarily, he suggests
that Valenzuela II wrongly applied the good-faith exception. But Weakland
does not urge this Court to overrule Valenzuela II, and we see no reason to
revisit its holding here.
¶18 Havatone offers Weakland no safe harbor. In Havatone, this
Court declined to apply the good-faith exception to the exclusionary rule
when police directed a warrantless blood draw, based on alleged exigent
circumstances (dissipation of alcohol in the blood), on an unconscious
driver suspected of DUI who had been transported out of Arizona for
medical treatment. 241 Ariz. at 508 ¶ 5, 512 ¶ 23. We reasoned that police
“should have known that routinely directing blood draws from DUI
suspects who were sent out of state for emergency treatment, without
making a case-specific determination whether a warrant could be timely
secured, was either impermissible or at least constitutionally suspect”
because the police practice had “been discredited for over fifty years.” Id.
at 511 ¶ 20, 512 ¶ 24. We noted, further, that “no binding precedents
specifically authorized” the police practice. Id. at 512 ¶ 28.
¶19 Here, police operated in a distinctly different legal landscape
from that in Havatone. Unlike there, where courts had discredited the police
practice for over fifty years and no binding precedents specifically
authorized it, Arizona appellate courts had authorized police reliance on the
language used in the statutory admin per se admonition for over forty years
at the time of Weakland’s arrest. And even if Butler presaged future court
disavowal of the admonition, it did not foreclose its use. Cf. Leon, 468 U.S.
at 919 n.20 (holding that the good-faith exception requires “a reasonable
knowledge of what the law prohibits”). To the contrary, in Butler’s wake,
Arizona’s trial and appellate courts continued to implicitly or expressly
authorize use of the admonition.
IV.
¶20 We reaffirm our conclusion in Valenzuela II that, until that
decision, our courts had continued to authorize use of the admonition. It is
unreasonable to require the police to predict a shift in the law when our
trial and appellate courts failed to do so. The deterrent purpose of the
exclusionary rule does not apply here because the police followed binding
appellate precedent that persisted in Butler’s wake. We should not
9
STATE V. WEAKLAND
Opinion of the Court
endeavor to divine “unsettled” law where none exists merely to constrain
application of the good-faith exception. Such an approach turns the
purpose of the exclusionary rule on its head. It is the exclusionary rule, not
the good-faith exception to it, that we turn to as a “last resort.” See, e.g.,
Leon, 468 U.S. at 918–19 (reasoning that “even assuming that the
[exclusionary] rule effectively deters some police misconduct and provides
incentives for the law enforcement profession as a whole to conduct itself
in accord with the Fourth Amendment, it cannot be expected, and should
not be applied, to deter objectively reasonable law enforcement activity”).
We decline to invoke the rule to penalize the police for what can, at worst,
be described as appellate judges’ error in continuing to approve consent in
response to the admin per se admonition after Butler, and we will not
prescribe the “bitter pill” of exclusion where we find that police engaged in
neither deliberate, reckless, or grossly negligent conduct, nor recurring or
systemic negligence. See Davis, 564 U.S. at 237, 240–41.
¶21 We vacate the court of appeals’ opinion and affirm
Weakland’s convictions and sentences.
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STATE V. WEAKLAND
JUSTICE PELANDER, Dissenting
PELANDER, J., dissenting.
¶22 I respectfully disagree with the majority’s conclusion that the
good-faith exception to the exclusionary rule applies to this case.2 Although
I agree with Justice Bolick’s conclusion that “the continued use of the
admonition alone to establish voluntary consent was of dubious
constitutionality following [State v.] Butler, [232 Ariz. 84 (2013)],” infra ¶ 40
(Bolick, J., dissenting), I write separately to explain my reasoning because
my approach differs from his.
¶23 Weakland’s consent to a blood draw directly followed the
arresting officer’s telling her twice, pursuant to an “admin per se” form,
that “Arizona law requires you to submit to and successfully complete” the
blood test. In State v. Valenzuela (Valenzuela II), 239 Ariz. 299, 301 ¶ 2, 309
¶ 33 (2016), we held 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” for providing a blood sample and “cannot excuse the
failure to secure a warrant.” But we found that “[t]he good-faith exception
applie[d]” because the arresting officer “followed binding precedent that
had sanctioned use of the admonition read to Valenzuela” at the time of his
2012 arrest. Id. at 309 ¶¶ 32–33 (citing Campbell v. Superior Court, 106 Ariz.
542, 546 (1971), and State v. Brito, 183 Ariz. 535, 538–39 (App. 1995)).
¶24 The next year, in State v. Havatone, 241 Ariz. 506, 512 ¶ 28
(2017), this Court found the good-faith exception inapplicable when “no
binding precedents specifically authorized” the practice of warrantless,
nonconsensual blood draws from unconscious DUI suspects, and “Arizona
case law regarding a per se exigency was, at most, unsettled.” I dissented
in that case and would have applied the good-faith exception. Id. at 521
¶ 62 (Pelander, J., concurring in part and dissenting in part). But unlike
2 The United States Supreme Court has repeatedly debated the purported
costs and benefits of the judicially created exclusionary rule in its Fourth
Amendment jurisprudence. See, e.g., Utah v. Strieff, 136 S. Ct. 2056 (2016);
Hudson v. Michigan, 547 U.S. 586 (2006). But this case involves only the
good-faith exception to the exclusionary rule, not the underlying purposes,
policies, or continued viability of the rule itself, which the Supreme Court
still recognizes. And, as the majority acknowledges, the State “bears the
burden of establishing that the good-faith exception applies.” Supra ¶ 7.
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STATE V. WEAKLAND
JUSTICE PELANDER, Dissenting
Havatone, this case does not involve “a presumptively valid state statute”
that “specifically and expressly” authorized the practice in question. Id.
at 515 ¶ 38, 521 ¶ 63 (citing A.R.S. § 28-1321(C)). Nor does application of
the exclusionary rule in this case impose on officers an “expect[ation] to
anticipate or predict a future change in our case law.” Id. at 521 ¶ 63.
¶25 More recently, addressing facts predating United States v.
Jones, 565 U.S. 400 (2012), this Court found the good-faith exception applied
to officers’ installation of a GPS device on a suspect’s vehicle in 2010. State
v. Jean, 243 Ariz. 331, 342–43 ¶¶ 40–47 (2018). We reasoned that the officers
conducted the search “in objectively reasonable reliance” on prior, binding
United States Supreme Court cases, id. at 343 ¶ 47, and we rejected the
argument that “to qualify as ‘binding appellate precedent under Davis [v.
United States, 564 U.S. 229 (2011)],’ a case ‘must specifically authorize the
precise conduct under consideration,’” id. ¶ 45 (quoting United States v.
Katzin, 769 F.3d 163, 176 (3d Cir. 2014)).
¶26 One could argue, as the amicus curiae Arizona Attorneys for
Criminal Justice does, that some tension exists between Havatone and Jean.
Havatone interpreted and applied the good-faith exception narrowly,
finding “recurring or systemic negligence” that precluded application of
the exception, 241 Ariz. at 511 ¶ 21, in part because “Arizona case law in
effect at the time of Havatone’s blood test did not specifically authorize[]”
the precise conduct at issue, namely, the “particular police practice of
directing warrantless, nonconsensual blood draws from unconscious DUI
suspects absent exigent circumstances,” id. at 513 ¶ 30 (alteration in
original) (citation omitted) (internal quotation marks omitted); see also id.
at 512 ¶ 24. Jean, in contrast, took a less restrictive view, concluding that
the good-faith exception applied because “the rationale underpinning” the
prior Supreme Court precedent authorized the limited GPS monitoring in
that case, even though the Court had not specifically authorized that precise
conduct but only similar conduct in beeper cases. 243 Ariz. at 343 ¶ 45
(internal quotation marks omitted). These divergent views regarding the
scope of the good-faith exception are also illustrated in the majority and
dissenting opinions in Jean. Compare id. at 342–43 ¶¶ 40–47, with id. at 343–
45 ¶¶ 49–57 (Bales, C.J., dissenting in part and dissenting from the
judgment).
¶27 Importantly, contrary to Justice Bolick’s suggestion, infra ¶ 48,
Davis does not resolve this dispute. The outcome in Davis is consistent with
either approach, and language in Davis supports both views. In Davis,
12
STATE V. WEAKLAND
JUSTICE PELANDER, Dissenting
police officers engaged in the precise conduct specifically authorized by
Eleventh Circuit precedent. 564 U.S. at 239. The Court concluded that
relying on that precedent to engage in the same conduct authorized by it
was objectively reasonable. Id. at 239–41. But the Court did not limit
application of the good-faith exception to those circumstances. Instead, it
broadly held that “the exclusionary rule does not apply” “when the police
conduct a search in objectively reasonable reliance on binding appellate
precedent,” without setting forth the boundaries of that rule. Id. at 249–50;
see also id. at 232.
¶28 In my view, Jean’s formulation and application of the good-
faith exception is correct and better serves the values supporting the
exclusionary rule and this exception to it. See Davis, 564 U.S. at 240, 249;
Jean, 243 Ariz. at 343 ¶ 46. Thus, I agree with the majority on that point. See
supra ¶ 9. In a world with evolving technology and limited judicial
resources, the validity of police officers’ conduct should not hinge on
appellate courts previously having specifically authorized every particular
practice that officers might engage in or bear the risk that evidence will be
suppressed if a practice is subsequently declared unconstitutional. This, of
course, is especially true when a police officer can reasonably interpret
those appellate decisions that do exist as authorizing related or similar
practices based upon the rationales, principles, and reasoning that those
decisions set forth. Under those circumstances, it is hard to understand
what the deterrent value is in suppressing evidence when a future court
later determines that a practice is unconstitutional. As this Court aptly
observed in Jean, “Davis requires good faith and reasonableness, not a
crystal ball.” 243 Ariz. at 343 ¶ 45.
¶29 Any disparity between Havatone and Jean, however, is
inconsequential and neither affects nor changes the outcome here. Under
either approach to the good-faith exception, Butler sufficiently unsettled the
aggregate of relevant Arizona case law relating to police officers’ use of this
“admin per se” form to preclude application of the exception in this case.
Applying Havatone, Justice Bolick’s dissent explains why, at the time of
Weakland’s post-Butler arrest in 2015, “a blanket policy to read the
admonition but not to otherwise establish consent could not have been
made in good faith, and therefore the good-faith exception to the
exclusionary rule should not apply.” Infra ¶ 53. But in reaching that
conclusion, Justice Bolick’s dissent implicitly questions the reasoning and
13
STATE V. WEAKLAND
JUSTICE PELANDER, Dissenting
result in Valenzuela II and disregards Jean, while neither the majority nor I
do. See supra ¶¶ 9, 17.
¶30 Nonetheless, the same conclusion obtains under Jean. The
rationale, principles, and reasoning underlying this Court’s analysis in
Butler undermine the State’s claim that the aggregate of relevant Arizona
case law at the time of Weakland’s arrest could reasonably be understood
as authorizing the practice of obtaining constitutionally adequate consent
to blood testing by reading an “admin per se” form to an arrestee that
instructs the arrestee that he or she is “require[d]” to submit to testing.
Three reasons support this conclusion.
¶31 First, Butler expressly rejected the notion that Arizona’s
implied consent statute “requires” a person to submit to blood testing,
which directly contradicts the language in the “admin per se” form later
used when Weakland was arrested. This Court stated that the “consent”
under that statute “does not always authorize warrantless testing of
arrestees.” Butler, 232 Ariz. at 88 ¶ 17 (quoting Carrillo v. Houser, 224 Ariz.
463, 465 ¶ 10 (2010)). Rather, we stated that the implied consent law directs
an officer “to ask the arrestee to submit to the test, and the arrestee may then
refuse by declining to expressly agree to take the test.” Id. (emphasis added).
“If the arrestee refuses, the statute specifies that a warrant is required to
administer the test and the arrestee shall have his license suspended.” Id.
(emphasis added). These statements cannot reasonably be understood in
good faith as authorizing an officer to admonish DUI arrestees that they are
“require[d]” to submit to testing.
¶32 Second, Butler held that “independent” of the implied consent
statute, “the Fourth Amendment requires an arrestee’s consent to be
voluntary to justify a warrantless blood draw.” Id. ¶ 18. That statement
cannot reasonably be understood in good faith as authorizing an officer to
assume or infer that an arrestee’s consent for Fourth Amendment purposes
is voluntary based solely on (i.e., entirely dependent upon) the fact that the
arrestee submitted to testing pursuant to an admonition that, for the
reasons discussed above, Butler concluded erroneously misstates the
implied consent statute.
¶33 Third, in support of the Butler trial court’s finding that
voluntary consent was lacking in that case, we noted that the officer
(pursuant to the admin per se form) had twice told the suspect that he was
“required to submit” to blood testing. Id. at 89 ¶ 20. Far from authorizing
14
STATE V. WEAKLAND
JUSTICE PELANDER, Dissenting
the practice of reading that form to an arrestee and then assuming or
implying based on that fact alone that the arrestee’s subsequent submission
to testing constituted voluntary consent, this Court included that precise
fact as a reason for upholding the trial court’s finding that the suspect’s
consent was involuntary. Our including that fact as a reason for finding an
arrestee’s consent involuntary for Fourth Amendment purposes cannot
reasonably be understood in good faith as authorizing an officer to obtain
constitutionally adequate consent to blood testing by reading an “admin
per se” form to an arrestee that instructs the arrestee that he or she is
“require[d]” to submit to testing.
¶34 The majority contends, however, that “Butler did not
‘unsettle’ the law.” Supra ¶ 13. According to the majority, “the sufficiency
of consent given in response to the admin per se form alone” was not at
issue in Butler, supra ¶ 12, and that case “failed to meaningfully
acknowledge the two binding appellate cases authorizing use of the
language on the admin per se form—Campbell v. Superior Court, 106 Ariz.
542 (1971), and State v. Brito, 183 Ariz. 535 (App. 1995).” Supra ¶ 13. These
assertions are unpersuasive.
¶35 Butler did address the sufficiency of consent after the
admonition—indeed, we expressly rejected the State’s arguments that “the
‘consent’ in § 28–1321(A) either constitutes an exception to the warrant
requirement or satisfies the Fourth Amendment’s requirement that consent
be voluntary.” 232 Ariz. at 88 ¶ 17. Because the minor involved in Butler
did consent—both verbally and in writing—after being given the per se
admonition, see id. at 86 ¶ 4, our affirming the juvenile court’s ruling that
the consent nonetheless was involuntary necessarily implies that the mere
fact that a suspect agrees to the test after the admonition does not suffice to
establish voluntariness. With respect to Campbell and Brito, neither of those
cases expressly discussed whether, apart from the implied consent statute,
voluntary consent is required for a warrantless blood draw or whether
acquiescence to a blood draw after the admonition itself establishes such
consent (the issues Butler did decide). Thus, the majority’s assertion that
Butler failed to acknowledge “binding appellate cases” is incorrect. Supra
¶ 13. Indeed, in Butler the State did not contend that Campbell—much less
Brito—somehow established that the consent involved in Butler was
voluntary. Thus, there was no reason in Butler to discuss Campbell or Brito
because they were not pertinent to the issues before the Court, much less
“binding.” Although those cases justified an officer’s good-faith use in 2012
15
STATE V. WEAKLAND
JUSTICE PELANDER, Dissenting
of the admin per se form that contained the “Arizona law requires”
language, see Valenzuela II, 239 Ariz. at 301 ¶¶ 4–5, 309–10 ¶¶ 32–34, that
cannot be said post-Butler for the 2015 arrest and search of Weakland here.
¶36 Application of the good-faith exception in this case requires
the Court to take an even broader view of that exception than set forth in
Jean. In Jean, we applied the good-faith exception because “the rationale
underpinning” prior Supreme Court precedent could be logically and
reasonably extended from beepers to GPS monitoring. 243 Ariz. at 343 ¶ 45
(quoting Katzin, 769 F.3d at 173–74). Significantly, though, at the time of the
police officers’ GPS monitoring in Jean, no United States Supreme Court
case had explicitly or implicitly overruled or questioned its prior case law
or otherwise suggested that GPS monitoring might be or likely is
impermissible. That is precisely what made the officers’ reliance on “the
rationale underpinning” the prior cases reasonable. Stated differently, the
officers in Jean could extract principles from the beeper cases and
reasonably extend those principles to a new fact pattern, GPS monitoring,
but they did so without ignoring authority cutting the other direction.
Under those circumstances, this Court correctly found no deterrent value
in suppressing the GPS monitoring evidence and correctly applied the
good-faith exception. Id. ¶¶ 45–47.
¶37 But that is not the situation here. If we assume (and absent
any facts in the record, we can only assume) that the police officer in this
case relied on this Court’s interpretation of the implied consent statute in
Campbell (a 1971 decision) and the court of appeals’ decision in Brito (a 1995
decision), the officer did so while ignoring this Court’s contrary
interpretation of the implied consent statute and analysis of constitutionally
adequate consent in a subsequent, and much more recent, case. Butler (our
2013 decision) plainly cast doubt on whether the “admin per se” form
accurately stated the law and whether a person’s submission to testing after
merely being read those admonitions could constitute voluntary consent
for purposes of the Fourth Amendment, obviating the need for a search
warrant.3 Unlike in Jean, arguably there was authority on both sides of the
3 Indeed, given this Court’s ruling in Butler, I warned that “the safest course
of action for law enforcement might simply be to obtain search warrants,
when reasonably feasible, for obtaining blood samples in DUI
investigations.” 232 Ariz. at 92 ¶ 37 (Pelander, J., concurring). Had that
16
STATE V. WEAKLAND
JUSTICE PELANDER, Dissenting
scale here. Furthermore, unlike in Davis, the police officers did not follow,
act in “strict compliance” with, or “scrupulously adhere[]” to the aggregate
of relevant Arizona case law “to the letter.” 564 U.S. at 239, 249. Nor could
they have done so because the relevant law was, at best, unclear. But rather
than “err on the side of constitutional behavior,” Havatone, 241 Ariz. at 513
¶ 29 (quoting United States v. Johnson, 457 U.S. 537, 561 (1982)), the officer
proceeded in the face of “unsettled” law, id. at 512 ¶ 28.
¶38 Therefore, under these circumstances, unlike in Jean and
Davis, there is deterrent value in suppressing the blood draw evidence.
Although Havatone, in my view and the majority’s, interpreted the good-
faith exception too narrowly, this Court correctly stated there that in “‘close’
cases” police officers should err on the side of protecting citizens’
constitutional rights. See id. at 513 ¶ 29 (quoting Johnson, 457 U.S. at 561).
The arresting officer did not do so here.
¶39 Finally, in determining for Fourth Amendment purposes
whether a DUI arrestee’s consent was voluntary, we consider the totality of
circumstances, which might include but are not necessarily limited to the
arrestee submitting to blood testing after being given the (now invalid)
“required by law” admonition. See Valenzuela II, 239 Ariz. at 305–06 ¶ 21
(holding that “a trial court should examine the totality of the circumstances
to decide whether consent was voluntary, even when given after a law
enforcement officer’s assertion of lawful authority to search”); Butler, 232
Ariz. at 87 ¶ 13 (“Voluntariness is assessed from the totality of the
circumstances.”). In this case, however, the record does not reflect any facts
that bear on or might support a finding of voluntary consent other than
Weakland’s submission to blood testing after the “required by law”
admonition was given to her. And, at oral argument in this Court, the State
conceded that no other facts suggest voluntary consent under the totality of
circumstances. Accordingly, I respectfully dissent from the majority’s
holding that the good-faith exception applies to this case and would instead
apply the exclusionary rule and reverse the trial court’s order denying
Weakland’s motion to suppress.
warning been heeded almost two years later when Weakland was arrested,
the State’s reliance on the good-faith exception would be unnecessary.
17
STATE V. WEAKLAND
JUSTICE BOLICK, joined by CHIEF JUSTICE BALES, Dissenting
BOLICK, J., joined by BALES, C.J., dissenting.
¶40 The sole question before the Court is whether, following our
decision in State v. Butler, 232 Ariz. 84 (2013), it was objectively reasonable
for a police department to view acquiescence to the admonition at issue,
standing alone, to establish voluntary consent to a blood draw, thus
allowing admission of the blood test as evidence notwithstanding that the
search violated Weakland’s constitutional rights. Because the continued
use of the admonition alone to establish voluntary consent was of dubious
constitutionality following Butler, I respectfully dissent.
¶41 In Davis v. United States, the U.S. Supreme Court held that
evidence resulting from an unconstitutional search would be suppressed
unless the police were acting in good faith on “binding appellate precedent
[that] specifically authorizes a particular police practice.” 564 U.S. 229, 241
(2011). In State v. Havatone, we held that “[w]hen the Fourth Amendment
violation occurred not as the result of an officer’s fact-specific
determination that obtaining a warrant is infeasible but pursuant to
department practice making such determination unnecessary, we impute
to the law enforcement agency the responsibility to assure that unlawful
seizures will not occur.” 241 Ariz. 506, 511 ¶ 22 (2017) (citing Davis, 564 U.S.
at 240). Application of the exclusionary rule where the law is “unsettled,”
or the constitutionality of a practice is “dubious,” provides deterrence
against unconstitutional behavior. Id. at 512–13 ¶ 29. Indeed, if the rule “is
not applied in ‘close’ cases, ‘law enforcement officials would have little
incentive to err on the side of constitutional behavior.’” Id. at 513 ¶ 29
(quoting United States v. Johnson, 457 U.S. 537, 561 (1982)).
¶42 The use of the admonition alone to establish voluntary
consent was questionable long before Butler. The U.S. Supreme Court held
in Bumper v. North Carolina that “[w]hen a prosecutor seeks to rely upon
consent to justify the lawfulness of a search, he has the burden of proving
that the consent was, in fact, freely and voluntarily given. This burden
cannot be discharged by showing no more than acquiescence to a claim of
lawful authority.” 391 U.S. 543, 548–49 (1968) (footnote omitted). Yet that
is exactly the practice on which the majority bases the good-faith exception
here, fifty years later.
18
STATE V. WEAKLAND
JUSTICE BOLICK, joined by CHIEF JUSTICE BALES, Dissenting
¶43 Indeed, when we ruled the practice unconstitutional in State
v. Valenzuela (Valenzuela II), the Court acknowledged that it was applying
well-settled law when it stated that “[t]he Bumper line of cases survives to
invalidate any consent given only in acquiescence to an assertion of a lawful
authority to search.” 239 Ariz. 299, 304 ¶ 17 (2016) (citing Florida v. Royer,
460 U.S. 491, 497 (1983) (plurality opinion)). The Court read Bumper and
Schneckloth v. Bustamonte, 412 U.S. 218 (1973), in tandem “as requiring a
court to examine the circumstances surrounding an assertion of lawful
authority to search to determine whether the consent was sufficiently
independent of the assertion to remove its taint. If not, the consent was not
freely and voluntarily given.” Valenzuela II, 239 Ariz. at 304 ¶ 17. In
concluding that the State failed to meet its burden to demonstrate that
Valenzuela’s consent to the tests was voluntary, the Court remarked that
“Bumper and Johnson [v. United States, 333 U.S. 10 (1948)] direct this
outcome.” Valenzuela II, 239 Ariz. at 306 ¶ 22. It is very difficult to argue
that an outcome directed by decisions more than a half-century ago should
have come as a surprise.
¶44 After our ruling in Butler, reliance solely on acquiescence to
an admonition asserting legal authority to establish voluntariness was even
more untenable. At the very least, the law was at best unsettled, which is
an insufficient basis for the good-faith exception to the exclusionary rule.
See Havatone, 241 Ariz. at 512–13 ¶ 29; see also United States v. Lara, 815 F.3d
605, 613 (9th Cir. 2016) (holding the good-faith exception does not apply
where “the appellate precedent, rather than being binding, is (at best)
unclear”). In Butler, the State argued that tests administered under
A.R.S. § 28-1321 were not subject to a Fourth Amendment voluntariness
analysis—an argument we rejected. 232 Ariz. at 87 ¶¶ 9–10. And we
rejected the State’s argument that “consent” in the statute satisfies the
Fourth Amendment’s requirement that consent be voluntary. Id. at 88
¶¶ 17–18. We held that, based on the totality of the circumstances, “the
Fourth Amendment requires an arrestee’s consent to be voluntary to justify
a warrantless blood draw.” Id. ¶ 18. Given that it was already well
established that a prosecutor could not prove voluntariness based solely on
assertion of authority, it should have been clear after Butler that
acquiescence to the admonition alone would not suffice. Indeed, it is
difficult to imagine a lawyer advising a police department that Butler raised
no serious doubt about such a policy.
19
STATE V. WEAKLAND
JUSTICE BOLICK, joined by CHIEF JUSTICE BALES, Dissenting
¶45 The majority does not dispute that the police should not rely
on unsettled doctrine. Instead, it asserts that the term “unsettled” is
“opaque,” supra ¶ 10, which it is not. See Unsettled, Webster’s Third New
International Dictionary (3d ed. 2002) (defining “unsettled” as “not decided
or determined” or “not resolved or worked out”). The majority contends
that Butler did not leave the law unsettled because Butler “did not address
whether use of the admonition was inherently coercive, did not clearly
address its effect, and did not expressly question its validity.” Supra ¶ 13.
The majority is conflating two distinct issues: (1) whether acquiescence in a
search after the admonition establishes that it was voluntary for Fourth
Amendment purposes without regard to other circumstances, a proposition
Butler clearly rejects; and (2) whether the use of the admonition is inherently
coercive and any consent given in response is therefore involuntary, the
issue later addressed in Valenzuela II. The holding in Butler on the first issue
was sufficient to cast doubt on resolution of the second issue. The Court
noted that even under § 28-1321(A), “the officer is directed to ask the
arrestee to submit to the test, and the arrestee may then refuse by declining
to expressly agree to take the test. . . . We hold now that, independent of
§ 28-1321, the Fourth Amendment requires an arrestee’s consent to be
voluntary to justify a warrantless blood draw.” Butler, 232 Ariz. at 88
¶¶ 17–18. Weakland’s arrest was after Butler, and consent was not
voluntarily conferred, as required by Butler. Thus, the warrantless blood
draw, which all now concede was unconstitutional, could not have
occurred in good faith.
¶46 The majority then says that “even if Butler presaged future
court disavowal of the admonition, it did not foreclose its use.” Supra ¶ 19.
That depiction states the constitutional equation backward: we do not
determine good faith based on whether the police have engaged in a
practice the courts have clearly foreclosed, but rather on whether the courts
have expressly authorized the practice. Davis, 564 U.S. at 241. And it is not
enough if the question is debatable. See Havatone, 241 Ariz. at 512–13 ¶ 29.
The exclusionary rule’s deterrent effect against unconstitutional
warrantless searches is hardly advanced if the state can avoid consequence
merely by plausibly asserting that it did not read binding precedent as
unequivocally foreclosing a particular practice.
¶47 The majority counters that “Arizona appellate courts had
authorized police reliance on the language used in the statutory admin per
se admonition for over forty years at the time of Weakland’s arrest.” Supra
20
STATE V. WEAKLAND
JUSTICE BOLICK, joined by CHIEF JUSTICE BALES, Dissenting
¶ 19. Indeed, courts frequently focused on the admonition’s language,
especially in the context of suspending a driver’s license for failure to
consent. But what our courts have never done, and what is at issue here, is
to authorize the use of the admonition, standing alone, to establish
voluntary consent under the Fourth Amendment, precisely the issue
presented in Butler. Absent such authority, or in light of an unsettled state
of law, we should not find the good-faith exception applicable.
¶48 The majority contends we were wrong in Havatone to require
binding appellate authority specifically authorizing the practice in
question, instead preferring the more flexible good-faith standard
articulated in State v. Jean, 243 Ariz. 331 (2018). Supra ¶ 9. Of course, the
requirement of binding appellate precedent specifically authorizing the
practice in question originated not in Havatone but in the U.S. Supreme
Court’s decision in Davis. See 564 U.S. at 241. Regardless, Justice Pelander,
who authored the relevant standard in Jean, points out in his separate
dissenting opinion that under either the Jean or Havatone standard, it is clear
that “Butler sufficiently unsettled the aggregate of relevant Arizona case
law relating to police officers’ use of this ‘admin per se’ form to preclude
application of the exception in this case.” Supra ¶ 29.
¶49 The majority contends, supra ¶ 13, that the requisite binding
appellate authorization is supplied by Campbell v. Superior Court, 106 Ariz.
542 (1971), and State v. Brito, 183 Ariz. 535 (App. 1995), abrogated by
Valenzuela II, 239 Ariz. 299, which as the Court observed in Valenzuela II had
not been “questioned or overruled,” 239 Ariz. at 309 ¶ 34.4 But neither case
provides the express authorization necessary to avoid consequence for the
Fourth Amendment violation.
¶50 In Campbell, the Court considered various challenges to the
implied consent law in the context of a DUI suspect’s refusal to take a breath
test, which resulted in a suspended license. 106 Ariz. at 544–45. As relevant
here, the Court concluded in a single sentence that the statute did not
violate the Fourth Amendment. Id. at 554 (citing Schmerber v. California, 384
4 The majority also cites unpublished court of appeals decisions that
ostensibly support its position that appellate decisions sanctioned police
use of the admonition. Supra ¶ 16. But they cannot constitute the requisite
binding appellate authority required to trigger the application of the good-
faith exception. See Ariz. R. Sup. Ct. 111(c).
21
STATE V. WEAKLAND
JUSTICE BOLICK, joined by CHIEF JUSTICE BALES, Dissenting
U.S. 757 (1966)). Nor have we ruled the statute unconstitutional in
Valenzuela II or here. The Court’s core holding in Campbell, applicable in the
context of a civil proceeding, was that it is “reasonable under the
circumstances to require a person to submit to a chemical test of his blood,
brea[t]h or urine if arrested for driving while intoxicated or face a six
months suspension of his driver’s license.” 106 Ariz. at 546. No warrant or
voluntariness issues were before the Court in Campbell, and no issues
relating to civil penalties are before us here. Given the markedly different
context and issues presented, Campbell provides scant (if any) support for
the proposition that acquiescence to the admonition establishes voluntary
consent.
¶51 In Brito, the court of appeals dealt with a criminal defendant
who also refused to take a breath test—again presenting no issues involving
consent or warrants. 183 Ariz. at 537. Rather, the defendant argued that
the admonition misstated the law. Id. at 538. It is somewhat difficult to
understand the court’s holding, for it says both that a defendant does not
have an “unfettered right to refuse” the tests, but also that “he may refuse
the request” although “the refusal has consequences.” Id. Regardless, like
Campbell, the opinion says nothing about when a warrant is required or
whether acquiescence to the admonition establishes voluntariness. Thus,
neither decision authorizes reliance on the admonition to establish consent.
¶52 Our subsequent discussions of Butler demonstrate that the
decision, at the least, unsettled the law. In Havatone, we emphasized that
Butler held that § 28-1321 “does not relieve the state of establishing
voluntary consent . . . to justify warrantless blood draws from DUI
suspects.” 241 Ariz. at 510 ¶ 16 (citing Butler, 232 Ariz. at 87–88 ¶¶ 12–13,
18). In Valenzuela II, the Court observed that “we have rejected the
contention that the implied consent law operates to prospectively provide
consent to a search for Fourth Amendment purposes.” 239 Ariz. at 307 ¶ 25
(citing Butler, 232 Ariz. at 88 ¶ 18). The Court stated that it has “focused on
the totality of the circumstances, including but not limited to an officer’s reading
of an admin per se form, in determining whether a DUI suspect’s consent to
search was freely and voluntarily given.” Id. at 305 ¶ 20 (emphasis added)
(citing Butler, 232 Ariz. at 88–89 ¶¶ 19–20). Given these apt readings of
Butler, it is difficult to apprehend Valenzuela II’s holding as upending settled
and binding appellate precedent rather than as a logical next step that
resolved any lingering uncertainty.
22
STATE V. WEAKLAND
JUSTICE BOLICK, joined by CHIEF JUSTICE BALES, Dissenting
¶53 By the time of Weakland’s 2015 arrest, our decisions clearly
established that the implied consent statute “generally does not authorize
law enforcement officers to administer the test without a warrant unless the
arrestee expressly agrees to the test,” Carrillo v. Houser, 224 Ariz. 463, 463
¶ 1 (2010); and that constitutionally, the State must prove under the totality
of the circumstances that the consent was voluntary and express, and not
merely implied, Butler, 232 Ariz. at 88 ¶¶ 18–19. At that point, a blanket
policy to read the admonition but not to otherwise establish consent could
not have been made in good faith, and therefore the good-faith exception
to the exclusionary rule should not apply. At the same time, excluding the
evidence here would incentivize law enforcement officials to more carefully
monitor and apply the law, to err on the side of obtaining a warrant, and
therefore to avoid the need for a court to exclude evidence in future cases.
¶54 The majority’s opinion significantly expands the good-faith
exception. Instead of requiring binding appellate precedent that expressly
authorizes the practice, it finds good faith where there is a smidgeon of
authority and an abundance of doubt. As Justice Pelander aptly
characterizes it, instead of erring on the side of constitutional behavior, the
police “proceeded in the face of ‘unsettled’ law.” Supra ¶ 37. For those
reasons, with great respect to my colleagues, I dissent.
23