Thе STATE of Arizona, Petitioner, v. Hon. Jane A. BUTLER, Judge Pro Tempore of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent Judge, Tyler B., Real Party in Interest.
No. CV-12-0402-PR.
Supreme Court of Arizona, En Banc.
May 30, 2013.
302 P.3d 609
Hernandez & Robles PC by Joshua F. Hamilton, Tucson, Attorneys for Tyler B.
Arizona Attorneys for Criminal Justice by David J. Euchner, Chandler, Attorneys for Amicus Curiae Arizona Attorneys for Criminal Justice.
Nesci & St Louis PLLC by James Nesci, Tucson, Attorneys for Amicus Curiae National College of DUI Defense, Inc.
ACLU Foundatiоn of Arizona by Daniel Pochoda, Kelly J. Flood, Phoenix, and Perkins Coie LLP by Jean-Jacques Cabou, Thomas D. Ryerson, Phoenix, Attorneys for Amicus Curiae ACLU Foundation of Arizona.
Juvenile Law Center by Lourdes M. Rosado, Philadelphia, PA, and Nuccio & Shirly by Jeanne Shirly, Tucson, Attorneys for Amici Curiae Juvenile Law Center, Center on Children and Families, Central Juvenile Defender Center, Children and Family Justice Center, The Children‘s Law Center Inc., Children & Youth Law Clinic, Civitas ChildLaw Center, Juvenile & Special Education Law Clinic/University of the District of Columbia, Juvenile Justice Project of Louisiana, Justice Policy Institute, Natiоnal Association of Criminal Defense Lawyers, National Center for Youth Law, National Juvenile Defender Center, National Juvenile Justice Network, Northeast Juvenile Defender Center, Pacific Juvenile Defender Center, Public Defender Service for the District of Columbia, Rutgers School of Law Camden Children‘s Justice Clinic, Rutgers Urban Legal Clinic, San Francisco Office of the Public Defenders, University of Michigan Juvenile Justice Clinic, Neelum Arya, Tamara Birckhead, Susan L. Brooks, Michele Deitch, Jeffrey Fagan, Barbara Fed-
OPINION
BALES, Vice Chief Justice.
¶1 Arizona‘s implied consent statute,
I.
¶2 On February 17, 2012, Tyler B., a sixteen-year-old high school student, and two friends arrived late to school. A school monitor smelled marijuana on the boys and also saw drug paraphernalia in Tyler‘s car. School officials detained the boys in separate rooms and contacted the sheriff‘s office.
¶3 A deputy sheriff soon arrived and read Miranda warnings to Tyler. In the presence of several school officials, Tyler admitted that he had driven his car to school after smoking marijuana and that he owned some of the drug paraphernalia in the car. The deputy informed Tyler that he was under arrest for DUI and other offenses. Tyler became agitated and the deputy placed him in handcuffs. The deputy left Tyler with the assistant principal for about ten minutes while retrieving a phlebotomy kit to do a blood draw.
¶4 When the deputy returnеd to the room, he saw that Tyler had calmed down, so he removed the handcuffs from the youth. He read Tyler an “implied consent admonition” twice, first verbatim and then in “plain English.” The admonition provided in relevant part:
Arizona law requires you to submit to and successfully complete tests of breath, blood or other bodily substance as chosen by the law enforcement officer to determine alcohol concentration or drug content. The law enforcement officer may require you to submit to two or more tests. You are required to successfully complete each of the tests.
. . .
If the test results are not available . . . or indicate any drug defined in
ARS 13-3401 or its metabolite, without a valid prescription, your Arizona driving privilege will be suspended for not less than 90 consecutive days.If you refuse to submit or do not successfully complete the specified tests, your Arizona driving privilege will be suspended for 12 months, or for two years if there is a prior implied consent refusal, within the last 84 months, on your record. You are, therefore, required to submit to the spеcified tests.
Tyler agreed verbally and in writing to have his blood drawn, and the deputy drew two vials of Tyler‘s blood.
¶5 The State charged Tyler with DUI. Tyler moved to suppress evidence of the blood draw, arguing that his consent had not been voluntary and that, as a minor, he lacked the legal capacity to consent. The juvenile court granted the motion, finding that the blood draw violated Arizona‘s Parents’ Bill of Rights (“PBR“),
¶6 On the State‘s petition for special action relief, the court of appeals reversed the juvenile court‘s ruling. State v. Butler, 231 Ariz. 42, 45 ¶ 11, 290 P.3d 435, 438 (App. 2012). The court first held that the PBR did not apply because the deputy was acting within the scope of his official duties. Id. at 44 ¶ 6, 290 P.3d at 437. It then held that the Fifth Amendment did not apply because the blood was not testimonial evidence. Id. at 45 ¶ 10, 290 P.3d at 438. Stating that “the informed consent statutе presents no Fourth Amendment issue,” the court of appeals held that the juvenile court abused its discretion in suppressing the blood draw evidence. Id. ¶ 10 n. 6.
¶7 We granted review because this case raises questions of first impression and statewide importance. We have jurisdiction under Article 6, Section 5(3) of Arizona‘s Constitution and
II.
¶8 The Fourth Amendment provides, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . .”
¶9 Tyler argues that a blood draw is a search subject to the Fourth Amendment and, to be valid, requires either a warrant or an exception such as voluntary consent. The State responds that every Arizona motorist givеs “implied consent” under
¶10 Contrary to the State‘s argument, a compelled blood draw, even when administered pursuant to
¶11 McNeely also forecloses the State‘s arguments that requiring warrants for blood draws will unduly burden law enforcement officials or render Arizona‘s implied consent law meaningless. “In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.” Id. at 1561.
¶12 In general, under the Fourth Amendment, warrantless searches “are per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions.” Arizona v. Gant, 556 U.S. 332, 338, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). One such exception is exigent circumstances, but the State has not argued that this exception authorized the blood draw here.
¶13 Consent can also allow a warrantless search, provided the consent is voluntary. Schneckloth v. Bustamonte, 412 U.S. 218, 226-28, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Voluntariness is assessed from the totality of the cirсumstances. Id. at 227. Relevant circumstances include the suspect‘s age and intelligence as well as the length of detention. See id. at 226-27, 229.
¶14 We reject the State‘s contention that age should be disregarded in assessing a juvenile‘s consent to a blood draw. In various contexts, the law recognizes a juvenile‘s age as a relevant consideration. See, e.g., J.D.B. v. North Carolina, — U.S. —, 131 S.Ct. 2394, 2399, 2406, 180 L.Ed.2d 310 (2011) (holding that child‘s age is relevant, although not necessarily determinative, in as-
¶15 Consent can be voluntary for purposes of the Fourth Amendment in circumstances that would not establish voluntariness under the Fifth Amendment. See Bustamonte, 412 U.S. at 234, 240 (holding that, although Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), requires an arrestee to be advised of right to remain silent in order for waiver to be valid, knowledge of right to withhold consent is just one factor in determining voluntariness of a consent to search). But, when the accused is a juvenile, factors such as age and the presence of parents are properly considered when assessing the voluntariness of consent to a search, just as they are relevant in assessing the voluntariness of a confession. Cf. In re Andre M., 207 Ariz. at 485 ¶ 11, 88 P.3d at 555 (noting in the Fifth Amendment context that parents can “help ensure that a juvenile will not be intimidated, coerced or deceived“).
¶16 This Court has previously held that, for an officer to administer a test of breath or bodily fluids on an arrestee without a search warrant under
¶17 The State unconvincingly argues that the “consent” in
¶18 We hold now that, independent of
¶19 Voluntariness is a question of fact, Bustamonte, 412 U.S. at 248-49, and “[w]e review the trial court‘s voluntariness finding for abuse of discretion,” State v. Cota, 229 Ariz. 136, 144 ¶ 22, 272 P.3d 1027, 1035 (2012) (reviewing voluntariness of confession). The State has the burden of proving that consent to a search is “freely and voluntarily given.” Bumper v. North Carolina, 391 U.S. 543, 548-50, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968).
¶20 Although Tyler did not testify at the suppression hearing, sufficient evidence supports the juvenile court‘s finding that he did not voluntarily consent to the blood draw. At the time, Tyler was nearly seventeen and in eleventh grade. He had been arrested once previously, but not adjudicated delinquent. Tyler was detained for about two hours in a school room in the presence of school officials and a deputy. Neither of his parents was present. Tyler initially was shaking and visibly nervous. When he became loud and upset after being told he was being arrested, the deputy placed him in handcuffs until he calmed down. A
¶21 Viewing the facts in the light most favorable to sustaining the ruling below, we hold that the juvenile court did not abuse its discretion by ruling that Tyler‘s consent was involuntary and granting the motion to suppress. We decline to address Tyler‘s arguments that he lacked the legal capacity to consent and that the Arizona Constitution provides greater protection than the Fourth Amendment in this context.
III.
¶22 We also decline to address Tyler‘s argument that the blood draw must be suppressed because it violated the PBR. The statute provides that parents have a “right to consent in writing before any record of the minor child‘s blood or deoxyribonucleic acid is created, stored or shared.”
IV.
¶23 For the foregoing reasons, we reverse the decision of the court of appeals and remand the case to the superior court for proceedings consistent with this opinion.
CONCURRING: REBECCA WHITE BERCH, Chief Justice, ROBERT M. BRUTINEL and ANN A. SCOTT TIMMER, Justices.
PELANDER, Justice, concurring.
¶24 As a matter of statutory interpretation, we previously held that, absent a search warrant, Arizona‘s “implied consent” statute,
¶25 As the majority notes, voluntariness issues often are fact-intеnsive and are assessed from the totality of the circumstances. Supra ¶ 13 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)). The majority correctly observes that we generally review rulings on motions to suppress evidence for an abuse of discretion, supra ¶¶ 8, 19, and finds no such abuse in the trial court‘s ruling, supra ¶ 21. I write separately to express concern with indiscriminately applying those principles and to suggest, for future purposes only, that abuse-of-discretion review might not be appropriate in cases such as this.
¶26 Only the deputy sheriff and Tyler‘s father testified at the suppression hearing in this case. Significantly, the pertinent facts are undisputed and the juvenile court‘s ruling is not based on witness credibility, weighing of conflicting evidence, or discretionary de-
¶27 Recently, the Vermont Supreme Court thoroughly expounded on the appropriаte standard of appellate review for voluntariness-of-consent issues. State v. Weisler, 190 Vt. 344, 35 A.3d 970 (2011). An appellate court, of course, appropriately defers “to the trial court‘s underlying findings of historical fact” as a “fundamental principle of appellate review.” Id. at 976, 985; see also Chapple, 135 Ariz. at 297 n. 18, 660 P.2d at 1224 n. 18. But as the Vermont court observed, Schneckloth did not address the subject of appellate review, and “[s]imply labeling consent to search as a question of fact to be determined from the totality of the circumstances” at the trial court level “does little to advance the standard-of-rеview analysis.” Weisler, 35 A.3d at 977. Noting that “appellate courts have traditionally reviewed and resolved independently the question of voluntariness in order to ‘guide police, unify precedent, and stabilize the law,‘” id. at 985 (quoting Thompson v. Keohane, 516 U.S. 99, 115, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995)), the Weisler court held that “a trial court‘s decision on the question of the voluntariness of a consent to search, and thus the ultimate constitutional validity of the search, must be reviewed independently . . . on appeal,” id. at 983.
¶28 Vermont is not alone. Other courts also follow this approach. See, e.g., United States v. Lewis, 921 F.2d 1294, 1301 (D.C.Cir. 1990) (conducting de novo review of a trial court‘s finding of involuntary consent when facts were uncontested and government presented uncontroverted evidence on that issue); United States v. Garcia, 890 F.2d 355, 359-60 (11th Cir. 1989) (same); State v. $217,590.00 in U.S. Currency, 18 S.W.3d 631, 633 (Tex. 2000) (assessing whether the trial court‘s factual findings demonstrate voluntariness under the totality of the circumstances is a question of law); State v. Hansen, 63 P.3d 650, 663 (Utah 2002) (“While consent is a factual finding, voluntariness is a legal conclusion, which is reviewed for correctness.“); State v. Phillips, 218 Wis.2d 180, 577 N.W.2d 794, 800 (1998) (rejecting proposition that the standard of appellate review “turn[s] on whether the underlying determination of the [trial] court was fact-specific“); see also Weisler, 35 A.3d at 976, 980 (collecting cases).
¶29 The analyses of those courts would support de novo review of rulings on whether an arrestee‘s consent to search was voluntary or involuntary, at least when, as here, the underlying facts are undisputed and the trial court‘s ruling is not based on conflicting evidence or credibility determinations. This Court has not yet engaged in the type of nuanced explication found in cases such as Weisler on the appropriate standard of appellate review for Fourth Amendment voluntariness rulings. This, however, is not the case in which we should do so. The parties have not raised or argued аny issues relating to the standard of review, but rather concede that abuse-of-discretion review applies. Accordingly, the Court appropriately applies that standard in deciding this particular case.
¶30 Stating that voluntariness determinations are fact-intensive inquiries, based on the totality of circumstances, and subject to abuse-of-discretion review, however, does not directly answer the ultimate question: What is the test or standard for establishing valid,
¶31 Applying those standards, only with some difficulty do I agree with the majority that the juvenile court did not abuse its discretion in finding Tyler‘s consent was involuntary. Cf. Chapple, 135 Ariz. at 297 n. 18, 660 P.2d at 1224 n. 18 (When trial court determinations hinge not on “conflicting procedural, factual or equitable considerations,” but rather are made on undisputed facts, “resolution of the question is one of law or logic,” obligating us “to look over the shoulder’ of the trial judge and, if appropriate, substitute our judgment for his or hers.“). But based on the uncontroverted facts in this case, were de novo review applicable here, I would readily conclude that the State met its burden of proving by a prеponderance of the evidence that Tyler‘s consent to the warrantless blood draw was voluntary and, therefore, complied with the Fourth Amendment. See
¶32 The majority appropriately recites certain facts to support the conclusion that the juvenile court did not abuse its discretion in finding Tyler‘s consent involuntary. Supra ¶¶ 2-4, 20. The totality of the circumstances, however, includes other undisputed facts indicating that Tyler‘s verbal and written consent to the blood draw was indeed voluntary and not obtained by any “overbearing, coercive, or deceptive police conduct.” Magallanes-Aragon, 948 P.2d at 533. Without belaboring all those facts, suffice it to say that had the juvenile court found Tyler‘s consent voluntary, I would have had no difficulty affirming that ruling, and I doubt my colleagues would have either. But, as noted above, I cannot conclude under an abuse-of-discretion standard of review that the juvenile court erred and, therefore, join in the Court‘s opinion.
¶33 In addition, In re Andre M., on which the juvenile court reliеd, is materially distinguishable. Unlike this case, In re Andre M. involved issues of voluntariness under the Fifth Amendment‘s self-incrimination clause and was heavily influenced by “the absence of a parent who attempted to attend the [minor‘s] interrogation but was prevented from doing so by the police officers.” 207 Ariz. 482, 485 ¶ 12, 88 P.3d 552, 555 (2004). Here, Tyler and his father (who had been contacted by the school, came there, and waited in the lobby) never asked to see or speak with each other, and the deputy was not informed until after the blood draw that a parent was prеsent at the school. Once he learned of that, the deputy spoke with the parents, who understood the reasons for Tyler‘s arrest and had no questions.
¶34 It is also clear from its ruling that the juvenile court deemed very significant the alleged violation of the Parents’ Bill of Rights,
¶35 Finally, I understand that Fourth Amendment issues usually, and necessarily, entail “case-by-case,” “fact-intensive, totality of the circumstances analyses.” Missouri v. McNeely, — U.S. —, 133 S.Ct. 1552, 1564, 185 L.Ed.2d 696 (2013). But a core objective of our criminal-case jurisprudence should be
¶36 But faced with the not uncommon sсenario presented in this case, a reasonable officer, before drawing blood pursuant to the juvenile‘s ostensibly valid consent, surely will now wonder whether he or she must first take steps to have a parent notified and present, and inquire about the juvenile‘s maturity, general comprehension levels, and emotional status, lest the juvenile‘s consent later be deemed involuntary. Those individualized, unpredictable variables afford little guidance and certainty to law enforcement officers, school administratоrs, parents, minor drivers, or juvenile courts. Nor does such unpredictability advance the overarching purpose of the implied consent law—“to remove from the highways of this state drivers[, including juvenile motorists,] who are a menace to themselves and to others because they operate a motor vehicle while under the influence of intoxicating liquor” or drugs. Campbell v. Superior Court, 106 Ariz. 542, 546, 479 P.2d 685, 689 (1971); see also Carrillo, 224 Ariz. at 465 ¶ 13, 232 P.3d at 1247; cf. State v. Randy J., 150 N.M. 683, 265 P.3d 734, 742 (N.M.Ct.App. 2011) (holding that state‘s implied consent law applies to any person, including juveniles, who drives a vehicle in the state).
¶37 Possibly compounding the problem, our opinion today might well engender dubious involuntariness claims and related suppression hearings aimed at excluding evidence derived from chemical testing of impaired drivers whose express consent was ostensibly voluntary and valid under Arizona‘s implied consent law. Such challenges can be made by defendants who, because they submitted to testing, retain their driving privileges in the interim. Audio or video recording of a suspect‘s consent might be a solution. But in view of the various contingencies and uncertainties surrounding determinations by officers in the field (and subsequently by courts) on whether express consent of DUI arrestees (particularly juveniles) is voluntary, 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. See