Thе STATE of Arizona, Appellee, v. Javier Francisco NAVARRO, Appellant.
No. 2 CA-CR 2016-0020
Court of Appeals of Arizona, Division 2.
Filed October 7, 2016
382 P.3d 1234
used the statutory short form of acknowledgment (which included the phrase “acknowledged beforе me“) for Chauncey acting as an individual in his own right and as an attorney in fact for Gloria, it also met the URAA‘s certification requirements.
¶15 Of significance, the URAA does not require a seal when, as here, an Arizona notary properly takes and certifies an acknowledgment within Arizona. In contrast, the only reference to a notary‘s use of an official seal under the URAA concerns notarial acts performed by a person authorized to perform such acts under the laws of a foreign country.
¶16 Accordingly, because Chauncey duly acknowledged the deed under the URAA, it was not invalid. Therefore, the court should not have grаnted partial summary judgment in Gloria‘s favor on her quiet title claim. As Gloria also challenged the validity of the deed on other grounds that the superior court did not address, sеe supra ¶ 4, we do not decide, and express no opinion on, whether the deed is valid. We also express no opinion on James‘s tenancy in common argument as that argument may become moot depending on the superior court‘s resolution of Gloria‘s other challenges to the validity of the deed.
CONCLUSION
¶17 We reverse the superior court‘s grant of partial summary judgment on Gloria‘s quiet title claim and remand to the superior court for further proceedings consistent with this opinion. As the successful party on appeal, we award James his taxable costs on appeal, contingent upon his compliance with Arizona Rule of Civil Appellatе Procedure (“ARCAP“) 21. James also requested an award of reasonable attorneys’ fees on appeal, but failed to cite any authority for a fee awаrd. Exercising our discretion pursuant to ARCAP 21(a)(2), we deny his request for attorneys’ fees on appeal.
Mark Brnovich, Arizona Attorney General, Joseph T. Maziarz, Section Chiеf Counsel, Phoenix, By Kathryn A. Damstra, Assistant Attorney General, Tucson, Counsel for Appellee
Dean Brault, Pima County Legal Defender, By Scott A. Martin and Alex Heveri, Assistant Legal Defenders, Tucson, Counsel for Appellant
Chief Judge Eckerstrom authored the opinion of the Court, in which Presiding Judge Vásquez and Judge Howard concurred.
ECKERSTROM, Chief Judge:
¶1 Following a jury trial, appellant Javier Navarro was convicted of four counts of aggravated driving under the influence of an intoxicant (DUI). The trial court sentenced him to concurrent terms of four months’ incarceration, pursuant to
Factual and Procedural Background
¶2 We discuss only those facts relevant to the suppression ruling challenged on appeal. See State v. Smith, 228 Ariz. 126, ¶ 2, 263 P.3d 675, 676 (App. 2011).1 Navarro was arrested for DUI on February 15, 2015. At that time, a police officer read Navarro the same “admin per se” form that our supreme court later held to be invalid in Valenzuela, 239 Ariz. 299, ¶¶ 15, 22, 28, 371 P.3d at 629-30, 634, 636. Upon hearing the erroneous admonition that he was required by law to submit to blood or breath testing, Navarro agreed to submit to a breath test. The results rеvealed that his blood alcohol concentration was above 0.15. The trial court summarily denied Navarro‘s motion to suppress this evidence and, in January 2016, entеred the judgment and sentence. This appeal followed.
Discussion
¶3 In his opening brief, Navarro argued the warrantless breath test violated the Fourth Amendment because it was thе product of coercion and “involuntary ‘consent.‘” The state responded that the search was proper under the Supreme Court‘s recent decision in Birchfield v. North Dakota, ___ U.S. ___, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016), which we address below. In his reply brief, Navarro countered that article II, § 8
¶4 Under the Fourth Amendment to the United Stаtes Constitution, suppression was not required here because, as Birchfield held, a warrantless breath test is allowed as a search incident to a lawful DUI arrest. ___ U.S. ___, 136 S.Ct. at 2184. With respect to the analogous article II, § 8 of the Arizona Constitution,2 our own supreme court has long recognized that a search incident to a lawful arrest does not require any warrant, Argetakis v. State, 24 Ariz. 599, 606, 608-09, 212 P. 372, 374-75 (1923), and that non-invasive breath tests for DUI arrestees fall within this exception. State v. Berg, 76 Ariz. 96, 103, 259 P.2d 261, 266 (1953), overruled on other grounds by State v. Pina, 94 Ariz. 243, 245, 383 P.2d 167, 168 (1963). Our highest court concluded in Berg—much like the Supreme Court did in Birchfield, ___ U.S. ___, 136 S.Ct. at 2184—that requiring a DUI arrestee to exhale into a testing device is a “slight inconvenienсe” that represents a “burden which such defendant must bear for the common interest.” Berg, 76 Ariz. at 103, 259 P.2d at 266; accord Campbell v. Superior Court, 106 Ariz. 542, 547, 479 P.2d 685, 690 (1971).
¶5 These precedents foreclose the argument that article II, § 8 of the Arizona Constitution provides greater privacy protection than the federal constitution with regard to DUI breath testing. As an intermediate appellate court, we сannot disaffirm a decision of the Arizona Supreme Court on a matter under our state constitution, even if we believe the decision should be revisited. See Sell v. Gama, 231 Ariz. 323, ¶ 31, 295 P.3d 421, 428 (2013); State v. Albe, 148 Ariz. 87, 89, 713 P.2d 288, 290 (App. 1984).
¶6 “The exclusionary rule is, in essence, judge-made law designed to vindicate the constitutional right to privacy as embodied in the Fourth [A]mendment[] to the Constitution of the United States and in article 2 section[] 8 of the Arizona Constitution.” State v. Coats, 165 Ariz. 154, 157, 797 P.2d 693, 696 (App. 1990). Under the rule, “[t]he court must exclude from a criminal trial any evidence obtained in violation of the Fourth Amendment and articlе 2, section 8, unless the good-faith exception to the exclusionary rule applies.” State v. Peoples, 240 Ariz. 245, 378 P.3d 421, 424 (2016). This rule exists, in short, to deter unconstitutional police conduct. See Davis v. United States, 564 U.S. 229, 231-32, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011); State v. Bolt, 142 Ariz. 260, 267, 689 P.2d 519, 526 (1984). Because the warrantless breath test to which Navarro submitted did not violate any provision of the United States or Arizona Constitutions, according to our highest respectivе courts, the exclusionary rule is inapplicable to this case.3
¶7 Questions concerning the validity of Navarro‘s consent and the applicability of the good-faith exception are consequently irrelevant to the constitutional issue raised on appeal. Valenzuela is distinguishable insofar as that case involved not a breath test but a warrantless blood test, the results of which were inadmissible absent either voluntary consent or the good-faith exception. See 239 Ariz. 299, ¶ 2, 371 P.3d at 629.
Disposition
¶8 For the foregoing reasons, thе convictions and sentences are affirmed.