Opinion
No. 2 CA-CR 2013-0241
07-10-2014
THE STATE OF ARIZONA, Appellee, v. ABEL RUBEN PENA, Appellant.
Thomas C. Horne, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By Andrew Reilly, Assistant Attorney General, Phoenix Counsel for Appellee Isabel G. Garcia, Pima County Legal Defender By Scott A. Martin, Assistant Legal Defender, Tucson Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND
MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24.
Appeal from the Superior Court in Pima County
No. CR20121618001
The Honorable Richard S. Fields, Judge
The Honorable Richard D. Nichols, Judge
AFFIRMED
COUNSEL
Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Andrew Reilly, Assistant Attorney General, Phoenix
Counsel for Appellee
Isabel G. Garcia, Pima County Legal Defender
By Scott A. Martin, Assistant Legal Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Chief Judge Eckerstrom authored the decision of the Court, in which Judge Kelly and Judge Espinosa concurred. ECKERSTROM, Chief Judge:
¶1 After a jury trial, appellant Abel Pena was acquitted of three felony charges stemming from a traffic accident and one misdemeanor charge of driving under the influence of an intoxicant (DUI); he was convicted of driving with a blood alcohol concentration of at least .08, in violation of A.R.S. § 28-1381(A)(2). The trial court suspended the imposition of sentence and placed Pena on a three-year term of probation. On appeal, he contends the court erred by denying his motion to suppress the results of a breath test because his recantation of his refusal to consent to the test was involuntary. We affirm for the reasons that follow.
Factual and Procedural Background
¶2 Because the trial court's suppression ruling is the sole issue raised on appeal, we consider only the evidence presented at the suppression hearing, which we view in the light most favorable to sustaining the court's ruling. See State v. Moran, 232 Ariz. 528, ¶ 2, 307 P.3d 95, 98 (App. 2013). On March 2, 2012, Pena was making a left turn at an intersection when his vehicle was struck by an oncoming car. The traffic light had been green, and Pena had failed to yield the right of way. The collision severely damaged both vehicles, and Pena's passenger suffered an injury that required her to be transported to a hospital.
¶3 A dashboard-mounted police camera captured Pena's subsequent interactions with police officers, and the audiovisual recording from that night was admitted at the evidentiary hearing. Two police officers participated in the formal DUI investigation of Pena at the accident scene. At the beginning of their investigation, when Pena told the officers he was cold, they immediately gave him a police department jacket to wear. Pena was cooperative at all times and informed the officers he previously had been arrested for DUI. He also repeatedly admitted he had been drinking alcohol earlier in the evening, and he participated in several field sobriety tests, which indicated signs of impairment. An officer then provided the Miranda advisory, and Pena agreed to answer further questions.
Miranda v. Arizona, 384 U.S. 436 (1966).
¶4 Pena was seated on the hood of the police vehicle when one of the officers informed him he was being placed under arrest for suspected DUI. The same officer immediately told Pena that he did not yet need to be placed in handcuffs. Pursuant to A.R.S. § 281321, the officer read an "Admin Per Se Implied Consent Affidavit" that informed Pena his driver's license would be suspended for at least one year if he refused to submit to a chemical test to determine his blood alcohol concentration. Pena stated at least twice that he refused to take the test. The officers proceeded to formally advise him of his license suspension and fill out paperwork as Pena sat on the vehicle. When the officers then placed Pena in handcuffs and informed him they would transport him to a police station while they sought a telephonic search warrant to draw his blood, he changed his mind and consented to a breath test. The trial court determined Pena's consent was voluntary and consequently denied the motion to suppress.
Discussion
¶5 As he did below, Pena argues that the results of the warrantless breath test should have been suppressed under both the Fourth Amendment to the United States Constitution and article II, § 8 of the Arizona Constitution. Because he does not present a separate argument under our state constitution, we analyze the issue only under the federal constitution. See State v. Dean, 206 Ariz. 158, n.1, 76 P.3d 429, 432 n.1 (2003).
¶6 A breath test is a search under the Fourth Amendment, Petersen v. City of Mesa, 207 Ariz. 35, ¶ 9, 83 P.3d 35, 38 (2004), and subject to the Fourth Amendment's constraints. State v. Butler, 232 Ariz. 84, ¶ 10, 302 P.3d 609, 612 (2013). A warrantless breath test conducted by police officers is permitted on the basis of a defendant's consent only if that consent is voluntarily given. See id. ¶ 13. "Consent must 'not be coerced, by explicit or implicit means, by implied threat or covert force.'" State v. Guillen, 223 Ariz. 314, ¶ 11, 223 P.3d 658, 661 (2010), quoting Schneckloth v. Bustamonte, 412 U.S. 218, 228 (1973). ¶7 The voluntariness of consent is a factual question to be determined based on the totality of the circumstances. Butler, 232 Ariz. 84, ¶¶ 13, 19, 302 P.3d at 612, 613. Factors relevant to determining the voluntariness of consent to a search include whether the police displayed guns, State v. Watson, 114 Ariz. 1, 7, 559 P.2d 121, 127 (1976), modified on other grounds by State v. Spreitz, 202 Ariz. 1, ¶¶ 7, 11, 39 P.3d 525, 526, 527 (2002), provided Miranda warnings, State v. Atwood, 171 Ariz. 576, 617, 832 P.2d 593, 643 (1992), overruled in part on other grounds by State v. Nordstrom, 200 Ariz. 229, ¶ 25, 25 P.3d 717, 729 (2001), and placed the defendant in custody, Brown v. Superior Court, 119 Ariz. 205, 207-08, 580 P.2d 343, 345-46 (1978), as well as the defendant's sophistication, Atwood, 171 Ariz. at 617, 832 P.2d at 643, and level of assistance given to the law enforcement officers. State v. Knaubert, 27 Ariz. App. 53, 57, 550 P.2d 1095, 1099 (1976). "There is no single factor determinative on the issue," Watson, 114 Ariz. at 7, 559 P.2d at 127, at least when the alleged law enforcement officers' coercion falls short of overt acts or threats of force. See State v. McMahon, 116 Ariz. 129, 132, 568 P.2d 1027, 1030 (1977). Hence, consent is not necessarily involuntary due to a threat to obtain a search warrant, Atwood, 171 Ariz. at 617, 832 P.2d at 634, or a person's lack of awareness of the right to refuse consent. State v. Smith, 123 Ariz. 231, 241, 599 P.2d 187, 197 (1979). And we will not disturb a trial court's voluntariness finding unless the court has abused its discretion. Butler, 232 Ariz. 84, ¶ 19, 302 P.3d at 613. ¶8 The record shows Pena previously had been arrested for DUI, indicating he had some familiarity with the DUI investigative process. He also testified he had been handcuffed and transported in a police car prior to this incident. Pena was cooperative with the officers in this case and assisted them in their DUI investigation. The officers never drew their weapons or threatened Pena, but rather spoke calmly and acted professionally throughout the encounter. Pena received a Miranda advisory as well as an instruction under our implied consent statute that informed him of the consequences of refusing to submit to a chemical test. And when he refused testing, the officers' reactions indicated they would respect his choice and would not proceed without a search warrant. Under the totality of the circumstances, therefore, we cannot conclude the trial court abused its discretion in finding Pena voluntarily elected to take the breath test. The record does not show "'his will [was] overborne and his capacity for self-determination critically impaired.'" Schneckloth, 412 U.S. at 225-26, quoting Culombe v. Connecticut, 367 U.S. 568, 602 (1961).
¶9 Pena counters that his consent was involuntary "because it was gained by handcuffing him and preparing to transport him in anticipation of a search warrant that did not yet exist." Being placed in handcuffs, however, does not itself render consent involuntary. Brown, 119 Ariz. at 207-08, 580 P.2d at 345-46. Furthermore, as the state points out in its answering brief, Pena was lawfully arrested based on probable cause that his accident was the result of a DUI under § 28-1381(A)(1), even without the breath test being performed. See A.R.S. §§ 28-1381(C), 13-3883(A)(3); State v. Valenzuela, 182 Ariz. 632, 634, 898 P.2d 1010, 1012 (App. 1995). In other words, he was subject to a full custodial arrest at the scene of the accident for his suspected DUI. See State v. Hanna, 173 Ariz. 30, 31, 32, 839 P.2d 450, 451, 452 (App. 1992) (upholding arrest and resulting search based on misdemeanor driving offense). Although Pena asserts the police "had no legal basis for cuffing [him] and preparing to forcibly remove him from the scene" without a search warrant, this contention is both incorrect and legally unsupported. "[A] search warrant protects a person's privacy interests," State v. Hyde, 186 Ariz. 252, 268, 921 P.2d 655, 671 (1996), and those interests receive the same protection regardless of where an arrestee is located when police apply for a search warrant. Despite Pena's assumption, the issues of handcuffing and transportation simply did not depend on the existence of a search warrant.
¶10 Pena also argues his consent was involuntary "because it was based in part on Officer Honomichl's lie that [Pena] might be able to remain on the scene if he agreed to the breath test." Assuming arguendo that the record establishes such a falsehood and that it could be legally relevant to a voluntariness determination, the police video here demonstrates that the officer's comment was not made until after Pena had consented to the breath test and confirmed his recantation. Accordingly, Pena's consent was neither given in reliance on the alleged lie nor induced by it. Only after the officers had removed the handcuffs and started revising their paperwork based on Pena's consent to the test did he inquire whether he still would be taken to jail that night. The officer's response — "That hasn't been determined yet" — did not necessarily render Pena's consent involuntary. See Watson, 114 Ariz. at 7, 559 P.2d at 127. Thus, even when we consider the cumulative effect of the factors suggesting possible coercion by police, see Atwood, 171 Ariz. at 617, 832 P.2d at 634, we cannot conclude the trial court abused its discretion in finding, as a factual matter, that Pena voluntarily consented to the test. See Butler, 232 Ariz. 84, ¶ 19, 302 P.3d at 613.
Disposition
¶11 For the foregoing reasons, we affirm Pena's conviction and the court's imposition of a term of probation.