State of Arizona v. Nelson Ivan Boteo-Flores , 230 Ariz. 105 ( 2012 )

SUPREME COURT OF ARIZONA
En Banc
THE STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-11-0180-PR
Appellee, )
) Court of Appeals
v. ) Division Two
) No. 2 CA-CR 10-0106
NELSON IVAN BOTEO-FLORES, )
) Pima County
Appellant. ) Superior Court
) No. CR20092575002
)
)
) O P I N I O N
__________________________________)
Appeal from the Superior Court in Pima County
The Honorable Terry L. Chandler, Judge
________________________________________________________________
Memorandum Decision of the Court of Appeals Division Two
Filed Apr. 12, 2011
VACATED AND REMANDED
________________________________________________________________
THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation
Amy Thorson, Assistant Attorney General Tucson
Attorneys for State of Arizona
ROBERT J. HIRSH, PIMA COUNTY PUBLIC DEFENDER Tucson
By Lisa M. Hise, Deputy Public Defender
Attorney for Nelson Ivan Boteo-Flores
________________________________________________________________
B R U T I N E L, Justice
¶1 Nelson Boteo-Flores was detained by police during a
stolen vehicle investigation. We consider here whether a lawful
investigative stop had become a de facto arrest before Boteo-
Flores confessed to the crime. Based on the totality of the
circumstances, we find a de facto arrest.
I. FACTS AND PROCEDURAL HISTORY
¶2 Tucson police officers went to an apartment complex
and saw a black pickup truck matching the description of a
stolen vehicle.1 The officers took up surveillance positions to
watch the truck and the apartment complex driveway.
¶3 A maroon car pulled into the driveway of the complex.
Its lone occupant was the driver, who was talking on a cell
phone and then used binoculars to look up and down the street a
few times before driving away. A few minutes later the car
returned, this time with three occupants, who the officer could
not identify. The car drove to the back of the complex and out
of sight.
¶4 Several minutes later, Boteo-Flores walked down the
driveway, stood at the edge of the street, and looked up and
down the street several times. The person who had driven the
car then drove the black pickup truck from the complex. As he
approached the street, the driver slowed and shouted to Boteo-
Flores, who did not respond. All but one of the surveilling
officers unsuccessfully pursued the truck; it was later found
1
We consider only the evidence presented at the suppression
hearing. State v. Blackmore, 186 Ariz. 630, 631, 925 P.2d 1347,
1348 (1996).
2
unoccupied.
¶5 While the pursuit was underway, the remaining officer
approached Boteo-Flores. Because there was at least one other
person unaccounted for from the maroon car and the officer did
not know if Boteo-Flores was armed, the officer handcuffed him.
He did not frisk Boteo-Flores or ask him if he had a weapon.
¶6 After handcuffing Boteo-Flores, the officer advised
him of his Miranda rights and began questioning him. Shortly
thereafter, a police unit returned and the officers called an
auto theft detective to assist with the investigation. Boteo-
Flores was left handcuffed and standing by a police car for at
least fifteen minutes, until the detective arrived. The record
does not reveal what the other officers were doing during this
time or why Boteo-Flores remained handcuffed.
¶7 After arriving, the detective was briefed by the
officers at the scene for another fifteen minutes. He then
advised Boteo-Flores of his Miranda rights and began
interviewing him. The detective arrested Boteo-Flores based on
his admissions during the interview.
¶8 Boteo-Flores was indicted for facilitating the theft
of a means of transportation, a class six felony. He moved to
suppress his statements, arguing that his initial detention was
not supported by reasonable suspicion and, alternatively, that
the initial detention had become a de facto arrest unsupported
3
by probable cause before he was interrogated. The State
countered that reasonable suspicion supported the stop and that,
although there was no probable cause to arrest until he made
incriminating statements, the detention never became a de facto
arrest. After an evidentiary hearing, the trial court denied
the motion. A jury found Boteo-Flores guilty, and the trial
court sentenced him to prison for the presumptive term of 1.75
years.
¶9 The court of appeals affirmed the conviction and
sentence. State v. Boteo-Flores, 2 CA-CR 10-0106, 2011 WL
1379805 (Ariz. App. Apr. 12, 2011) (mem. decision). The court
determined that the record supported “the [trial] court’s
finding that the officer had a reasonable, articulable suspicion
that Boteo-Flores was involved in criminal activity.” Id. at *2
¶ 8. Although the court deemed it a “close question” whether a
de facto arrest had thereafter occurred, it concluded that the
trial “court did not abuse its discretion in determining Boteo-
Flores was not under arrest” because “[t]he officer acted
reasonably to protect his own safety and to prevent Boteo-Flores
from fleeing, and he diligently pursued the purpose of the
stop.” Id. at *3 ¶ 12.
¶10 We granted review to consider relevant factors in
determining when a lawful detention becomes a de facto arrest,
an issue of statewide importance. We have jurisdiction pursuant
4
to Article 6, Section 5(3) of the Arizona Constitution and
A.R.S. § 12–120.24 (2003).
II. DISCUSSION
¶11 Police officers may briefly detain an individual who
they have reasonable suspicion to believe is involved in a
crime. Terry v. Ohio, 392 U.S. 1, 27 (1968). In assessing the
reasonableness of a Terry stop, we examine “(1) whether the
facts warranted the intrusion on the individual’s Fourth
Amendment rights, and (2) whether the scope of the intrusion was
reasonably related to the circumstances which justified the
interference in the first place.” State v. Jarzab, 123 Ariz.
308, 310, 599 P.2d 761, 763 (1979) (internal citation omitted);
see Terry, 392 U.S. at 20. A valid Terry stop, however, can
later become a de facto arrest. See State v. Blackmore, 186
Ariz. 630, 633-34, 925 P.2d 1347, 1350-51 (1996). “Whether an
illegal arrest occurred is a mixed question of fact and law”
that we review de novo. Id. at 632, 925 P.2d at 1349.
¶12 Boteo-Flores first argues that the officer lacked
reasonable suspicion to detain him. Reasonable suspicion
requires “a particularized and objective basis for suspecting
that a person is engaged in criminal activity.” State v.
O’Meara, 198 Ariz. 294, 295 ¶ 7, 9 P.3d 325, 326 (2000).
Officers cannot act on a mere hunch, State v. Richcreek, 187
Ariz. 501, 505, 930 P.2d 1304, 1308 (1997), but seemingly
5
innocent behavior can form the basis for reasonable suspicion if
an officer, based on training and experience, can “perceive and
articulate meaning in given conduct[,] which would be wholly
innocent to the untrained observer.” Brown v. Texas, 443 U.S.
47, 52 n.2 (1979). The totality of the circumstances, not each
factor in isolation, determines whether reasonable suspicion
exists. See United States v. Arvizu, 534 U.S. 266, 274-75
(2002) (noting that Terry forbids a “divide-and-conquer
analysis”); O’Meara, 198 Ariz. at 296 ¶ 10, 9 P.3d at 327.
¶13 We agree with the courts below that the officer had
reasonable suspicion to stop Boteo-Flores. The officer had
reliable information that the truck was stolen. He saw
suspicious behavior by the car’s driver, who later drove off in
the stolen truck. The officer’s suspicions were further
justifiably aroused by the timing of Boteo-Flores’s arrival, his
actions, and the truck driver’s shouting to him. The officer
testified that based on his training and experience, he
suspected Boteo-Flores was acting as a lookout. Because this
suspicion was reasonable given the totality of the
circumstances, Boteo-Flores’s initial detention was legal. See,
e.g., Terry, 392 U.S. at 5-6, 28.
¶14 What happened subsequently, however, presents a
different question. Although “[t]here is no bright line that
distinguishes a valid Terry stop” from a de facto arrest, “Terry
6
stops must be tailored to fit the exigencies of particular
situations.” United States v. Pontoo, 666 F.3d 20, 30 (1st Cir.
2011). “[W]hether the scope of an investigatory stop is
reasonable demands careful consideration of the totality of the
circumstances.”2 Id. “[A]n investigative detention must be
temporary and last no longer than is necessary to effectuate the
purpose of the stop.” Florida v. Royer, 460 U.S. 491, 500
(1983) (plurality opinion).
¶15 United States v. Sharpe, 470 U.S. 675 (1985),
clarified that there is no rigid time limit for a Terry stop and
the appropriate query is “whether the police diligently pursued
a means of investigation that was likely to confirm or dispel
their suspicions quickly, during which time it was necessary to
detain the defendant.” Id. at 686. The Court cautioned that in
assessing the reasonableness of a detention, courts should
“consider whether the police are acting in a swiftly developing
situation, and in such cases the court should not indulge in
unrealistic second-guessing.” Id. It noted that “[t]he
question is not simply whether some other alternative was
2
Although we have suggested in the past that the test is
“whether a reasonable person, innocent of any crime, would
reasonably believe that he was being arrested,” State v.
Winegar, 147 Ariz. 440, 448, 711 P.2d 579, 587 (1985), the
Supreme Court has indicated that the appropriate focus is on the
totality of the circumstances and reasonableness of the
officer’s actions. See United States v. Sharpe, 470 U.S. 675,
685 (1985). Whether a reasonable person would believe he or she
was being arrested is but one factor to consider.
7
available, but whether the police acted unreasonably in failing
to recognize or to pursue it.” Id. at 687; cf. State v.
Spreitz, 190 Ariz. 129, 143-44, 945 P.2d 1260, 1274-75 (1997)
(finding forty-five minute detention of blood-smeared defendant,
who voluntarily cooperated with police and was not restrained,
“no more than that necessary to accomplish a reasonable
investigation of the unusual circumstances the officers
encountered”).
¶16 Here, the State, whose burden it is to demonstrate
that the continued detention was reasonable, presented no
evidence to meet that burden. See Royer, 460 U.S. at 500 (“It
is the State’s burden to demonstrate that the seizure it seeks
to justify on the basis of reasonable suspicion was sufficiently
limited in scope and duration to satisfy the conditions of an
investigative seizure.”). Although Boteo-Flores was properly
detained and questioned initially, he remained handcuffed for
another thirty to forty minutes after the other officers
returned. The State does not suggest that probable cause
supported that continued detention, and nothing in the record
explains why it was reasonable to detain him in handcuffs to
await interrogation by the detective.
¶17 Nor has the State explained why it was necessary to
wait for a detective to question Boteo-Flores. Although an
extended detention might be reasonable under Terry while
8
officers await specialized equipment such as a drug sniffing
dog, see, e.g., State v. Teagle, 217 Ariz. 17, 26-27 ¶¶ 33-37,
170 P.3d 266, 275-76 (App. 2007) (concluding one hour and forty
minute detention to wait for drug sniffing dog reasonable), such
concerns do not justify the continued detention here. Nothing
in the record shows any reason for detaining Boteo-Flores to
await the detective’s arrival.
¶18 To be sure, it may be reasonable for an officer
initiating a Terry stop to wait for another officer. But the
record must reflect the reason. The officers at the scene had
the information about the stolen vehicle and actually observed
Boteo-Flores’s suspicious actions. Nothing in the record
suggests why the detective was necessary to question Boteo-
Flores for purposes of completing the investigative stop.
¶19 The trial court and court of appeals relied on State
v. Blackmore, 186 Ariz. 630, 925 P.2d 1347 (1996), in
determining that the officer acted reasonably in handcuffing and
detaining Boteo-Flores throughout the investigation. But that
case focused on the initial use of handcuffs after an officer
detained a suspect and not their continued use once the
officer’s safety concerns were allayed. Id. at 631, 925 P.2d at
1348. Significantly, the restraint and detention in Blackmore
lasted “for only a few minutes,” 186 Ariz. at 633, 925 P.2d at
1350, but Boteo-Flores was detained in handcuffs for
9
considerably longer, with no articulated concerns for preserving
officer safety or preventing him from fleeing.
¶20 Blackmore does not control our analysis in this case.
The detaining officer was justified in initially handcuffing
Boteo-Flores because the officer was alone and did not know
whether Boteo-Flores was armed. That threat clearly ended when
the other officers returned. Boteo-Flores was compliant and
nothing indicates he had a weapon; he was not even frisked.
Although the use of handcuffs does not automatically transform a
Terry stop into an arrest, see Blackmore, 186 Ariz. at 633-34,
925 P.2d at 1350-51, their continued use when no ongoing threat
exists suggests the detainee is under arrest. See United States
v. Bautista, 684 F.2d 1286, 1289-90 (9th Cir. 1982); cf. State
v. Buti, 964 P.2d 660, 664 (Idaho 1998) (finding the use of
handcuffs and removal of suspects at gunpoint transformed stop
into an arrest when several officers were present, there was no
indication that the suspects were armed, and suspects were
compliant). The State argues that the continued use of
handcuffs was justified because at least one passenger from the
car had not been located. But any threat based on the unknown
whereabouts of another possible suspect, without more, was
purely speculative.
¶21 The lack of evidence that officers acted diligently in
investigating Boteo-Flores’s connection to the stolen pickup
10
truck and the continued use of handcuffs when there was no
ongoing safety threat or flight risk transformed the valid Terry
stop into a de facto arrest before Boteo-Flores was questioned
by the auto theft detective. The State conceded that police
officers did not have probable cause to arrest Boteo-Flores
until he confessed to the detective.
¶22 Even when a confession results from an illegal arrest,
however, it need not be suppressed if it “was ‘sufficiently an
act of free will to purge the primary taint of the unlawful
invasion.’” State v. Reffitt, 145 Ariz. 452, 457, 702 P.2d 681,
686 (1985) (quoting Wong Sun v. United States, 371 U.S. 471, 488
(1963)); see also Brown v. Illinois, 422 U.S. 590, 602 (1975).
The State argues that the confession here was sufficiently
attenuated from the illegal arrest; Boteo-Flores argues that the
State waived this issue by not raising it below. These
arguments were not considered in the decision below and should
be addressed by the court of appeals in the first instance.
III. CONCLUSION
¶23 For the foregoing reasons, we vacate the decision of
the court of appeals and remand the case to that court for
further proceedings consistent with this opinion.
_____________________________________
Robert M. Brutinel, Justice
11
CONCURRING:
_____________________________________
Rebecca White Berch, Chief Justice
_____________________________________
W. Scott Bales, Vice Chief Justice
_____________________________________
A. John Pelander, Justice
_____________________________________
*
*
Before his resignation on June 27, 2012, as a result of his
appointment to the United States Court of Appeals for the Ninth
Circuit, Justice Andrew D. Hurwitz participated in this case,
including oral argument, and concurred in this opinion’s
reasoning and result.
12