Jason S. Brown, Petitioner,
The Honorable Crane McClennen, Judge of Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge, State of Arizona, Real Party in Interest.
Appeal from the North Mesa Justice Court No. JC2013-427663
Special Action from the Superior Court in Maricopa County The Honorable Crane McClennen, Judge No. LC2013-427663
Order of the Court of Appeals, Division One
Filed Dec. 30, 2014
Mark F. Willimann (argued), The Law Office of Mark F. Willimann, LLC, Tucson, Attorneys for Jason S. Brown
William G. Montgomery, Maricopa County Attorney, Amanda M. Parker (argued), Deputy County Attorney, Phoenix, Attorneys for State of Arizona
Bruce Washburn, Scottsdale City Attorney, Ken Flint, Assistant City Prosecutor, Scottsdale, Attorneys for Amicus Curiae City of Scottsdale
JUSTICE TIMMER authored the opinion of the Court, in which VICE CHIEF JUSTICE PELANDER and JUSTICES BRUTINEL and BERCH (RETIRED) joined, and CHIEF JUSTICE BALES concurred.
¶1 Although the Fourth Amendment generally prohibits warrantless searches, they are permitted if there is free and voluntary consent to search. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); State v. Butler, 232 Ariz. 84, 87 ¶ 13, 302 P.3d 609, 612 (2013). Consent cannot be given "freely and voluntarily" if the subject of a search merely acquiesces to a claim of lawful authority. Bumper v. North Carolina, 391 U.S. 543, 548-49 (1968).
¶2 Arizona's implied consent law for watercraft operators provides that "[a]ny person who operates a motorized watercraft that is underway within this state gives consent . . . to a test or tests of the person's blood, breath, urine or other bodily substance" if arrested for operating a motorized watercraft while under the influence of alcohol or drugs ("OUI"). A.R.S. § 5-395.03(A). Nevertheless, the statute requires that an arrestee "unequivocally manifest assent to the testing by words or conduct" before officers can conduct warrantless testing. Cf. Carrillo v. Houser, 224 Ariz. 463, 467 ¶ 19, 232 P.3d 1245, 1249 (2010) (interpreting the implied consent law for motorists). The issue here is whether, for Fourth Amendment purposes, an operator arrested for OUI voluntarily consented to giving samples of his blood after a deputy sheriff advised him that "Arizona law requires you to submit" to breath, blood, or other bodily substance tests chosen by law enforcement.
¶3 In a concurrently issued opinion, we hold that showing only that consent was given by a drunk-driving arrestee in response to an almost identical admonition fails to prove that an arrestee's consent was freely and voluntarily given. State v. Valenzuela, CR-15-0222-PR, slip op. at 2 ¶ 2 (Ariz. Apr. 26, 2016). We adopt the reasoning in Valenzuela and reach the same conclusion here.
¶4 In reviewing the denial of a defendant's motion to suppress, we consider only "evidence presented at the suppression hearing and view the facts in the light most favorable to sustaining the trial court's ruling." State v. Hausner, 230 Ariz. 60, 70 ¶ 23, 280 P.3d 604, 614 (2012).
¶5 In June 2013, Jason Brown was operating a boat on Apache Lake when a uniformed deputy sheriff stopped him for illegally towing a water skier after sundown. The deputy smelled alcohol and Brown admitted he had been drinking. After conducting field sobriety tests, the deputy arrested Brown for OUI ...