from the Superior Court in Pima County The Honorable Casey F.
McGinley, Judge Pro Tempore No. CR20153118-001
of the Court of Appeals, Division Two 244 Ariz. 79 (App.
Brnovich, Arizona Attorney General, Dominic E. Draye,
Solicitor General, Joseph T. Maziarz, Chief Counsel, Mariette
S. Ambri (argued), Assistant Attorney General, Criminal
Appeals Section, Tucson, Attorneys for State of Arizona
J. Brault, Legal Defender, Robb P. Holmes (argued), Assistant
Legal Defender, Pima County Legal Defender's Office,
Tucson, Attorneys for Courtney Noelle Weakland
C. Trejo, Tucson Public Defender, Kristina J. Bohn,
Supervising Public Defender, Tucson, Attorneys for Amicus
Curiae Tucson Public Defender's Office
J. Euchner (argued), Pima County Public Defender's
Office, Tucson; and Joseph P. St. Louis, Nesci & St.
Louis, P.L.L.C., Tucson, Attorneys for Amici Curiae Arizona
Attorneys for Criminal Justice and National College for DUI
JUSTICE LOPEZ authored the opinion of the Court, in which
VICE CHIEF JUSTICE BRUTINEL and JUSTICES TIMMER and GOULD
We here consider whether the good-faith exception to the
exclusionary rule applies, in a prosecution for driving under
the influence ("DUI"), to admit blood evidence
unconstitutionally obtained after State v. Butler,
232 Ariz. 84 (2013), but before State v. Valenzuela
(Valenzuela II), 239 Ariz. 299 (2016). We hold that the
good-faith exception applies because application of the
exclusionary rule in these circumstances would not
meaningfully deter police misconduct. Butler did not
"unsettle" the law, and it is unreasonable to
require police to predict a change in the law when our trial
and appellate courts failed to do so. I.
In February 2015, an Oro Valley police officer arrested
Courtney Weakland for DUI. The officer handcuffed her, put
her in the back seat of his patrol car, and read her an
"admin per se" form pursuant to A.R.S. §
28-1321. The form provided that Arizona law
"require[d]" her to complete certain tests to
determine her blood-alcohol concentration ("BAC").
She submitted to a blood draw, which revealed a BAC of .218,
nearly three times the legal limit. Weakland was indicted on
one count of aggravated DUI while impaired to the slightest
degree and one count of aggravated DUI with a BAC of .08 or
Before trial, Weakland moved to suppress all evidence
obtained through the warrantless search and seizure of her
blood sample, arguing that the "requirement"
language in the admin per se admonition coerced her consent.
The trial court summarily denied her motion. Weakland was
convicted on both counts.
¶4 On appeal, Weakland argued that,
pursuant to Valenzuela II, her blood was obtained
without a warrant and without valid consent, and that the
good-faith exception recognized in Valenzuela II did
not apply. The State implicitly conceded on appeal that
Weakland's consent to the blood draw was involuntary and,
thus, invalid pursuant to Valenzuela II, but argued
that the good-faith exception to the exclusionary rule
obviated the need to suppress the blood evidence. In a
divided opinion, the court of appeals affirmed. State v.
Weakland, 244 Ariz. 79 (App. 2017). The majority
reasoned that, because Arizona courts had not held that the
admin per se admonition was "coercive, ineffective, or
otherwise [affirmatively] negated consent" until
Valenzuela II, police acted in good faith when they
read it to Weakland after her arrest. See id. at 83
¶ 19, 85 ¶ 24. The dissent argued that although
existing precedent may have justified applying the good-faith
exception to the defendant's 2012 arrest in
Valenzuela II, this Court's 2013 Butler
decision placed police on notice before Weakland's 2015
arrest that use of the admin per se admonition was
constitutionally suspect. Id. at 85 ¶¶
27-28 (Eckerstrom, C.J., dissenting). The applicability of
the good-faith exception to the exclusionary rule for cases
involving use of the admin per se admonition after
Butler, but before Valenzuela II, is a
recurring issue of statewide importance. We have jurisdiction
pursuant to article 6, section 5(3) of the Arizona
"We review the denial of a motion to suppress evidence
for abuse of discretion, considering the facts in the light
most favorable to sustaining the ruling." Valenzuela
II, 239 Ariz. at 302 ¶ 9. We review de novo the
applicability of the good-faith exception. State v.
Havatone, 241 Ariz. 506, 509 ¶ 11 (2017).
"The exclusionary rule, which allows suppression of
evidence obtained in violation of the Fourth Amendment, is a
prudential doctrine invoked [solely] to deter future
violations." Valenzuela II, 239 Ariz. at 308-09
¶ 31 (citing Davis v. United States, 564 U.S.
229, 236-37 (2011)). "Exclusion is 'not a personal
constitutional right,' nor is it designed to 'redress
the injury' occasioned by an unconstitutional
search." Davis, 564 U.S. at 236 (quoting
Stone v. Powell, 428 U.S. 465, 486 (1976)). Because
"a deterrence purpose can only be served when the
evidence to be suppressed is derived from a search which the
[police] knew or should have known was unconstitutional under
the Fourth Amendment," United States v.
Johnson, 457 U.S. 537, 565 (1982) (White, J.,
dissenting), the rule is intended to deter only
"deliberate, reckless, or grossly negligent conduct, or
in some circumstances recurring or systemic negligence."
Herring v. United States, 555 U.S. 135, 144 (2009).
Therefore, "when the police act with an objectively
reasonable good-faith belief that their conduct is lawful, or
when their conduct involves only simple, isolated
negligence," the good-faith exception applies because
"the deterrence rationale loses much of its force, and
exclusion cannot pay its way." Davis, 564 U.S.
at 238 (internal citations and quotation marks omitted);
see also A.R.S. § 13-3925 (codifying good-faith
exception to the exclusionary rule).
"Real deterrent value is a 'necessary condition for
exclusion,' but it is not 'a sufficient'
one." Davis, 564 U.S. at 237 (quoting
Hudson v. Michigan, 547 U.S. 586, 596 (2006)).
"For exclusion to be appropriate, the deterrence
benefits of suppression must [also] outweigh its heavy
costs." Id. (noting that exclusion's
"bottom-line effect, in many cases, is to suppress the
truth and set the criminal loose in the community without
punishment"). Consequently, exclusion of evidence should
be a "last resort." Id. (quoting
Hudson, 547 U.S. at 591). The state bears the burden
of establishing that the good-faith exception applies.
Havatone, 241 Ariz. at 511 ¶ 19. III.
This case turns on whether police objectively, reasonably
relied on "binding appellate precedent" in using
the admin per se admonition at the time of Weakland's
arrest after Butler but before Valenzuela II.
See Havatone, 241 Ariz. at 512 ¶ 24. Stated
differently, we must determine whether the law regarding the
admonition was "unsettled" at the time of
Weakland's arrest, meaning law enforcement officers could
not rely on precedent to authorize the illegal search.
Id. at 512-13 ¶ 29 (citing Davis, 564
U.S. at 250 (Sotomayor, J., concurring in the judgment)).
When making this assessment, we do not require police to have
a "crystal ball" in determining what courts may
conclude in future cases but rather require them to act in
objectively reasonable reliance on then-existing authority.
State v. Jean, 243 Ariz. 331, 343 ¶ 45 (2018);
see United States v. Leon, 468 U.S. 897, 919 n.20
(1984) (stating that the good-faith exception requires that
police have "a reasonable knowledge of what the law
Mindful of tension between Havatone and
Jean, we clarify the standard for the good-faith
exception. We noted in Havatone that
"Davis instructs that law enforcement acts in
good faith if 'binding appellate precedent specifically
authorizes a particular police practice.'"
241 Ariz. at 512 ¶ 24 (quoting Davis, 564 U.S.
at 241). Although an accurate statement, Davis did
not limit the good-faith exception only to circumstances when
appellate precedent specifically authorizes a police
practice. In fact, in Jean, we rejected the
proposition that "to qualify as 'binding appellate
precedent under Davis,' a case 'must
specifically authorize the precise conduct under
consideration.'" 243 Ariz. at 343 ¶ 45 (quoting
United States v. Katzin, 769 F.3d 163, 173-76 (3d
Cir. 2014)). Instead, we concluded that the good-faith
exception applies if the search was "conducted in
objectively reasonable reliance on . . . binding appellate
precedent . . . ." Jean, 243 Ariz. at 343
¶ 47; see also Valenzuela II, 239 Ariz. at 309
¶ 31 ("[W]hen law enforcement officers 'act
with an objectively reasonable good-faith belief that their
conduct is lawful,' deterrence is unnecessary and the
exclusionary rule does not apply." (quoting
Davis, 564 U.S. at 238)). We find
Jean's approach more consistent with
Davis's reasoning and the purpose of the
exclusionary rule and the good-faith exception to it. See
Davis, 564 U.S. at 240-41, 249 (reasoning that the
exclusionary rule does not apply where police reasonably rely
on binding appellate precedent because "[p]olice
practices trigger the harsh sanction of exclusion only when
they are deliberate enough to yield 'meaningfu[l]'
deterrence, and culpable enough to be 'worth the price
paid by the justice system'" (alteration in
original) (citations omitted)). We see no reason to limit the
good-faith exception to police practices that appellate
precedent specifically authorizes when the rationale for the
exception applies with equal force where binding appellate
precedent otherwise supports the practice. To the extent that
Havatone and Jean conflict, and despite
Justice Bolick's reliance on the "specific
authorization" standard, infra ¶¶ 41,
48, we reaffirm Jean's reasonableness approach.
Weakland contends that the good-faith exception does not
apply in her case because Butler
"unsettled" the law. We are unpersuaded. Although
in Havatone we embraced the somewhat opaque concept
(at least in its application) that the good-faith exception
should not apply when the law is "unsettled" as to
the constitutionality of a police practice, 241 Ariz. at
512-13 ¶ 29, merely branding the state of the law
between Butler and Valenzuela II as
"unsettled" does not repudiate Arizona's
appellate courts' repeated authorization of the admin per
The gravamen of Weakland's argument is that the
good-faith exception should not apply to her case because,
after Butler, the police should have known that
administering the admin per se admonition, pursuant to §
28-1321, would be insufficient as an exception to the Fourth
Amendment's warrant requirement or would be insufficient,
by itself, to establish voluntary consent to the test. In
other words, if Butler did not expressly invalidate
use of the admonition, it at least "unsettled" the
law. Either way, Weakland contends, Butler put
police on notice that use of the form was constitutionally
dubious. We disagree.
The issue in Butler was "whether the Fourth
Amendment . . . requires that a juvenile arrestee's
consent be voluntary to allow a warrantless blood draw."
232 Ariz. at 86 ¶ 1. Applying Missouri v.
McNeely, 569 U.S. 141 (2013), this Court held that the
Fourth Amendment requires that, "independent of §
28-1321," an arrestee's consent to a warrantless
blood draw be voluntary under the totality of the
circumstances. Id. at 88 ¶ 18. Although this
Court assessed the circumstances under which the juvenile
defendant assented to the warrantless blood draw after
hearing the admonition, including his age, the duration of
his detention, the absence of his parents, and his disquieted
demeanor, the sufficiency of consent given in response to the
admin per se admonition alone was not otherwise before the
Court. Id. at 88-89 ¶¶ 20-21. Indeed, if
it were, the Court could have found the lack of voluntary
consent based solely on use of the admonition without
discussing other factors. Id. at 91 ¶ 32
(Pelander, J., concurring) (noting facts also showed that the
juvenile's consent in response to the admonition was
voluntary and concluding that "had the juvenile court
found [the juvenile's] consent voluntary, I would have
had no difficulty affirming that ruling, and I doubt my
colleagues would have either"). If anything,
Butler emphasizes that the totality of the
circumstances must be considered in determining compliance
with the Fourth Amendment and illustrates that factors such
as a juvenile arrestee's age and circumstances can
override what otherwise may have been voluntary consent to a
blood test following the admonition. See Butler, 232
Ariz. at 88 ¶ 18. But it did not implicitly suggest that
consent given in response to the admin per se admonition is
involuntary, absent other circumstances, as we later held in
Valenzuela II. 239 Ariz. at 301 ¶ 2.
In sum, Butler did not address whether use of the
admonition was inherently coercive, did not clearly address
its effect, and did not expressly question its validity. In
fact, Butler failed to meaningfully acknowledge the
two binding appellate cases authorizing use of the language
on the admin per se admonition- Campbell v. Superior
Court,106 Ariz. 542 (1971), and State v.
Brito,183 Ariz. 535 (App. 1995). Consequently,
Butler did not "unsettle" ...