State of Arizona v. Tito Rene Scott ( 2023 )

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO
THE STATE OF ARIZONA,
Appellee,
v.
TITO RENE SCOTT,
Appellant.
No. 2 CA-CR 2021-0056
Filed June 1, 2023
Appeal from the Superior Court in Pima County
No. CR20195972001
The Honorable James E. Marner, Judge
VACATED AND REMANDED
COUNSEL
Kristin K. Mayes, Arizona Attorney General
Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals
By Tanja K. Kelly, Assistant Attorney General, Tucson
Counsel for Appellee
Megan K. Page, Pima County Public Defender
By Michael J. Miller and David J. Euchner, Assistant Public Defenders, Tucson
Counsel for Appellant
STATE v. SCOTT
Opinion of the Court
OPINION
Presiding Judge Eckerstrom authored the opinion of the Court, in which
Chief Judge Vásquez concurred and Judge Cattani dissented.
E C K E R S T R O M, Presiding Judge:
¶1 Tito Scott appeals from his convictions and sentences for
second-degree murder, aggravated assault with a deadly weapon, and
discharging a firearm at a nonresidential structure. He argues the trial court
erred in denying his motion to suppress a statement he made during a
post-indictment, pre-arraignment custodial interrogation. Specifically, he
contends the statement was both the fruit of an illegal search and made
involuntarily. For the reasons that follow, we vacate Scott’s convictions and
sentences and remand this matter to the trial court for further proceedings.
Factual and Procedural Background
¶2 One evening in August 2019, law enforcement responded to
a shooting incident at a Tucson area gas station and convenience store.
Shooting victim A.C. and his uncle, A.B., had stopped at the station for gas.
Shortly after their arrival, another car pulled into the station. Some of its
occupants emerged and walked toward A.C.’s vehicle. After an apparent
argument and exchange of gunfire, A.C. sustained two gunshot wounds in
his legs. He died from blood loss resulting from those injuries.
¶3 After interviewing Scott and a number of other people about
the incident, Pima County Sheriff’s Department officers eventually came to
suspect Scott was responsible for the shooting. An investigating detective
obtained a search warrant to obtain buccal swabs of Scott’s DNA. The DNA
samples from those swabs matched genetic material found on some of the
shell casings collected at the crime scene. Using that DNA evidence, the
state obtained a grand jury indictment against Scott. Scott was then
arrested, transported to the sheriff’s main station, and questioned by the
detective. During that interview, Scott confessed that he had shot A.C. but
maintained that he had acted in self-defense. Scott was not booked into the
jail, nor was he taken to court for an initial appearance before this
questioning.
¶4 The trial court suppressed the results of the DNA test after
determining the underlying search warrant was obtained with insufficient
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Opinion of the Court
probable cause. But the court did not suppress Scott’s confession to
shooting A.C. After a five-day trial, the jury found Scott guilty of the
charges outlined above. The court sentenced him to concurrent terms of
imprisonment, the longest of which was fifteen years.
¶5 This appeal followed. We have jurisdiction pursuant to
A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
Discussion
¶6 On appeal, Scott argues the trial court abused its discretion
when it denied his motion to suppress his December 2019 admission that
he had shot A.C. As he argued below, Scott contends this statement was a
fruit of the illegally obtained search warrant for his DNA. He maintains
that, because his confession occurred immediately after being confronted
with that evidence, his confession was the direct, unattenuated fruit of the
poisonous tree.
¶7 We generally review a trial court’s denial of a motion to
suppress for an abuse of discretion. State v. Sallard, 247 Ariz. 464, ¶ 7 (App.
2019). A court abuses its discretion when it makes an error of law. State v.
Lietzau, 248 Ariz. 576, ¶ 8 (2020). However, a “trial court’s determination of
what constitutes the ‘fruit’ of the state’s ‘poisonous tree’ is a mixed question
of fact and law implicating constitutional questions.” State v. Hackman, 189
Ariz. 505, 508 (App. 1997) (citing Ornelas v. United States, 517 U.S. 690,
696-98 (1996)). As such, we review de novo its conclusions regarding the
suppression of evidence. Id. Thus, although “we view the evidence and
draw all reasonable inferences in favor of upholding the court’s factual
findings, we are not bound by its legal conclusions.” Id. at 508-09. And, we
consider only the evidence presented at the suppression hearing. State v.
Fristoe, 251 Ariz. 255, ¶ 2 (App. 2021).
¶8 In granting Scott’s motion to suppress the DNA evidence, the
trial court found that the investigating detective had provided a “false
statement” on his application for a search warrant. Specifically, the
detective had written that “during the many interviews conducted thus far,
the name Tito was mentioned a number of times as being the person who
shot Anthony.” The court found only one of those interviewed had made
such a suggestion, and even then it was “at best equivocal” and
“unsubstantiated.” The court thus concluded the detective had shown
“reckless disregard” for accuracy on his sworn application for a search
warrant. In accordance with Franks v. Delaware, 438 U.S. 154 (1978), the
court redacted the false statement from the warrant application and found
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Opinion of the Court
that, absent the statement, the warrant was insufficient to support a finding
of probable cause. See also State v. Buccini, 167 Ariz. 550 (1991).
Accordingly, the court granted Scott’s motion to suppress “the fruits of the
warrant,” specifically buccal swabs and a cell phone collected in September
2019.
¶9 Scott also maintained that his post-arrest statements should
likewise be suppressed as the fruit of the illegally obtained warrant. The
trial court rejected this argument, finding that the grand jury indictment
was an intervening cause of his arrest and subsequent custodial
interrogation. We address that claim more fully here.
¶10 The Fourth Amendment to the United States Constitution
prohibits the state from using “evidence seized during an unlawful search”
as “proof against the victim of the search.” Wong Sun v. United States, 371
U.S. 471, 484 (1963). To deter such conduct, the Supreme Court has required
exclusion of evidence obtained “by exploitation of the illegality” of an arrest
or search. Brown v. Illinois, 422 U.S. 590, 599-600 (1975). This “prohibition
extends as well to the indirect as the direct products of such invasions.”
Wong Sun, 371 U.S. at 484. The exclusionary rule exists, at least in part, to
deter “lawless conduct by” officers. Id. at 486. “Although exclusion is not
itself a personal constitutional right, it serves to enforce the underlying
personal right to be free from unreasonable searches and seizures by
deterring violations of the Fourth Amendment.” United States v. Shetler, 665
F.3d 1150, 1156 (9th Cir. 2011); see also Davis v. United States, 564 U.S. 229,
236-37 (2011).
¶11 In some cases, however, evidence causally connected to an
illegally obtained source may be nonetheless admissible. This can occur
when “the connection between the lawless conduct of the police and the
discovery of the challenged evidence” is so attenuated as to dissipate the
illegality of the officer’s conduct. Wong Sun, 371 U.S. at 487. The relevant
question is “whether, granting establishment of the primary illegality,” the
objected-to evidence has been acquired “by exploitation of that illegality or
instead by means sufficiently distinguishable to be purged of the primary
taint.” Id. at 488 (quoting John MacArthur Maguire, Evidence of Guilt 221
(1959)).
¶12 Here, the detective secured Scott’s confession by exploiting
the illegally seized DNA evidence. During the post-arrest interrogation,
Scott persistently denied his presence at the shooting until he was directly
confronted with that evidence. Indeed, Scott’s first inculpatory statement
demonstrates the central role the illegally obtained evidence—which linked
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Opinion of the Court
him to shell casings—played in his decision to concede he was at the scene
and shot A.C.1
¶13 Thus, under the criteria set forth in Wong Sun, Scott’s
confession would be properly categorized as “fruit of the poisonous tree”
requiring suppression. The detective directly marshalled the illegal
evidence to secure the confession, and he was rewarded in doing so. See
Wong Sun, 371 U.S. at 485 (when defendant makes statement “as a direct
result of an unlawful invasion,” the “verbal evidence which derives so
immediately from an unlawful entry constitutes ‘fruit’ of official
illegality”). As the interrogation demonstrates, the confession was not
acquired by means at all “distinguishable” from “the primary taint” under
a straightforward application of Wong Sun.
¶14 Since Wong Sun, the United States Supreme Court has not
changed the criteria to determine what evidence should be suppressed as
fruit of the poisonous tree. But it has set forth a framework for evaluating
whether evidence has been acquired in a fashion sufficiently
distinguishable from the primary taint. In essence, it has articulated a
three-part test for assessing whether the suppression of evidence, causally
linked to a prior illegality, would serve the purposes of the exclusionary
rule. See Brown, 422 U.S. at 599-600.
¶15 Brown instructs us to consider three factors: (1) “the time
elapsing between the illegality and the acquisition of the evidence,” (2) “the
presence of intervening circumstances,” and (3) “the purpose and flagrancy
of the original official misconduct.” State v. Solano, 187 Ariz. 512, 518 (App.
1996) (summarizing the Brown factors); see also Brown, 422 U.S. at 603-04.2
1Although the interview transcript is not included in the record on
appeal, the trial court read into the record this relevant portion. As read by
the trial court, Scott said to the detective: “You are saying there is ballistics
[DNA evidence on shell casings] of me. . . . Correct? Yes. Okay. So now,
what if I were to tell you that [A.C.] was the aggressor?”
2Some courts have considered voluntariness as a threshold factor the
state must clear before it can contend that the causal connection between
the illegal conduct and the confession was attenuated. See Brown, 422 U.S.
at 604; State v. Reffitt, 145 Ariz. 452, 458 (1985). For the purposes of our
analysis as to this claim, we assume that the confession was otherwise
voluntary. See Solano, 187 Ariz. at 518 n.1. In so doing, we recognize that
Scott has made a related, but distinct, claim that his confession was
involuntary based on his prior interaction with the detective, when Scott
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Opinion of the Court
The first two factors concern whether, through passage of time or
intervening circumstances, the causal connection between the misconduct
and the statement was dissipated or attenuated. Brown, 422 U.S. at 603-04.
¶16 Although three months had passed from the time the
detective collected Scott’s DNA pursuant to an unlawfully obtained
warrant, the record shows that very little, if any, time elapsed between the
detective’s exploitation of the resulting DNA evidence and Scott’s
incriminating statement. As the detective himself conceded at the
suppression hearing, it was not until he disclosed that Scott’s DNA had
been found on the shell casings that Scott made any mention of involvement
in the shooting. Thus, the temporal immediacy between the detective’s
exploitation of the DNA evidence and the confession supports suppression
as a remedy. Notably, the arrest and interrogation of Scott, during which
the detective exploited the illegal evidence to secure the confession,
constituted that detective’s first interaction with Scott after his illegal search
of Scott for DNA—and Scott’s first awareness that his DNA led to
inculpatory evidence.3
¶17 The dissent contends that the three-month gap between the
illegal search and the confession “weighs against suppression.” It cites a
series of cases, all in the context of wrongful arrests. In those cases, it
observes, much shorter time delays attenuated the coercive impact of the
wrongful arrest on the defendant’s subsequent admissions. But, in such
cases, courts necessarily focus on the psychological impact of the wrongful
arrest on the voluntariness of those admissions, an inherently
time-sensitive inquiry.
¶18 But here we address whether the state exploited evidence
acquired from an illegal search to secure a confession. That necessarily
had persistently asserted his right to counsel. Because we vacate Scott’s
convictions and sentences on the ground that his statement should have
been suppressed as the product of illegally obtained evidence, we do not
address his claim that the statement was made involuntarily.
3To the extent the dissent suggests Wong Sun can be read as holding
that a two-day delay attenuates a confession subsequent to an illegal search,
we do not believe this is a correct reading of Wong Sun. See 371 U.S. at 491(in context of multiple defendants subjected to both illegal arrests and
illegal searches, holding Wong Sun’s voluntary confession two days after
illegal arrest was “not the fruit of that arrest” because “connection between
the arrest and the statement” sufficiently attenuated).
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Opinion of the Court
requires an assessment of the effect of that evidence on the defendant’s
decision to confess. Under that analysis, to the extent delay between the
events sheds light on whether the state exploited the illegally acquired
evidence, the relevant temporal factor must be the time from when the
detective made Scott aware of the inculpatory nature of the illegally seized
evidence and Scott’s decision to confess. Here, there was no delay from
which we could conclude the impact of that information was attenuated.
Indeed, there was no delay at all.4 As we discuss below, the state used the
time between its illegal search of Scott and his interrogation to conduct a
DNA test of the illegally secured sample and leverage it to acquire the
indictment, which in turn justified the interrogation in the first instance.
Under those circumstances, we cannot characterize the passage of time as
attenuating the state’s acquisition of the confession.
¶19 Nor does anything in this record suggest any intervening
circumstance, independent of the illegality, that dissipated the causal
connection between the illegality and Scott’s statement. See State v. Monge,
173 Ariz. 279, 281 (1992) (following illegal arrest, consent to search not
intervening event because consent must be . . . independent of the illegal
arrest” (quoting Brown, 422 U.S. at 603)). Although we agree with the trial
court that the grand jury indictment was legally valid despite its reliance
on the illegally obtained evidence, see United States v. Calandra, 414 U.S. 338,
351-52 (1974), we disagree with the court’s suggestion that the indictment
therefore qualified as an intervening factor. As the trial court expressly
found, Scott’s indictment entirely depended on the illegally obtained DNA
evidence. Cf. Utah v. Strieff, 579 U.S. 232, 240 (2016) (“valid” arrest warrant
that “predated” and “was entirely unconnected” to arguably unlawful
investigatory stop was sufficient intervening factor to break causal chain).
Indeed, until Scott confessed to shooting A.C., it was the state’s lone
concrete evidence of guilt.
¶20 Therefore, we cannot characterize the indictment as an
intervening circumstance. Here, it served only as another mechanism by
which the state leveraged the only substantial evidence it possessed: the
illegally acquired DNA swab. In fact, that indictment provided the
authority for Scott’s arrest, which in turn gave the detective the authority
to subject Scott to custodial interrogation. Thus, the causal chain connecting
the illegal evidence to the December interview was unbroken by any event
4Regardless of how we weigh this Brown factor, it would not control
our ultimate conclusion. See Reffitt, 145 Ariz. at 459 (“factor of temporal
proximity is scarcely outcome determinative”).
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Opinion of the Court
independent of the illegal search. See State v. Huez, 240 Ariz. 406, ¶ 23 (App.
2016) (existence of warrant does not necessarily “‘dissipate[] the taint of
illegality,’ because to hold otherwise would allow police to ‘routinely
illegally seiz[e] individuals, knowing that the subsequent discovery of a
warrant would provide after-the-fact justification for illegal conduct’”
(alterations in Huez) (quoting State v. Hummons, 227 Ariz. 78, ¶ 13 (2011))).
¶21 The state contends that the last Brown factor, “the purpose
and flagrancy of the original official misconduct,” was insufficient to justify
the application of the exclusionary rule. As the United States Supreme
Court has repeatedly instructed, “[e]xclusion exacts a heavy toll on both the
judicial system and society at large.” Davis, 564 U.S. at 237. For it to be
appropriate, “the deterrence benefits of suppression must outweigh its
heavy costs.” Id. Thus, the “cost-benefit analysis in exclusion cases” should
“focus the inquiry on the ‘flagrancy of the police misconduct’ at issue.” Id.
at 238 (quoting United States v. Leon, 468 U.S. 897, 911 (1984)).
¶22 In those same cases, however, the Court has also held that the
deterrence benefit to suppression stands at its apex when, as here, a search
warrant issues upon an affidavit that lacks a sufficient foundation for
probable cause. See Leon, 468 U.S. at 914-15, 923; Davis, 564 U.S. at 238.5 In
particular, suppression “remains an appropriate remedy if the magistrate
or judge in issuing a warrant was misled by information in an affidavit that
the affiant knew was false or would have known was false except for his
reckless disregard of the truth.” Leon, 468 U.S. at 923. Controlling our
analysis here, the Court has also indicated that such underlying
recklessness supports suppression as a remedy as to the indirect fruits of
that misconduct. Herring v. United States, 555 U.S. 135, 144 (2009) (in context
of Brown inquiry, exclusionary rule serves to deter, inter alia, reckless
underlying conduct).
¶23 Here, the trial court expressly found that the detective
recklessly disregarded the truth in presenting grounds for the search
warrant. See Davis, 564 U.S. at 238 (“deterrent value of exclusion is strong
and tends to outweigh the resulting costs” when police exhibit reckless
5Leon limited application of the exclusionary rule to reject
suppression of evidence “obtained in objectively reasonable reliance on a
subsequently invalidated search warrant,” but expressly withheld from this
exception warrants invalidated under Franks. 468 U.S. at 922-23.
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Opinion of the Court
disregard for Fourth Amendment rights). The record before us amply
supports the trial court’s conclusion.
¶24 In the affidavit, the detective implied that multiple witnesses
had identified Scott as the shooter. But in fact, A.B.—the only eyewitness
to identify any specific shooter—had identified that shooter as O.V., who
went by the nickname “Tino.”6 No eyewitness had identified Scott as the
shooter. And O.V., the lone witness to equivocally suggest that Scott might
have been the shooter, himself relied on rumor7 and, as a suspect himself,
had a possible motivation to direct blame elsewhere. The detective also
exaggerated the only other evidence linking Scott to the shooting: the GPS
evidence indicating that Scott had been in the vicinity of the shooting when
it occurred. He omitted from the affidavit that Scott’s residence was a
couple of blocks away from the shooting.8 Placed in that proper context,
the GPS evidence did little to implicate him in the crime.
¶25 This court can reasonably assume that a homicide detective
knows, with some particularity, the strength or paucity of inculpatory facts
his investigation has discovered as to his lead suspect. Indeed, the affidavit
in this case indicated that the detective was “fully familiar with the facts
and circumstances” he avowed to support probable cause. On the record
before us, then, the record amply supports the trial court’s conclusion that
the above misrepresentations and omissions constituted reckless disregard
for the accuracy of the affidavit. We therefore conclude that all three Brown
factors corroborate our conclusion, including the most important, the
flagrancy of the underlying unconstitutional conduct.
¶26 Notably, the Brown test and its Supreme Court progeny
address attenuation in the context of a confession subsequent to an illegal
6Two other individuals the detective interviewed had also identified
O.V. as the possible shooter.
7The investigating detective read a portion of the transcript of his
interview with O.V. into the record at the suppression hearing. During the
interview, O.V. stated that he did not know why he had mentioned Scott,
only that Scott’s was “the name [O.V. had] heard in that neighborhood a
lot.” The detective then agreed that O.V. had no personal knowledge of
Scott having been involved.
8Thedetective was well aware of this fact. Indeed, he had seen the
GPS evidence on Scott’s phone while standing in the front yard of Scott’s
residence.
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Opinion of the Court
arrest. As the Ninth and Fifth Circuits and the primary treatise on criminal
procedure have acknowledged, other relevant factors emerge “when a
confession follows an illegal search rather than an illegal detention.”
Shetler, 665 F.3d at 1157; 6 Wayne R. LaFave, Search and Seizure: A Treatise
on the Fourth Amendment § 11.4(c) (6th ed. 2022). 9 Specifically, Shetler
identified two additional “relevant considerations”: (1) whether the
interrogating officer questioned the suspect about the illegally seized
evidence; and (2) whether the suspect’s answers might have been
influenced by his knowledge that such evidence had been collected. 665
F.3d at 1158-59. During the interrogation, the detective confronted Scott
with the product of the illegally seized evidence, and Scott’s answers
demonstrate that he was pivotally influenced by it.
¶27 Thus, whether we apply the original Wong Sun test, the Brown
attenuation test, or additional criteria more tailored to confessions
subsequent to illegal searches, we reach the same conclusion. The state
directly exploited its illegally seized evidence, and that exploitation directly
caused Scott’s confession. See Wong Sun, 371 U.S. at 488.
The Dissent
¶28 The exclusionary rule makes the promise of the Fourth
Amendment—that no warrants shall issue for a search “but upon probable
cause, supported by Oath”—more than an aspiration to be circumvented at
the whim of an aggressive investigating officer. As our dissenting
9In an unpublished opinion, the Fifth Circuit has similarly noted that
the analysis applicable to illegal detentions differs from that applicable to
illegal searches because “the causal link between the search and the
statement can be harder to identify.” United States v. Beene, 733 Fed. Appx.
740, 750-51 (5th Cir. 2018); see Ariz. R. Sup. Ct. 111(d) (citation of
extrajurisdictional dispositions permissible as permitted in source
jurisdiction and consistent with Rule 111(c)(1)(C), for persuasive value); 5th
Cir. R. 47.5.4 (unpublished opinions issued after 1996); Fed. R. App. P.
32.1(a) (citation of unpublished federal dispositions). In addition to the two
Shetler factors, the Fifth Circuit also identified as potentially relevant
factors: (1) what evidence law enforcement had already gathered against a
suspect before the illegal search; and (2) “what evidence the illegal search
produces.” Beene, 733 Fed. Appx. at 751. As the Fifth Circuit reasoned, “the
ultimate question remains the same: would the statement have been
obtained regardless of the illegality?” Id. Here, of course, the answer to
that question is “No.”
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Opinion of the Court
colleague correctly observes, our courts have also recognized the costs of
the exclusionary rule. The Fourth Amendment therefore requires
suppression of evidence only when the deterrence benefits outweigh those
costs. In the abstract, reasonable minds can differ as to how our society
should value and weigh those competing interests as to the indirect
evidentiary fruits of an illegality. But this court is not at liberty to conduct
that calculus anew. Rather, the United States Supreme Court has set forth
manageable standards that determine whether evidence that has been
acquired by exploitation of other illegally secured evidence should be
suppressed. Our duty is to apply those standards.
¶29 The dissent parts ways with our reasoning in several respects
that merit a comprehensive response. In essence, the dissent contends that
an officer’s recklessness in securing a search warrant fails to justify a finding
of flagrancy under the Brown test for suppressing the warrant’s indirect
fruits. But we are duty-bound to follow the controlling jurisprudence of the
United States Supreme Court in how we assess that question. In applying
the Brown test, Chief Justice Roberts expressly clarified the level of
underlying police misconduct compelling suppression of evidence as fruit
of the poisonous tree: “As laid out in our cases, the exclusionary rule serves
to deter deliberate, reckless, or grossly negligent conduct . . . .” Herring, 555
U.S. at 144 (emphasis added). Indeed, the Supreme Court has repeatedly
held that such reckless conduct justifies the application of the exclusionary
rule. The Court has so held both in the context of search warrant affidavits
and in determining whether to suppress the indirect fruits of an officer’s
misbehavior. See, e.g., id. (fruit of poisonous tree); Franks, 438 U.S. at 171-72(search warrant affidavit); Leon, 468 U.S. at 923 (same); Davis, 564 U.S. at
238, 235 (automobile search incident to arrest). Thus, to the extent the
dissent maintains that a showing of intentional or purposeful police
misconduct should be necessary to justify exclusion of evidence “down the
causal chain” of the initial illegality, its reasoning contradicts our settled
standards for addressing the admissibility of such evidence.
¶30 Even assuming that, in an individual case, an especially
mitigated form of recklessness could be an insufficient basis to trigger the
deterrence purpose of the exclusionary rule under the Brown test, see, e.g.,
United States v. Yorgensen, 845 F.3d. 908, 915 (8th Cir. 2017) (insufficient
flagrancy when district court’s finding of inexperienced young officer’s
recklessness insufficient when it amounted to no more than unreasonable
mistake); but see Herring, 555 U.S. at 144 (gross negligence sufficient
flagrancy to trigger exclusion), we cannot agree that the detective’s
behavior here would fit that description. In the affidavit under oath, the
detective presented two bases for probable cause. Both were misleading.
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Opinion of the Court
The vast factual gap between the detective’s avowal (numerous witnesses
mentioning Scott as “being the person who shot [A.C.]”) and the actual
evidence collected (a single motivated witness, not present at the incident,
offering only neighborhood street rumor), cannot be plausibly explained as
the product of mere semantic imprecision, or a naïve officer’s
misunderstanding of his investigative capabilities. Rather, the detective
displayed a more robust recklessness calling for the deterrent effect of
suppression as a remedy under the Brown/Herring standard.
¶31 To the extent the dissent argues that mere suppression of the
direct fruits of the police misconduct should suffice to deter future
misconduct, its reasoning is at odds with the fruit of the poisonous tree
doctrine itself. See, e.g., Wong Sun, 371 U.S. at 484-85 (holding exclusionary
rule “extends as well to the indirect as the direct products of such
invasions,” reasoning that the “essence of a provision forbidding the
acquisition of evidence . . . is that not merely evidence so acquired shall not
be used before the Court but that it shall not be used at all” (quoting
Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 (1920))). That
doctrine exists precisely to avoid incentivizing illegal investigative
strategies that can ultimately reward law enforcement with other evidence
leading to a conviction.
¶32 In this case, the state and the detective could, without
detriment to their case, forfeit the DNA evidence (that suggested Scott had,
at some point, touched the casings discovered at the scene) for Scott’s
confession to having shot the victim. On the record before us, the illegally
obtained DNA evidence was the lever used both to secure a custodial
interrogation and to trigger the confession during that interrogation. With
the confession unsuppressed, the detective’s misconduct was rewarded
because it effectively achieved his investigative goals—the defendant’s
conviction. Thus, the deterrent effect of merely suppressing the DNA
evidence appears questionable in this very case.
¶33 Our colleague also maintains that the detective’s misconduct
is mitigated by the fact he could have provided sufficient probable cause to
secure a lawful warrant. But, when determining whether to suppress
evidence in the context of an illegally-obtained search warrant—as
distinguished from a wrongful arrest—that is not the criteria employed in
our controlling jurisprudence. When, as here, an officer provides to the
magistrate substantially inaccurate facts supporting probable cause, the
exclusionary rule applies if: (1) the officer’s inaccurate presentation was
intentional, reckless, or grossly negligent; and (2) after redacting the
inaccurate information from the affidavit, the remaining facts would not
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Opinion of the Court
support probable cause to issue the warrant. See Franks, 438 U.S. at 156,
171-72; Herring, 555 U.S. at 144-45; Davis, 564 U.S. at 238 (same); cf. Shetler,
665 F.3d at 1157 (“Although the presence of probable cause may generally
be the ‘dispositive’ issue in determining whether a confession stemming
from an illegal detention should be suppressed, . . . ‘[t]he analysis that
applies to illegal detentions differs from that applied to illegal searches.’”)
(alteration in Shetler) (quoting United States v. Crawford, 372 F.3d 1048, 1054
(9th Cir. 2004)). In short, the Supreme Court has set forth the criteria for
determining whether evidence must be suppressed under the
circumstances here. Whether an officer could have provided accurate
information sufficient to support probable cause is not among them.
¶34 Sound logic supports this approach in the warrant context.
The Fourth Amendment requires not only that the state possess probable
cause to search a person, but also that a neutral magistrate determine
whether such cause exists. See Franks, 438 U.S. at 164-65 (“The bulwark of
Fourth Amendment protection, of course, is the Warrant Clause, requiring
that, absent certain exceptions, police obtain a warrant from a neutral and
disinterested magistrate before embarking upon a search,” and “it is the
magistrate who must determine independently whether there is probable
cause.”). For that regime to function, judicial officers must receive accurate
information. Cf. Aguilar v. Texas, 378 U.S. 108, 109 n.1 (1964) (“It is
elementary that in passing on the validity of a warrant, the reviewing court
may consider only information brought to the magistrate’s attention.”). If
officers could recklessly present flagrantly inaccurate affidavits without
consequence to their subsequent investigations—so long as they believe
they have or may eventually have probable cause—the independent
assessment of the “neutral magistrate” would become little more than a
rubber stamp for aggressive detectives.
¶35 As the dissent correctly observes, the trial court did opine that
the detective possessed sufficient evidence that he could have secured a
lawful warrant. But, even assuming that we should be reluctant to suppress
the fruits of an unlawfully acquired search warrant when the state
possesses evidence sufficient to show probable cause, we are skeptical that
the detective possessed such information. See Buccini, 167 Ariz. at 555-56,
558 (existence of probable cause mixed question of law and fact reviewed
de novo on appeal). Accepting, as the trial court did, the veracity of the
testimony at the suppression hearing, but shorn of the exaggerations in the
detective’s search warrant affidavit, the investigation had discovered little
more than a neighborhood rumor as to the identity of A.C.’s enemies, one
of whom was Scott. See Dunaway v. New York, 442 U.S. 200, 213 (1979)
(“common rumor . . . was not adequate to support a warrant for arrest”)
13
STATE v. SCOTT
Opinion of the Court
(quoting Henry v. United States, 361 U.S. 98, 101 (1959)); see also United States
v. Lopez, 482 F.3d 1067, 1072 (9th Cir. 2007) (same). Further, when probable
cause is so debatable, officers might have their greatest temptation to
exaggerate when seeking a warrant. Under that circumstance, the specter
of suppression serves an indispensable role in encouraging exactingly
accurate affidavits. See Dunaway, 442 U.S. at 218 (“When there is a close
causal connection between the illegal seizure and the confession, not only
is exclusion of the evidence more likely to deter similar police misconduct
in the future, but also use of the evidence is more likely to compromise the
integrity of the courts.”).
¶36 Lastly, the dissent raises the novel contention that, because
officers are generally entitled to be untruthful when interrogating suspects,
they ought similarly be entitled to truthfully marshal unlawfully acquired
evidence to secure a confession. In the same vein, the state argues on appeal
that “because police are permitted to lie about the existence of physical
evidence to obtain a confession, the provenance of any actual physical
evidence cannot make a confession involuntary.”
¶37 But we can find no jurisprudence that authorizes us to
overlook an officer’s direct exploitation of illegally seized evidence to
secure other evidence, simply because the officer hypothetically possessed
lawful investigative strategies that could have been equally effective.
Rather, we must draw our conclusions based on the actual facts of the case
before us. The improper search did occur. The detective served Scott with
the search warrant and swabbed his mouth for buccal cells. To Scott, this
necessarily strengthened the credibility of the detective’s later, truthful
claim that DNA evidence linked Scott to the shooting. Thus, the illegally
secured evidence gave the detective a lever far more persuasive than a mere
fabricated assertion that such DNA evidence existed. See Shetler, 665 F.3d
at 1158 (in considering evidence collected as product of illegal search, “the
answers the suspect gives to officials questioning him may be influenced
by his knowledge that the officials had already seized certain evidence” and
that knowledge could tend to induce confession by demonstrating futility
of remaining silent). We decline to speculate whether Scott would have
similarly confessed if the officer had instead conducted no illegal search but
merely claimed he had secured such evidence. Nor can we overlook that,
absent the unlawful search, the detective lacked a sufficient basis to secure
a custodial interrogation in the first instance.
¶38 As our own supreme court has observed, our controlling
inquiry here is whether the confession was procured by exploitation of an
illegality—not whether an officer’s interrogation strategy itself was lawful.
14
STATE v. SCOTT
Opinion of the Court
See State v. Reffitt, 145 Ariz. 452, 457-59 (1985) (voluntariness necessary but
not sufficient condition of admitting confession acquired after illegal arrest:
controlling inquiry is whether confession was procured by exploitation of
unlawful invasion). Thus, the detective’s entitlement to lie, a factor
arguably relevant to a voluntariness analysis, does not bear on whether, on
the record before us, the detective exploited the DNA evidence to acquire
those admissions.
¶39 Finally, the state’s argument would always foreclose the fruit
of the poisonous tree doctrine when the state has marshalled illegally
obtained physical evidence to secure a confession. This is because, in every
case, the officers could have hypothetically instead lied about the state’s
evidence during the interrogation instead of conducting an illegal search.
Such a precedent would reward officers for conducting illegal searches,
secure in the knowledge that they could exploit the fruits of those searches
to induce case-resolving confessions, even if the physical evidence itself is
ultimately suppressed. The fruit of the poisonous tree doctrine exists to
prevent this very practice. See Franks, 438 U.S. at 168 (refusing to “denude
the probable-cause requirement of all real meaning”).
¶40 In sum, the trial court found that the detective had acted
recklessly in providing false and misleading evidence against Scott to
secure a search warrant for his buccal swabs. In fact, the affidavit
demonstrates that the evidence offered to support probable cause was
entirely of this variety. And the record unambiguously demonstrates that
the state directly exploited the fruits of that illegality both to secure an
indictment justifying arrest, then to secure Scott’s admissions upon that
arrest. If we are to take seriously the Supreme Court’s direction that the
exclusionary rule prohibits “exploitation of the illegality” of a search,
Brown, 422 U.S. at 599-600, then the facts of this case compel suppression
not only of the DNA evidence itself, but also of Scott’s inculpatory
statements, acquired through the unattenuated use of that illegally
acquired evidence.
Disposition
¶41 We therefore vacate Scott’s convictions and sentences, and
remand this matter to the trial court for further proceedings consistent with
this opinion.
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STATE v. SCOTT
Opinion of the Court
C A T T A N I, Judge, dissenting:
¶42 The Majority acknowledges the “heavy toll” that suppression
exacts and correctly recites the principle that suppression must be applied
so that its “deterrence benefits . . . outweigh its heavy costs.” See supra ¶ 21
(quoting Davis v. United States, 564 U.S. 229, 237 (2011)). In my view,
however, the Majority’s application of the doctrine here stretches
suppression beyond that point. Accordingly, and for reasons that follow, I
respectfully dissent.
¶43 This case involves a single constitutional violation: a
detective’s reckless misstatement of fact in the warrant affidavit submitted
to obtain buccal swabs from Scott. The superior court assessed the deficient
affidavit and addressed the violation by suppressing the DNA evidence
derived from the buccal swab. See Franks v. Delaware, 438 U.S. 154, 155–56
(1978). But in so ruling, the court also found that the deficient affidavit
underlying the search warrant was not the result of intentional misconduct
by law enforcement, a finding to which we defer. See State v. Buccini, 167
Ariz. 550, 554 (1991). And the court observed that a more carefully drafted
affidavit—based only on information known to the detective at the time—
would have supported a finding of probable cause for the search.
¶44 The question here is not whether there was a constitutional
violation that required suppression of evidence. There was such a
violation, and the superior court did precisely what was required under
Franks by suppressing the DNA evidence. But contrary to the Majority’s
reasoning, nothing further was required to remedy the constitutional
violation or to further deter future misconduct. See Brown v. Illinois, 422
U.S. 590, 599-600 (1975) (describing the purpose of suppression as “to
prevent, not to repair”).
¶45 Under Brown, in assessing whether to suppress evidence
beyond what was seized unconstitutionally, we consider (1) the “temporal
proximity” of the illegality and acquisition of the evidence sought to be
suppressed, (2) the existence of any “intervening circumstances,” and
(3) “the purpose and flagrancy of the official misconduct.” Id. at 603-04. Of
those factors, the flagrancy of the misconduct is “particularly” relevant. Id.
at 604; see also State v. Reffitt, 145 Ariz. 452, 459-60 (1985) (noting that among
the Brown factors, flagrancy of official misconduct “is entitled to special
weight”). And here, an analysis of these factors supports the superior
court’s conclusion that suppression of Scott’s confession (an assertion that
he was acting in self-defense) was not required.
16
STATE v. SCOTT
Opinion of the Court
¶46 First, as to temporal proximity, there was a three-month gap
between the illegal search and Scott’s eventual confession, which weighs
against suppression. This timing suggests even more attenuation than, for
example, a confession the United States Supreme Court deemed admissible
in Wong Sun v. United States, 371 U.S. 471 (1963). There, the Court held that
when a defendant, although initially unlawfully detained, had been
released from custody and ultimately confessed several days later when
questioned voluntarily, “the connection between the arrest and the
statement had ‘become so attenuated as to dissipate the taint.’” Id. at 491(quoting Nardone v. United States, 308 U.S. 338, 341 (1939)); see also Brown,
422 U.S. at 604 (affirming suppression when less than two hours elapsed
between law enforcement’s illegal conduct and a subsequently obtained
confession); Reffitt, 145 Ariz. at 459 (collecting cases and noting that a delay
of mere hours between illegality and confession would often—but not
always—weigh in favor of suppression).
¶47 The Majority posits that the time-lapse factor under Brown
weighs in favor of suppression because Scott confessed almost immediately
after the detective told Scott that his DNA matched genetic material found
on shell casings at the crime scene. See supra ¶¶ 16-18. Scott likewise asserts
that his circumstances meet the immediacy factor under Brown because he
was “directly confronted” with the DNA evidence during the interview.
But the United States Supreme Court has recognized that there is a
significant difference between questioning a defendant during or
immediately after a constitutionally improper search, and questioning a
defendant several months after the improper search. See Wong Sun, 371 U.S.
at 486-87, 491 (suppressing confession obtained from one defendant during
an illegal search and seizure, while approving the admission in evidence of
a second defendant’s confession obtained several days after the constitutional
violation). Neither Scott nor the Majority suggests that confronting and
questioning a Mirandized defendant is an independent constitutional
violation absent involuntariness, and they do not cite any authority
suggesting that the time-lapse factor under Brown is measured from
anything other than the date of the constitutional violation. Nor am I aware
of any such authority.
¶48 Second, as to intervening circumstances, I find compelling the
superior court’s finding that, faulty warrant affidavit aside, the detective
had information available at the time of the search that would have sufficed
to establish probable cause.10 This, too, weighs against suppression. See
10 The Majority attempts to undermine the superior court’s
discretionary probable cause assessment, suggesting that GPS evidence
17
STATE v. SCOTT
Opinion of the Court
Reffitt, 145 Ariz. at 459. Although the Majority suggests existence of
probable cause for the initial search is not germane to the analysis, see supra
¶¶ 35, 37, our own supreme court has observed that the existence of
probable cause at the time of the initial illegality may be “one such
intervening factor that tends to break the chain of causation between the
illegal [conduct] and the confession.” Reffitt, 145 Ariz. at 459; see also id. at
459-60 (collecting cases to that effect from multiple jurisdictions). Notably,
the key authorities on which the Majority relies involved cases in which law
enforcement officers neither sought a warrant nor had probable cause to
support any such request. See, e.g., Wong Sun, 371 U.S. at 481-82, 491; Brown,
422 U.S. at 592.11
¶49 Finally, as to the purpose and flagrancy of the underlying
official misconduct, the detective’s reckless—not intentional—
misstatement in the warrant affidavit (an affidavit in which the detective
included exculpatory information as well) falls far short of flagrant, which
likewise weighs against suppression. See, e.g., Wong Sun, 371 U.S. at 479-81(arrest based on “mere suspicion”); Brown, 422 U.S. at 605 (relying heavily
on the lack of probable cause underlying officials’ actions taken “in the
hope that something might turn up” in finding purposeful and flagrant
misconduct); Dunaway v. New York, 442 U.S. 200, 218 (1979) (similar); Taylor
v. Alabama, 457 U.S. 687, 693 (1982) (similar). The Majority offers its view
that “the detective displayed a more robust recklessness calling for the
deterrent effect of suppression as a remedy.” See supra ¶ 30. But the
Majority has simply substituted its own factual assessment for that of the
superior court, which is beyond our purview on appeal. See Buccini, 167
Ariz. at 554.
showing Scott was in the vicinity when the shooting occurred “did little to
implicate [Scott] in the crime” because Scott lived nearby. See supra ¶ 24.
But even if Scott might have had other reasons to be in the area, the GPS
evidence nevertheless tended to show that he was, in fact, in the area at the
time of the shooting and the evidence was thus relevant to the probable
cause analysis.
11The Majority also relies on the non-binding Ninth Circuit decision
in United States v. Shetler, 665 F.3d 1150 (9th Cir. 2011). But Shetler, like Wong
Sun and Brown, involved a warrantless search, and the confession in that
case was elicited shortly after the illegal search. Id. at 1154-55. And unlike
here, the Shetler court found that there was “flagrant misconduct” by law
enforcement officers. Id. at 1160.
18
STATE v. SCOTT
Opinion of the Court
¶50 The reckless falsehood in the warrant affidavit justified
suppression of the evidence gathered on execution of the resulting invalid
warrant. See State v. Nordstrom, 200 Ariz. 229, 245, ¶ 42 (2001), abrogated on
other grounds by State v. Ferrero, 229 Ariz. 239, 243, ¶ 20 (2012). But when the
underlying constitutional violation is based on a mistake (albeit a reckless
one) rather than intentional misconduct, the deterrent effect of suppressing
a confession this far down the causal chain decreases precipitously.
¶51 The deterrence link here is especially tenuous because, rather
than go through the rigmarole of recklessly falsifying a warrant affidavit to
gather DNA evidence with which to confront a suspect, the police could
simply—and permissibly—lie about having a DNA match. See State v.
Huerstel, 206 Ariz. 93, 106, ¶ 54 (2003) (noting that a confession may be
obtained by lying about the existence of physical evidence if the suspect’s
will has not been overborne) (citing State v. Carrillo, 156 Ariz. 125, 136
(1988)). And here, if law enforcement officers had arrested Scott without a
warrant but with probable cause, and during a Mirandized interview had
falsely told him that DNA evidence linked him to the crime, his response
presumably would have been admissible. The detective did not “exploit”
an illegal search by attempting to elicit a contemporaneous confession;
rather, after three months passed from the improper search, the detective
exploited Scott’s knowledge that he had been at the crime scene by
truthfully telling him there was biological evidence linking him to the
crime.
¶52 Finally, the majority posits that declining to suppress Scott’s
statement essentially “rewards[s] officers for conducting illegal searches,
secure in the knowledge that they [can] exploit the fruits of those searches
to induce case-resolving confessions, even if the physical evidence itself is
ultimately suppressed.” Supra ¶ 39. But the majority’s argument seems to
presuppose intentional misconduct.
¶53 Here, the constitutional violation was a reckless misstatement
in an affidavit seeking a warrant. There was probable cause to obtain a
warrant, and a more carefully drafted affidavit would have supported the
issuance of a warrant. Under these circumstances, I am unpersuaded that
the detective’s actions constitute flagrant misconduct designed to induce a
case-resolving confession.
¶54 In sum, an analysis of the Brown factors—including most
significantly the alleged “flagrancy” of the detective’s misconduct—weighs
heavily against suppression of Scott’s confession. Although the
exclusionary rule serves a valuable purpose in deterring constitutional
19
STATE v. SCOTT
Opinion of the Court
violations, it imposes a great cost by excluding reliable evidence and
undermining faith in the judicial system if it is applied without substantial
basis. And here, given the superior court’s express finding that the
detective did not intentionally mislead the magistrate in seeking a warrant,
application of the exclusionary rule to suppress anything beyond the DNA
evidence obtained under the warrant was not justified. Accordingly, I
would affirm the superior court’s ruling admitting in evidence Scott’s
statement to law enforcement officers.
20