State of Arizona v. Nelson Ivan Boteo-Flores

FILED BY CLERK
IN THE COURT OF APPEALS NOV -8 2012
STATE OF ARIZONA
DIVISION TWO COURT OF APPEALS
DIVISION TWO
THE STATE OF ARIZONA, ) 2 CA-CR 2010-0106
) DEPARTMENT A
Appellee, )
) OPINION
v. )
)
NELSON IVAN BOTEO-FLORES, )
)
Appellant. )
)
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. CR20092575002
Honorable Terry L. Chandler, Judge
REVERSED
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani, Joseph T. Maziarz, and
Amy M. Thorson Tucson
Attorneys for Appellee
Lori J. Lefferts, Pima County Public Defender
By Lisa M. Hise Tucson
Attorneys for Appellant
H O W A R D, Chief Judge.
¶1 After a jury trial, appellant Nelson Boteo-Flores was convicted of
facilitation of theft of a means of transportation and sentenced to the presumptive prison
term of 1.75 years. On remand from our supreme court, we must decide whether Boteo-
Flores’s statements after his de facto arrest were sufficiently an act of free will to purge
the primary taint of the illegal arrest. See State v. Boteo-Flores, 230 Ariz. 105, ¶¶ 21-22,
280 P.3d 1239, 1243 (2012). Boteo-Flores contends the state waived its attenuation
argument by not raising it in the trial court. He further contends that, even if the
argument is not waived, the state failed to show his statements were purged from the taint
of his illegal arrest. Because we find his statements were admitted improperly, we
reverse.
Factual and Procedural Background
¶2 This appeal stems from the trial court’s ruling on Boteo-Flores’s motion to
suppress. We therefore 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.
Gay, 214 Ariz. 214, ¶ 4, 150 P.3d 787, 790 (App. 2007). After a police officer went to an
apartment complex to investigate a report of a stolen truck, he conducted surveillance of
the parking lot and saw a driver arrive in a car registered to that address. A few minutes
later, the car drove away. The driver was using a cellular telephone and binoculars, and
he looked up and down the street before leaving the parking lot. The car returned a short
time later with three occupants whom the officer could not identify. Minutes after that,
Boteo-Flores walked from the apartment complex to the street and looked up and down
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the street several times. The original driver of the car then drove out of the complex in
the stolen truck the officers had been trying to locate. The driver yelled or said
something to Boteo-Flores before he drove away, and Boteo-Flores watched the vehicle
leave.
¶3 The officer approached Boteo-Flores, told him he was a police officer and
handcuffed him. The officer then administered Miranda1 warnings and questioned him.
The officer detained Boteo-Flores for fifteen to twenty minutes while waiting for an auto
theft detective to arrive on scene to question Boteo-Flores. Once the detective arrived, he
was briefed by the first officer and did not begin his interview of Boteo-Flores for fifteen
to twenty minutes after his arrival. The detective asked general questions of Boteo-
Flores, read him the Miranda warnings, and began questioning him. Boteo-Flores then
made incriminating statements.
¶4 Before his jury trial, Boteo-Flores filed a motion to suppress his
incriminating statements, which the trial court denied. After trial, Boteo-Flores was
convicted of facilitation of theft of a means of transportation and sentenced to the
presumptive prison term of 1.75 years. On appeal, he made several arguments, including
that the court had erred in denying his motion to suppress statements because they were
the result of an illegal detention or arrest. State v. Boteo-Flores, No. 2 CA-CR 2010-
0160, ¶¶ 5-12 (memorandum decision filed Apr. 12, 2011). We rejected his arguments
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Miranda v. Arizona, 384 U.S. 436, 444-45 (1966).
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and affirmed his conviction and sentence. Id. ¶¶ 12, 20. Boteo-Flores then petitioned our
supreme court for review.
¶5 The supreme court granted review and considered whether a lawful
investigative stop had become a de facto arrest before Boteo-Flores made admissions.
State v. Boteo-Flores, 230 Ariz. 105, ¶¶ 10, 14-21, 280 P.3d 1239, 1241, 1242-43 (2012).
The supreme court held “[t]he lack of evidence that officers acted diligently in
investigating Boteo-Flores’s connection to the stolen pickup 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.” Id. ¶ 21. The court vacated our prior decision and remanded the case for this
court to determine whether Boteo-Flores’s confession after the illegal arrest was
“‘sufficiently an act of free will to purge the primary taint of the unlawful invasion.’” Id.
¶ 22, quoting State v. Reffitt, 145 Ariz. 452, 457, 702 P.2d 681, 686 (1985).
Waiver and Remand
¶6 We first address Boteo-Flores’s contention that the state has waived its
argument that his statement was purged of the taint from his de facto arrest by not raising
it or developing it below. The state argues it was not required to make this argument
because the trial court denied Boteo-Flores’s motion to suppress statements and,
accordingly, it was not required to raise every alternative argument for a ruling in its
favor.
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¶7 We are required to affirm a trial court’s ruling if legally correct for any
reason and, in doing so, we may address the state’s arguments to uphold the court’s
ruling even if those arguments otherwise could be deemed waived by the state’s failure to
argue them below. See State v. Kinney, 225 Ariz. 550, n.2, 241 P.3d 914, 918 n.2 (App.
2010) (although appellate courts generally will not address issue not raised below, we
may address waived issue when attempting to uphold trial court’s ruling). Additionally,
waiver is a procedural concept that we “do not rigidly employ in [a] mechanical fashion,”
State v. Aleman, 210 Ariz. 232, ¶ 24, 109 P.3d 571, 579 (App. 2005), and we may use our
discretion in determining whether to address issues not raised below, see Kinney, 225
Ariz. 550, n.2, 241 P.3d at 918 n.2.
¶8 Here, the trial court’s ruling denying Boteo-Flores’s motion to suppress his
statements favored the state. On appeal, the state’s argument is merely an assertion of
additional grounds for affirming the trial court’s ruling and, because we are required to
affirm the court’s denial of Boteo-Flores’s motion to suppress for any legally correct
reason, we find the argument is not waived. See Kinney, 225 Ariz. 550, n.2, 241 P.3d at918 n.2.
¶9 Boteo-Flores, however, relies on State v. Brita, 158 Ariz. 121, 124, 761
P.2d 1025, 1028 (1988), which held that it is inappropriate for appellate courts to
consider fact-intensive issues raised for the first time on appeal. He argues “[d]issipation
of taint . . . is an intensely factual argument that requires a full development of the record
at the trial court level.” In Brita, the state was appealing the trial court’s ruling granting
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the defendant’s motion to suppress. Id. at 122, 761 P.2d at 1026. The court of appeals
reversed based on an issue not presented to the lower court, and our supreme court held
this was error because the state had ample opportunity to raise this issue below. Id. at
123-24, 761 P.2d at 1027-28. Our supreme court vacated that portion of the court of
appeals decision, admonishing appellate courts not to consider “unlitigated issues when
to do so violates sound principles of judicial policy.” Id. at 124-25, 761 P.2d at 1028-29.
Brita is distinguishable from the present case, however, because here the trial court
denied Boteo-Flores’s motion to suppress statements and the state is presenting an
argument to uphold the court’s ruling, not to attack it as the state did in Brita. As noted
above, we may consider issues presented for the first time on appeal if they are raised to
uphold the lower court’s ruling. See Kinney, 225 Ariz. 550, n.2, 241 P.3d at 918 n.2.
Accordingly, we conclude we may consider the state’s argument.
¶10 Second, we address whether we should remand this case to the trial court to
allow the state to develop the record in support of its argument raised for the first time on
appeal. The state argues remand is unnecessary because the record is adequate, but if we
determine the record is inadequate, we should remand for the limited purpose of further
developing facts related to the illegal arrest and confession. Boteo-Flores argues remand
to the trial court is unnecessary in this case because the trial court is not required to
review the record under a new legal standard and there are no conflicting facts or
inferences. Albeit for different reasons, the parties agree the factual record developed at
the suppression hearing is sufficient for our review, but argue about the legal conclusion
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to be reached from the facts developed there. In the absence of conflicting facts and
inferences, remand is unnecessary. See State v. Goracke, 210 Ariz. 20, ¶ 12, 106 P.3d
1035, 1038 (App. 2005). It also would be unfair to the defendant to allow the state,
which bears the burden to establish the legality of a confession, another opportunity to do
so. See State v. Amaya-Ruiz, 166 Ariz. 152, 164, 800 P.2d 1260, 1272 (1990) (state’s
burden); State v. Crowley, 202 Ariz. 80, ¶¶ 32, 34, 38, 41 P.3d 618, 629-30 (App. 2002)
(affirming trial court when state did not adequately develop record at suppression
hearing). We therefore reach the merits of the case.
Admission of Statements
¶11 On the merits, Boteo-Flores argues a direct causal connection exists
between the illegal arrest and his admissions, and no evidence shows circumstances that
attenuate the connection or purge its taint. Because the state did not present this issue
below, and the trial court determined that the detention was legal, the court did not reach
this question. But the parties do not dispute any relevant facts. See State v. Spears, 184
Ariz. 277, 284, 908 P.2d 1062, 1069 (1996) (we look only to facts presented at
suppression hearing). Additionally, the admissibility of a confession following an illegal
arrest is a mixed question of law and fact, which we determine as a matter of law. State
v. Monge, 173 Ariz. 279, 281, 842 P.2d 1292, 1294 (1992). Accordingly, we may
determine this issue in the first instance. See State v. Kinney, 225 Ariz. 550, ¶¶ 11, 20,
241 P.3d 914, 919, 921 (App. 2010) (deciding attenuation issue as matter of law even
though not presented to trial court); see also State v. Payne, 223 Ariz. 555, n.8, 225 P.3d
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1131, 1145 n.8 (App. 2009) (“‘If application of a legal principle, even if not raised below,
would dispose of an action on appeal and correctly explain the law, it is appropriate for
us to consider the issue.’”), quoting Evenstad v. State, 178 Ariz. 578, 582, 875 P.2d 811,
815 (App. 1993) (alterations in Payne omitted).
¶12 To determine whether a confession is sufficiently attenuated from an illegal
arrest, we apply the test articulated in State v. Reffitt, 145 Ariz. 452, 458, 702 P.2d 681,
687 (1985). We consider, on a case-by-case basis, (1) the temporal proximity between
the illegal arrest and the confession, (2) the presence of intervening circumstances, and
(3) the purpose and flagrancy of official misconduct. State v. Hummons, 227 Ariz. 78,
¶ 9, 253 P.3d 275, 277 (App. 2011). “A waiver of Miranda rights alone cannot purge the
taint of an illegal arrest.” Reffitt, 145 Ariz. at 458, 702 P.2d at 687.
¶13 Here, an officer stopped Boteo-Flores in connection with the investigation
of a stolen truck, handcuffed him, gave him Miranda warnings, asked him some initial
questions, and called for an auto theft detective to question him further. An illegal de
facto arrest occurred after this initial interaction because police continued to detain
Boteo-Flores in handcuffs for thirty to forty minutes without probable cause. See State v.
Boteo-Flores, 230 Ariz. 105, ¶¶ 14-22, 280 P.3d 1239, 1242-43 (2012). When the auto
theft detective arrived, he gave Miranda warnings again before Boteo-Flores made
incriminating statements.
¶14 Boteo-Flores does not contest the voluntariness of his statements but argues
instead that the arrest cannot be causally separated from the incriminating statements
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because they were given soon after the arrest, there were no intervening circumstances,
and the purpose of the illegal arrest was to interrogate Boteo-Flores further in an attempt
to obtain information about the stolen truck. The state concedes the arrest and confession
occurred in close temporal proximity and there were no intervening circumstances, but
argues the third factor, the purpose and flagrancy of the official misconduct, shows the
taint of the illegal arrest had been purged because the officers were motivated solely by
officer safety. It contends this concern, coupled with the Miranda warnings, can
sufficiently attenuate the confession from the illegal arrest. However, as our supreme
court held, the record does not support a claim that the officers were concerned for their
safety once the first officer to stop Boteo-Flores handcuffed him—but did not feel
compelled to conduct a frisk search—and other officers arrived on the scene. Boteo-
Flores, 230 Ariz. 105, ¶¶ 19-20, 280 P.3d at 1243. And, although the record does not
indicate the officers knew they were violating Boteo-Flores’s rights, they kept him in
custody in order to interrogate him further, thereby exploiting the illegal arrest. Thus, the
Miranda warnings are the only remaining circumstance to attenuate the taint of the illegal
arrest. But our law is clear that Miranda warnings alone are insufficient. See Reffitt, 145
Ariz. at 458, 702 P.2d at 687. Because the state has not shown the taint of the illegal
arrest was purged, the statements made after the de facto arrest were improperly
admitted.
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Conclusion
¶15 For the foregoing reasons, the trial court erred in denying Boteo-Flores’s
motion to suppress. We vacate Boteo-Flores’s conviction and sentence and remand this
case for further proceedings consistent with this decision.
/s/ Joseph W. Howard
JOSEPH W. HOWARD, Chief Judge
CONCURRING:
/s/ Peter J. Eckerstrom
PETER J. ECKERSTROM, Presiding Judge
/s/ J. William Brammer, Jr.
J. WILLIAM BRAMMER, JR., Judge *
*A retired judge of the Arizona Court of Appeals authorized and assigned to sit as a judge on the
Court of Appeals, Division Two, pursuant to Arizona Supreme Court Order filed August 15,
2012.
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