                                IN THE

    SUPREME COURT OF THE STATE OF ARIZONA

                          STATE OF ARIZONA,
                              Appellee,

                                   v.

                        DON JACOB HAVATONE,
                              Appellant.



                          No. CR-15-0387-PR
                          Filed March 9, 2017



           Appeal from the Superior Court in Mohave County
          The Honorable Derek C. Carlisle, Judge Pro Tempore
                          No. CR201201535
                    REVERSED AND REMANDED

      Memorandum Decision of the Court of Appeals, Division One
                         1 CA-CR 14-0223
                      Filed October 27, 2015
                            VACATED


COUNSEL:

Mark Brnovich, Arizona Attorney General, Dominic Draye, Solicitor
General, Joseph T. Maziarz, Chief Counsel, Terry M. Crist, III (argued),
Assistant Attorney General Criminal Appeals, Phoenix, Attorneys for State
of Arizona
                          STATE V. HAVATONE
                            Opinion of the Court




David Goldberg (argued), David Goldberg Attorney at Law, Fort Collins,
CO, Attorney for Don Jacob Havatone


JUSTICE BOLICK authored the opinion of the Court, in which CHIEF
JUSTICE BALES and JUSTICE TIMMER joined. VICE CHIEF JUSTICE
PELANDER, joined by JUSTICE BRUTINEL, concurred in part and
dissented in part.




JUSTICE BOLICK, opinion of the Court:

¶1              This case considers the constitutionality of A.R.S. § 28-
1321(C), the “unconscious clause,” which allows law enforcement officials
to make or direct nonconsensual blood draws from unconscious DUI
suspects. We hold that the provision is unconstitutional as applied to the
facts of this case.

¶2             We also consider whether the good-faith exception to the
exclusionary rule applies here. Following a collision after which defendant
was airlifted to Nevada, a blood draw was taken at the request of Arizona
law enforcement officials, raising the question, unresolved in the trial or
appeals court, of which state’s law applies to decide whether the blood test
results should be suppressed. We hold that under Arizona law, the good-
faith exception would not apply, and thus if our state’s law applies, the
evidence from the blood draw must be suppressed. However, we remand
to the trial court to determine which jurisdiction’s law applies and, if it is
Nevada law, whether it supports application of the good-faith exception.

                                  I.

¶3             On September 17, 2012, Don Jacob Havatone drove his SUV,
with four other passengers, into an oncoming vehicle on Route 66 northeast
of Kingman. A witness driving behind Havatone testified that before the
collision the SUV was driving “erratically” for several miles and repeatedly
crossed the center line. The other vehicle was occupied only by its driver,

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                          STATE V. HAVATONE
                            Opinion of the Court



L.S. After the collision, L.S. saw a man with his foot caught in the SUV’s
windshield crawl out over the hood and lie down in front of the vehicle.
She saw a second occupant, later identified as Havatone, exit the driver’s
side of the SUV and lie down behind the vehicle.

¶4           Department of Public Safety (“DPS”) Officer M.P. responded
to the scene. He approached Havatone, whom medics were treating.
Havatone confirmed he was driving the SUV. When M.P. asked Havatone
what happened, Havatone did not respond. M.P. detected a “heavy odor”
of alcohol emanating from all the SUV’s occupants, including Havatone.
M.P. looked inside the SUV and saw numerous beer cans and an open bottle
of liquor.

¶5           Havatone was airlifted to a Las Vegas hospital for treatment.
Without seeking a warrant, Officer M.P. followed DPS policy and
instructed DPS dispatch to request that Las Vegas police officers obtain a
blood sample. Havatone was unconscious when the blood sample was
taken. The sample showed a blood alcohol concentration (“BAC”) of 0.212.

¶6            The State charged Havatone with driving under the influence
of intoxicating liquor while his license was suspended or revoked,
aggravated driving under the extreme influence of intoxicating liquor with
a BAC of 0.20 or more with a suspended license, aggravated assault of L.S.
with a deadly weapon or dangerous instrument, recklessly endangering
L.S. with a substantial risk of imminent death, and four counts of
aggravated assault of the occupants of his vehicle with a deadly weapon or
dangerous instrument.

¶7            Havatone moved to suppress the blood test results, arguing
that the test was a warrantless search prohibited by the Fourth
Amendment. The trial court denied the motion, finding the search
permissible under both Arizona and Nevada law because the police had
probable cause to believe that Havatone was driving while intoxicated and
both states’ “implied consent” laws authorize blood draws from
unconscious DUI suspects. See A.R.S. § 28-1321(C); Nev. Rev. Stat.
§ 484C.160(1), (3). Alternatively, the court ruled that even if a warrant was
required, the police acted in reliance on statutes and cases in effect when
the blood was seized, thus satisfying the good-faith exception to the


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                           STATE V. HAVATONE
                             Opinion of the Court



exclusionary rule.

¶8           The jury found Havatone guilty of four offenses as charged
and guilty of lesser included offenses for other charges. The trial court
imposed concurrent sentences of 17.5 years in prison.

¶9           On appeal, Havatone argued that the statute authorizing his
blood draw while unconscious violated his Fourth Amendment rights. The
court of appeals affirmed. It did not reach the constitutional question but
reasoned that even if the blood draw violated Havatone’s Fourth
Amendment rights, it was shielded by the good-faith exception to the
exclusionary rule. State v. Havatone, 1 CA-CR 14-0223, at *5 ¶ 20, *6 ¶ 25
(Ariz. App. Oct. 27, 2015) (“[T]he search was objectively reasonable in either
state, so we—like the trial court—need not decide whether Arizona or
Nevada law applies.”).

¶10            We granted review because the issues presented are of first
impression and statewide importance. We have jurisdiction under article
6, section 5(3) of the Arizona Constitution and A.R.S. § 12-120.24.

                                       II.

¶11            We review rulings on motions to suppress for an abuse of
discretion, considering only the evidence presented at the suppression
hearing and viewing it in the light most favorable to sustaining the trial
court’s ruling. State v. Butler, 232 Ariz. 84, 87 ¶ 8, 302 P.3d 609, 612 (2013).
“An error of law constitutes an abuse of discretion.” State v. Bernstein, 237
Ariz. 226, 228 ¶ 9, 349 P.3d 200, 202 (2015). Both a statute’s constitutionality
under the Fourth Amendment and the applicability of the good-faith
exception to the exclusionary rule are questions of law that we decide de
novo. Gallardo v. State, 236 Ariz. 84, 87 ¶ 8, 336 P.3d 717, 720 (2014); State v.
Crowley, 202 Ariz. 80, 91 ¶ 32, 41 P.3d 618, 629 (App. 2002).


¶12           Arizona’s “implied consent” statute, A.R.S. § 28-1321, reads
in pertinent part:




                                       4
                          STATE V. HAVATONE
                            Opinion of the Court



      A. A person who operates a motor vehicle in this state gives
      consent . . . to a test or tests of the person’s blood, breath,
      urine or other bodily substance for the purpose of
      determining alcohol concentration or drug content if the
      person is arrested for any offense arising out of acts alleged to
      have been committed . . . while the person was driving or in
      actual physical control of a motor vehicle while under the
      influence of intoxicating liquor or drugs. The test or tests
      chosen by the law enforcement agency shall be administered
      at the direction of a law enforcement officer having
      reasonable grounds to believe that the person was driving or
      in actual physical control of a motor vehicle in this state . . .
      (1) [while] under the influence of intoxicating liquor or drugs.

      ....

      C. A person who is dead, unconscious or otherwise in a
      condition rendering the person incapable of refusal is deemed
      not to have withdrawn the consent provided by subsection
      A....

Subsection C, at issue here, is known as the “unconscious clause.”

¶13          After we granted review, the State acknowledged that the
unconscious clause is unconstitutional as applied to the facts of the case.
The State takes the position that blood may be taken from a DUI suspect
under the unconscious clause only if case-specific exigent circumstances
exist. We agree.

¶14          A blood draw taken or directed by the government implicates
privacy rights protected by the Constitution. The Fourth Amendment
provides,

      The right of the people to be secure in their persons, houses,
      papers, and effects, against unreasonable searches and
      seizures, shall not be violated, and no warrants shall issue, but
      upon probable cause, supported by oath or affirmation, and
      particularly describing the place to be searched, and the


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                           STATE V. HAVATONE
                             Opinion of the Court



       persons or things to be seized.

U.S. Const. amend. IV. 1

¶15            In Missouri v. McNeely, 133 S. Ct. 1552 (2013), decided after the
arrest here, the United States Supreme Court considered the
constitutionality of nonconsensual, warrantless blood draws in DUI cases
where police relied solely upon the natural dissipation of alcohol in the
blood. Such a “compelled physical intrusion” beneath the skin and into the
veins “to obtain a sample of his blood for use as evidence in a criminal
investigation . . . implicates an individual’s ‘most personal and deep-rooted
expectations of privacy.’” Id. at 1558 (citation omitted). The Court
confirmed the view, expressed in prior cases, that such searches could be
justified only by exigent circumstances. “In short,” the Court ruled, “while
the natural dissipation of alcohol in the blood may support a finding of
exigency in a specific case, . . . it does not do so categorically. Whether a
warrantless blood test of a drunk-driving suspect is reasonable must be
determined case by case based on the totality of the circumstances.” Id. at
1563.

¶16           Following McNeely, we ruled in State v. Butler that Arizona’s
implied consent statute, A.R.S. § 28-1321, does not relieve the state of
establishing voluntary consent or another exception to the warrant
requirement, such as exigent circumstances, to justify warrantless blood
draws from DUI suspects. 232 Ariz. at 87–88 ¶¶ 12–13, 18, 302 P.3d at 612–
13. Furthermore, in Birchfield v. North Dakota, 136 S. Ct. 2160, 2180 (2016),
the United States Supreme Court noted that the exigency exception “always
requires case-by-case determinations.”

¶17           McNeely and Butler establish that absent an exception to the
warrant requirement, nonconsensual, warrantless blood draws from DUI
suspects are unconstitutional. We conclude that the unconscious clause can



1 Article 2, section 8 of the Arizona Constitution also provides, “No person
shall be disturbed in his private affairs, or his home invaded, without
authority of law.” Havatone did not invoke his rights under this provision.


                                       6
                          STATE V. HAVATONE
                            Opinion of the Court



be constitutionally applied only when case-specific exigent circumstances
prevent law enforcement officers from obtaining a warrant. Here, the State
concedes that exigent circumstances did not exist. Rather, Officer M.P.
testified he was following department practice to procure a blood draw
anytime a DUI suspect was sent out of state for emergency treatment.
Because the test was taken pursuant to a blanket policy rather than the
presence of case-specific exigent circumstances, Havatone’s Fourth
Amendment rights were violated.

¶18            Our decision does not vitiate § 28-1321(C). Where police have
probable cause to believe a suspect committed a DUI, a nonconsensual
blood draw from an unconscious person is constitutionally permissible if,
under the totality of the circumstances, law enforcement officials
reasonably determine that they cannot obtain a warrant without significant
delay that would undermine the effectiveness of the testing. Cf. McNeely,
133 S. Ct. at 1561 (noting that “where police officers can reasonably obtain
a warrant before a blood sample can be drawn without significantly
undermining the efficacy of the search, the Fourth Amendment mandates
that they do so”).

                                 III.

¶19           Although the dissent attempts gamely to resuscitate the
argument, ¶ 40, the State expressly concedes that the record “does not show
exigent circumstances beyond the natural dissipation of alcohol in
Appellant’s blood.” Hence, the search violated the Fourth Amendment and
the only issue is whether the good-faith exception to the exclusionary rule
applies. Cf. State v. Valenzuela, 239 Ariz. 299, 309 ¶ 31, 371 P.3d 627, 637
(2016) (“[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.”). To resolve that issue, we must
decide whether before McNeely, DPS reasonably applied a policy of
directing warrantless blood draws from unconscious DUI suspects being
flown out of state for medical treatment based on the belief that the natural
dissipation of alcohol in the blood constituted a per se exigency. The State
bears the burden of proving the good-faith exception applies. See, e.g.,
Crowley, 202 Ariz. at 91 ¶ 32, 41 P.3d at 629.



                                        7
                          STATE V. HAVATONE
                            Opinion of the Court



¶20           The State argues that the blood test results should not be
suppressed for two reasons: (1) at the time of the blood draw here, the
unconscious clause expressly authorized the blood draw and had not been
ruled unconstitutional; and (2) nonconsensual, warrantless blood draws
were permitted based on natural alcohol dissipation in the blood prior to
McNeely, which was not decided until after Havatone’s blood was taken.
For those reasons, the State asserts that the blood draw satisfies the good-
faith exception to the exclusionary rule. We disagree. DPS should have
known that routinely directing blood draws from DUI suspects who were
sent out of state for emergency treatment, without making a case-specific
determination whether a warrant could be timely secured, was either
impermissible or at least constitutionally suspect. Thus, the good-faith
exception does not apply.

¶21            The dissent suggests that the good-faith exception applies
unless the police officers exhibit deliberate, reckless, or grossly negligent
disregard for Fourth Amendment rights. See ¶ 50 (citing Davis v. United
States, 564 U.S. 229, 240 (2011)). Because the exclusionary rule also serves
to deter “recurring or systemic negligence,” the good-faith exception will
not apply in such circumstances. See Herring v. United States, 555 U.S. 135,
144 (2009); see also Davis, 564 U.S. at 239 (relying on Herring in concluding
that isolated, nonrecurring police negligence “lacks the culpability required
to justify the harsh sanction of exclusion”). Such “recurring or systemic
negligence” is present in this case.

¶22           Here, the officer followed DPS policy and training that
seeking a warrant was unnecessary under the circumstances. When the
Fourth Amendment violation occurred not as the result of an officer’s fact-
specific determination that obtaining a warrant is infeasible but pursuant
to department practice making such determination unnecessary, we impute
to the law enforcement agency the responsibility to assure that unlawful
seizures will not occur. See Davis, 564 U.S. at 240 (contrasting “‘recurring
or systemic negligence’ on the part of law enforcement,” with conduct that
“involves only simple, ‘isolated’ negligence”). “We should reasonably
presume that law enforcement officials, who stand in the best position to
monitor such errors as occurred here, can influence mundane
communication procedures in order to prevent those errors. That
presumption comports with the notion that the exclusionary rule exists to


                                     8
                            STATE V. HAVATONE
                              Opinion of the Court



deter future police misconduct systemically.” Arizona v. Evans, 514 U.S. 1,
21 (1995) (Stevens, J., dissenting) (citing, inter alia, Stone v. Powell, 428 U.S.
465, 492 (1976)); accord State v. Mitchell, 234 Ariz. 410, 419 ¶ 31, 323 P.3d 69,
78 (App. 2014) (good-faith exception provides “meaningful deterrence
because . . . it incentivizes law enforcement to err on the side of
constitutional behavior”). Suppression of the blood test results here will
have a deterrent effect on police practices that fail to take individual
circumstances into account as the United States Supreme Court has long
required. Cf. Ybarra v. Illinois, 444 U.S. 85, 87, 96 (1979) (striking down
statute allowing officers to detain or search any persons in premises subject
to a search warrant, holding such searches must be based on individual
circumstances); Richards v. Wisconsin, 520 U.S. 385, 387–88 (1997)
(invalidating per se rule that no knock to announce police presence is
permissible in drug warrant cases).

¶23           The record here shows that the DPS officer followed the
department’s regular practice, in which he was trained, to request blood
draws without a warrant whenever a DUI suspect was flown out of state
for treatment. As the dissent aptly puts it, DPS was acting on the belief that
the dissipation of alcohol in the blood created a “per se exigency” that,
before McNeely, ostensibly justified blood draws from DUI suspects. ¶ 57.

¶24            That belief was mistaken.        Davis instructs that law
enforcement acts in good faith if “binding appellate precedent specifically
authorizes a particular police practice.” 564 U.S. at 241. But warrantless
blood draws from DUI suspects based on a “per se exigency” rather than
the totality of individual circumstances have been discredited for over fifty
years. In Schmerber v. California, 384 U.S. 757 (1966), the United States
Supreme Court upheld admission of a blood test taken from a defendant
whom police had probable cause to believe had committed a DUI offense.
The Court observed, “Search warrants are ordinarily required for searches
of dwellings, and absent an emergency, no less could be required where
intrusions into the human body are concerned.” Id. at 770 (emphasis
added).

¶25          The dissent suggests that the emergency in Schmerber was
based on the natural dissipation of alcohol in the blood—that is, a per se
exigency—rather than individualized circumstances making a warrant


                                        9
                           STATE V. HAVATONE
                             Opinion of the Court



untenable. ¶ 53. It was not. The Court concluded that the emergency
justifying the warrantless, nonconsensual blood draw was based on the
“special facts” of the case, “where time had to be taken to bring the accused
to the hospital and to investigate the scene of the accident,” thus “there was
no time to seek out a magistrate and secure a warrant.” Id. at 770–71.

¶26           It is true that alcohol dissipation starts a fast time clock, but
under Schmerber, additional facts are necessary to show it was not feasible
to obtain a warrant during that time frame. As McNeely observes, in the
decades since Schmerber, technology has made it possible to quickly obtain
warrants by phone or otherwise. 133 S. Ct. at 1561–63. The State does not
allege any such “special facts” justifying a warrantless blood draw. Indeed,
the State concedes that no exigency existed apart from the ordinary
dissipation of alcohol in the blood, and the DPS officer testified that
telephonic warrants are possible but he was trained to not obtain a warrant
when a DUI suspect is airlifted out of state.

¶27           The Court in McNeely emphasized that it did not announce a
new constitutional rule but rather reaffirmed Schmerber’s emergency
requirement. “[I]n Schmerber, we considered all of the facts and
circumstances of the particular case and carefully based our holding on
those specific facts.” McNeely, 133 S. Ct. at 1560; see also id. at 1559 (“Our
decision in Schmerber applied this totality of the circumstances approach”);
id. at 1561 (courts should “decide each case on its facts, as we did in
Schmerber”). A per se rule that warrants are never required is at
considerable odds with the Schmerber rule that warrants are required absent
special facts. Hence, the routine practice of directing blood draws in a
particular context, where no exigent circumstances existed, was
impermissible at the time Havatone was arrested.

¶28            The State argues that the good-faith exception applies because
§ 28-1321(C) had not been declared unconstitutional when Havatone’s
blood was taken. Cf. Illinois v. Krull, 480 U.S. 340, 355 (1987) (“Nor can a
law enforcement officer be said to have acted in good-faith reliance upon a
statute if its provisions are such that a reasonable officer should have
known that the statute was unconstitutional.”). Nor do we declare it
unconstitutional here in all respects. See ¶ 18. But Schmerber’s special facts
rule was known, thereby rendering legally untenable the routine practice


                                      10
                           STATE V. HAVATONE
                             Opinion of the Court



of warrantless blood draws from unconscious DUI suspects transported to
other states for medical purposes. And no binding precedents specifically
authorized such a practice. Arizona case law regarding a per se exigency
was, at most, unsettled.

¶29            When the law is unsettled, “exclusion of the evidence
obtained” in a questionable search or seizure “may deter Fourth
Amendment violations.” Davis, 564 U.S. at 250 (Sotomayor, J., concurring
in the judgment); accord United States v. Lara, 815 F.3d 605, 613 (9th Cir. 2016)
(“We decline to expand the rule of Davis to cases in which the appellate
precedent, rather than being binding, is (at best) unclear.”). As the Court
observed in United States v. Johnson, if the exclusionary rule is not applied
in “close” cases, “law enforcement officials would have little incentive to
err on the side of constitutional behavior. Official awareness of the dubious
constitutionality of a practice would be counterbalanced by official
certainty that, so long as the Fourth Amendment law in the area remained
unsettled, evidence obtained through the questionable practice” would not
be excluded. 457 U.S. 537, 561 (1982); accord Mitchell, 234 Ariz. at 419 ¶ 31,
323 P.3d at 78. Similarly, Justice O’Connor warned in Krull that “the failure
to apply the exclusionary rule in the very case in which a state statute is
held to have violated the Fourth Amendment destroys all incentive on the
part of individual criminal defendants to litigate the violation of their
Fourth Amendment rights.” 480 U.S. at 369 (O’Connor, J., dissenting).

¶30            Arizona case law in effect at the time of Havatone’s blood test
did not “specifically authorize[] a particular police practice,” see Davis, 564
U.S. at 241 (emphasis omitted), of directing warrantless, nonconsensual
blood draws from unconscious DUI suspects absent exigent circumstances.
In State v. Cocio, 147 Ariz. 277, 709 P.2d 1336 (1985), we held that a formal
arrest was not necessary for police to obtain a blood sample from a DUI
suspect drawn by medical personnel for treatment purposes. We applied
Schmerber as recognizing exigent circumstances based on dissipation of
alcohol in the blood. Id. at 285–86, 709 P.2d at 1344–45. Construing former
A.R.S. § 28-692(M) (renumbered 28-1388(E)), which allowed police to
obtain medical blood samples, together with applicable United States
Supreme Court precedents, we held that no warrant is necessary when (1)
probable cause exists to believe the suspect has violated DUI laws, (2)
“exigent circumstances are present,” and (3) “the blood is drawn for


                                       11
                           STATE V. HAVATONE
                             Opinion of the Court



medical purposes by medical personnel.” Id. at 286, 709 P.2d at 1345. We
recently rejected any suggestion that Cocio established that alcohol in the
bloodstream constitutes a per se exigency. See State v. Nissley, 241 Ariz. 327,
330 ¶ 11, 387 P.3d 1256, 1259 (2017) (holding the dissipation of alcohol in
the blood does not create a per se exigency, but otherwise leaving the Cocio
decision intact). 2     But even before this clarification, Cocio was
distinguishable because it did not involve a government-directed blood
draw, but was limited to the medical draw exception, where the state
obtains a portion of blood already drawn for medical reasons. See Cocio,
147 Ariz. at 286–87, 709 P.2d at 1345–46 (“[T]he intrusion by the police was
minimal. The blood extraction was not performed at the request of the
police, but pursuant to the orders of the attending physician for medical
purposes. Thus, the intrusion by the police in this case was not the needle
puncture and the insertion of the needle into the vein, but merely a
sampling off of an additional portion of the defendant’s blood.”). Whatever
police conduct Cocio “specifically authorized,” as the Court there made
clear, was limited to the less-invasive state action at issue in that case.

¶31           In State v. Huffman, 137 Ariz. 300, 302, 670 P.2d 405, 407 (App.
1983), the court of appeals held that no arrest is necessary for a blood draw
under the unconscious exception. The court applied Schmerber, holding
that a warrantless, nonconsensual blood draw from an unconscious DUI
suspect requires probable cause “and that the officer might reasonably
believe that he is confronted with an emergency so that the delay necessary
to obtain a warrant, under the circumstances, threatens destruction of the
evidence.” Id. at 302–03, 670 P.2d at 407–08. Far from specifically
authorizing a per se rule, Huffman properly interpreted Schmerber to require
an individualized, totality of the circumstances determination.



2 The dissent also cites Campbell v. Superior Ct., 106 Ariz. 542, 554, 479 P.2d
685, 696 (1971), for the proposition that this Court found “no merit” to a
constitutional challenge to the implied consent law. The Campbell Court’s
analysis is two sentences, and appears to comprise a facial challenge to the
whole statute, which we agree is not facially unconstitutional. Certainly it
does not remotely amount to the specific appellate court authorization
required to find good faith under Davis.


                                      12
                          STATE V. HAVATONE
                            Opinion of the Court




¶32           In State v. Flannigan, 194 Ariz. 150, 152 ¶ 9, 978 P.2d 127, 129
(App. 1998), police officers directed a blood draw from a DUI suspect
relying on “the department’s policy that exigent circumstances always exist
in vehicular aggravated assault and manslaughter cases.” Although the
case involved a different statute, the court of appeals analyzed Schmerber’s
exigent circumstances rule as we do here:

       In Schmerber, exigent circumstances existed because of the
       evanescent quality of alcohol and because the police
       reasonably believed that they did not have time to “seek out
       a magistrate and secure a warrant” before evidence of the
       defendant’s intoxication would be destroyed. Schmerber does
       not provide a blanket exception to the warrant requirement
       whenever a suspect is believed to be under the influence of
       alcohol or drugs. Rather, the evanescent quality of alcohol
       and drugs in a person’s body creates an exigency only if the
       evidence might disappear before the police can obtain a
       warrant.

Id. at 154 ¶ 20, 978 P.2d at 131. The court aptly concluded, “The officers’
rote application of the department’s untenable policy . . . violated
Flannigan’s right to be free from unreasonable search and seizure.” Id. at
155 ¶ 25, 978 P.2d at 132.

¶33           Here, the officer’s “rote application” of department policy to
obtain warrantless, nonconsensual blood draws from DUI suspects who are
transported to another state for medical treatment was inconsistent with
federal and state appellate precedents, and certainly was not “specifically
authorized.”

¶34          For those reasons, DPS’s practice of directing routine,
warrantless, nonconsensual blood draws from DUI suspects sent outside
the state for medical treatment was not objectively reasonable under
Arizona law at the time of the draw. Therefore, the trial and appeals courts
erred as a matter of Arizona law in concluding that the State satisfied its
burden of proving that the impermissible blood draw was justified by the
good-faith exception to the exclusionary rule.


                                     13
                           STATE V. HAVATONE
                             Opinion of the Court



¶35            The dissent asserts that our decision “risks ‘set[ting] the
criminal loose in the community without punishment.’” ¶ 63. As in any
case in which law enforcement tactics are measured against constitutional
protections, this may be the unavoidable result in some DUI cases. But
other evidence of impaired driving likely exists in such cases that support
continued prosecution for DUI. Here, evidence of probable cause, and
hence evidence potentially supporting a guilty verdict, was abundant
(defendant was the driver, witnesses saw the car driving erratically, the
officer smelled alcohol, and there were beer cans and a liquor bottle at the
accident scene). Moreover, A.R.S. § 28-1321(B) provides for suspension of
a driver’s license where a person arrested for DUI fails to submit to alcohol
testing. See Carrillo v. Houser, 224 Ariz. 463, 465–66 ¶ 13, 232 P.3d 1245,
1247–48 (2010); see also McNeely, 133 S. Ct. at 1565–67 (plurality) (noting such
sanctions and concluding that “the government’s interest in this area does
not justify departing from the warrant requirement without showing
exigent circumstances that make securing a warrant impractical in a
particular case”).

                                  IV.

¶36             The parties disagree whether Nevada or Arizona law applies
to this case. 3 The trial and appeals courts did not resolve the issue because
they concluded the good-faith exception would apply in either state. The
parties did not extensively address the issue in this Court. Hence, we
remand the case to the trial court to determine, in the first instance, whether
Arizona or Nevada law applies. If the court concludes that Nevada law
applies, it should determine whether the good-faith exception applies. If
the good-faith exception does not apply, the trial court must vacate the




3 Nevada’s implied consent law includes an unconscious clause directing a
mandatory blood draw, providing that where a DUI suspect “is dead or
unconscious, the officer shall direct that samples of blood from the person
[] be tested.” Nev. Rev. Stat. § 484C.160(3). The Nevada Supreme Court
recently held unconstitutional a different section of the implied consent law
because it did not allow a DUI suspect to withdraw consent. Byars v. State,
336 P.3d 939, 946 (Nev. 2014).


                                        14
                          STATE V. HAVATONE
                            Opinion of the Court



convictions and sentences, suppress the blood-draw evidence, and order a
new trial.

¶37           Accordingly, we vacate the court of appeals’ decision, reverse
the trial court’s decision on the motion to suppress, and remand to that
court for further proceedings consistent with this opinion.




                                    15
                      STATE V. HAVATONE
   VICE CHIEF JUSTICE PELANDER, joined by JUSTICE BRUTINEL,
              Dissented in part and Concurred in part


PELANDER, V.C.J., joined by BRUTINEL, J., concurring in part and
dissenting in part.

¶38            For almost fifty years, Arizona’s “implied consent” law has
specifically and expressly allowed law enforcement to obtain for testing a
blood sample of a DUI suspect who is unconscious. A.R.S. § 28-1321(C); see
former A.R.S. § 28-691(C) (1969 Ariz. Sess. Laws ch. 41, § 1). Pursuant to
that statutory authority, when the events in this case occurred in September
2012, police officers (and for that matter a conscientious police department
or its legal counsel) would have reasonably believed that they could obtain,
without a warrant, a blood sample from an unconscious DUI suspect. That
is particularly so when, as here, the DUI suspect’s serious injuries required
him to be airlifted to a hospital across state lines for emergency medical
treatment.

¶39            As of 2012, the warrantless blood draw from the unconscious
DUI suspect here was permissible because it was authorized under
Arizona’s implied consent law and was reasonable under the totality of the
circumstances that the trial court found based on the investigating officer’s
testimony. Contrary to the majority’s assertion, supra ¶ 20, under the law
in effect at that time, admissibility of the blood test results did not require
the state to show that the officer made “a case-specific determination
whether a warrant could be timely secured.” But even if the majority is
correct in concluding otherwise, and assuming that Arizona law applies,
the good-faith exception to the exclusionary rule should apply because the
blood draw was objectively reasonable and no legitimate purpose is served
by suppressing the blood evidence in this case.

¶40            Based on legal developments that occurred after September
2012, I agree (and the State concedes) that current law renders § 28-1321(C)
unconstitutional as applied to this case and that the blood draw from
Havatone would not comply with Fourth Amendment standards now. I
also agree that post-2012 cases support the rule of law the majority
announces regarding future application of the unconscious clause. Supra
¶¶ 17-18. But the majority asserts that “the State concedes that exigent
circumstances did not exist,” supra ¶ 17, when in fact the State expressly
qualified its “concession” as follows: “Under recent Fourth Amendment
decisions, [Havatone’s] warrantless blood draw was not justified by either


                                      16
                       STATE V. HAVATONE
    VICE CHIEF JUSTICE PELANDER, joined by JUSTICE BRUTINEL,
               Dissented in part and Concurred in part


the consent or exigency exceptions. But this was not so on the day officers
drew blood from an unconscious [Havatone].” 4 Thus, the State merely
agreed that “[the] blood draw was not reasonable under the exigent
circumstances exception, as understood today.”

¶41            The majority faults the investigating DPS officer for having
“followed DPS policy and training” in requesting the blood draw. Supra ¶
22. But the majority’s emphasis on “department practice,” id., a matter
barely touched on in the suppression hearing, disregards much of the
officer’s testimony and the trial court’s findings. And we of course must
view the facts in the light most favorable to sustaining the trial court’s
ruling. State v. Maciel, 240 Ariz. 46, 49 ¶ 9, 375 P.3d 938, 941 (2016).

¶42            It is quite clear that Officer M.P. accurately determined that
Havatone was driving under the influence of alcohol and caused the head-
on collision that seriously injured himself and others. See supra ¶¶ 4-5, 35.
Contrary to the majority’s suggestion that the officer “fail[ed] to take
individual circumstances into account,” supra ¶ 22, at the suppression
hearing Officer M.P. testified that “exigent circumstances” supported his
request for the blood draw based on the following factors that he identified:
a very “chaotic” accident scene that he was responsible for investigating;
the alcohol-related “serious collision” that resulted in severe injuries to
Havatone and others; and Havatone (the driver/DUI suspect) being
transported for emergency medical treatment out of state, where an
Arizona warrant would have no force or effect. That testimony hardly
suggests a disregard of circumstances warranting the officer’s blood-draw
request. Indeed, viewed in the light most favorable to sustaining the trial
court’s ruling, Officer M.P.’s testimony supported the court’s implicit
determination that “Schmerber’s emergency requirement” was satisfied.
Supra ¶ 27.

¶43          Based on the evidence presented at the suppression hearing




4  At oral argument in this Court, the State likewise consistently qualified
its concession in this same way and merely disclaimed any argument that
“under McNeely, this case would present exigent circumstances.”

                                     17
                      STATE V. HAVATONE
   VICE CHIEF JUSTICE PELANDER, joined by JUSTICE BRUTINEL,
              Dissented in part and Concurred in part


and specifically citing the factors to which Officer M.P. testified, the trial
court expressly found that “the totality of the circumstances” supported the
officer’s request for a warrantless blood draw. We should defer to the trial
court’s finding, which was supported by the record and applicable law in
effect at the time of the blood draw. See Ornelas v. United States, 517 U.S.
690, 699 (1996) (holding that “as a general matter determinations of
reasonable suspicion and probable cause should be reviewed de novo on
appeal,” but that appellate courts should “review findings of historical fact
only for clear error and . . . give due weight to inferences drawn from those
facts by resident judges and local law enforcement officers”); cf. Valley
Medical Specialists v. Farber, 194 Ariz. 363, 366-67 ¶ 11, 982 P.2d 1277, 1280-
81 (1999) (because “reasonableness is a fact-intensive inquiry that depends
on weighing the totality of the circumstances[,] . . . we will give substantial
deference both to the trial court’s findings of fact and its application of law
to fact”).

¶44           Assuming that Arizona law applies in this matter, I also
disagree with the majority’s conclusion that the good faith exception to the
exclusionary rule does not apply. Rather, I agree with the trial court and
the unanimous court of appeals that the seizure of Havatone’s blood sample
was objectively reasonable and that no legitimate purpose is served by
suppressing the blood evidence in this case. Therefore, the good faith
exception applies. Accordingly, I respectfully dissent from section III of the
majority’s opinion and its holding that under Arizona law evidence relating
to Havatone’s blood sample must be suppressed.

¶45           The exclusionary rule bars the prosecution from presenting
evidence obtained in violation of the Fourth Amendment in certain
circumstances. Davis v. United States, 564 U.S. 229, 231-32 (2011). The rule
is not required under the Fourth Amendment; instead, the Supreme Court
created the rule to “compel respect for the constitutional guaranty” of that
amendment. Id. at 236 (citation omitted). The rule itself is “not a personal
constitutional right” meant to protect the party whose Fourth Amendment
right was infringed, but rather its sole purpose is to deter future Fourth
Amendment violations. Id. at 236-37. “Whether the exclusionary sanction
is appropriately imposed in a particular case . . . is an issue separate from
the question whether the Fourth Amendment rights of the party seeking to
invoke the rule were violated by police conduct.” United States v. Leon, 468


                                      18
                      STATE V. HAVATONE
   VICE CHIEF JUSTICE PELANDER, joined by JUSTICE BRUTINEL,
              Dissented in part and Concurred in part


U.S. 897, 906 (1984).

¶46           The good faith exception to the exclusionary rule permits law
enforcement to reasonably rely on legislative enactments, Illinois v. Krull,
480 U.S. 340, 349-50, 358-60 (1987), and binding appellate precedent, Davis,
564 U.S. at 240-41. When performing a search pursuant to a legislative
enactment, “[u]nless [the] statute is clearly unconstitutional, an officer
cannot be expected to question the judgment of the legislature that passed
the law.” Krull, 480 U.S. at 349-50. Even when the previously accepted
application of a “statute is subsequently declared unconstitutional,”
exclusion of evidence obtained under the statute “will not deter future
Fourth Amendment violations.” Id. at 350. “Therefore, when 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.” State v. Valenzuela, 239 Ariz. 299, 309 ¶ 31, 371 P.3d
627, 637 (2016) (internal quotation marks and citation omitted); see also
A.R.S. § 13-3925 (codifying good-faith exception to the exclusionary rule).
The majority gives scant attention to Krull, a case that directly supports
application of the good faith exception here (as the court of appeals
recognized).

¶47           “Indiscriminate application of the exclusionary rule . . . may
well generate disrespect for the law and administration of justice.” Leon,
468 U.S. at 907. Only when the benefits of deterrence outweigh the social
costs, which will include the high cost of excluding reliable, trustworthy
evidence, should the rule operate. Davis, 564 U.S. at 237.

¶48           As noted above, law enforcement may reasonably rely on
statutory authority later declared unconstitutional, Krull, 480 U.S. at 349-50,
or on binding appellate precedent later overturned, Davis, 564 U.S. at 240-
41. Although either of these disjunctive factors is sufficient to support the
good faith exception, both exist here. DPS Officer M.P.’s request for
Nevada authorities to obtain a sample of Havatone’s blood was made
pursuant to, and in accordance with, Havatone’s implied consent under
A.R.S § 28-1321(C) and our interpretation of exigent circumstances in State
v. Cocio, 147 Ariz. 277, 286, 709 P.2d 1336, 1345 (1985). As of September
2012, § 28-1321(C) was presumed to be constitutional, State v. Thompson, 204
Ariz. 471, 474-75 ¶ 10, 65 P.3d 420, 423-24 (2003), and Cocio had not been


                                      19
                      STATE V. HAVATONE
   VICE CHIEF JUSTICE PELANDER, joined by JUSTICE BRUTINEL,
              Dissented in part and Concurred in part


overruled or questioned. Applying the exclusionary rule, therefore,
provides no deterrent effect justifying suppression of the BAC evidence in
this case.

¶49           The majority holds that “the unconscious clause [in § 28-
1321(C)] can be constitutionally applied only when case-specific exigent
circumstances prevent law enforcement officers from obtaining a warrant.”
Supra ¶ 17; see also id. ¶ 18 (“[A] nonconsensual blood draw from an
unconscious person is constitutionally permissible if, under the totality of
the circumstances, law enforcement officials reasonably determine that
they cannot obtain a warrant without significant delay that would
undermine the effectiveness of the testing.”). But as the majority implies,
supra ¶¶ 15-18, only cases decided by the United States Supreme Court and
this Court after the events in question here compel or support that
conclusion. See Missouri v. McNeely, 133 S. Ct. 1552, 1561 (2013) (concluding
that “[i]n those drunk-driving investigations where police officers can
reasonably obtain a warrant before a blood sample can be drawn without
significantly undermining the efficacy of the search, the Fourth
Amendment mandates that they do so”); State v. Butler, 232 Ariz. 84, 88 ¶ 18,
302 P.3d 609, 613 (2013) (holding that, “independent of § 28-1321, the Fourth
Amendment requires an arrestee’s consent to be voluntary to justify a
warrantless blood draw”).

¶50             Those recent cases cannot retroactively support a finding that
Officer M.P. exhibited “deliberate, reckless, or grossly negligent disregard
for Fourth Amendment rights” in ordering a blood sample pursuant to
then-valid § 28-1321(C). Davis, 564 U.S. at 238 (quoting Herring v. United
States, 555 U.S. 135, 144 (2009)). As the Court in Davis observed, the reasons
for and benefits of exclusion vary based on the culpability of law
enforcement, and absent deliberate, reckless, or grossly negligent violation
of Fourth Amendment rights, grounds for exclusion are weak “when the
police act with an objectively ‘reasonable good-faith belief’ that their
conduct is lawful.” Id. (quoting Leon, 468 U.S. at 909); see also Valenzuela,
239 Ariz. at 310 ¶ 35, 371 P.3d at 638 (applying Davis’s standard in finding
good faith reliance on statutory and case authority). Although the majority
rests its decision on alleged “recurring or systemic negligence,” supra ¶ 21,
the good faith exception clearly applies when, as here, law enforcement
reasonably relies on a facially and presumptively valid statute to govern its


                                     20
                      STATE V. HAVATONE
   VICE CHIEF JUSTICE PELANDER, joined by JUSTICE BRUTINEL,
              Dissented in part and Concurred in part


actions, Krull, 480 U.S. at 349-50, a principle the majority essentially ignores.

¶51            When the events in question occurred in September 2012, no
court had suggested, let alone concluded, that § 28-1321(C) was invalid or
otherwise did not authorize the officer’s conduct. In Campbell v. Superior
Court, we found “no merit” to the argument that Arizona’s implied consent
law (which at that time included the predecessor unconscious clause now
found in § 28-1321(C)) violates the Fourth Amendment. 106 Ariz. 542, 554,
479 P.2d 685, 697 (1971). More recently, we held solely “as a matter of
statutory interpretation,” not based on constitutional grounds, that
Arizona’s implied consent law “generally does not authorize law
enforcement officers to administer [a blood test] without a warrant unless
the arrestee expressly agrees to the test.” Carrillo v. Houser, 224 Ariz. 463,
463 ¶ 1, 467 ¶ 21, 232 P.3d 1245, 1245, 1249 (2010). But we expressly
remarked that the unconscious clause in § 28-1321(C) was “not at issue,”
and thus we did not address “circumstances in which subsection (C) . . .
may allow warrantless testing of persons incapable of refusing a test.” Id.
at 464 ¶ 2 n.2, 467 ¶ 21, 232 P.3d at 1246, 1249.

¶52          In short, as of September 2012, no Arizona court had
suggested that the continued validity of the unconscious clause was
dubious. Yet the majority unpersuasively suggests that, under the state of
the law at that time, the provisions of § 28-1321(C) “[were] such that a
reasonable officer should have known that the statute was
unconstitutional.” Supra ¶ 28 (quoting Krull, 480 U.S. at 355).

¶53           Contrary to the majority’s reasoning, supra ¶¶ 24-27,
Schmerber v. California, 384 U.S. 757 (1966), neither casts doubt on the pre-
McNeely validity of § 28-1321(C) nor negates application of the good faith
exception here. In its discussion of Schmerber, supra ¶¶ 24-25, the majority
omits a significant portion of the Court’s reasoning in finding that a
warrantless blood draw from a DUI suspect in that case did not violate the
Fourth Amendment:




                                       21
                      STATE V. HAVATONE
   VICE CHIEF JUSTICE PELANDER, joined by JUSTICE BRUTINEL,
              Dissented in part and Concurred in part



       The officer in the present case . . . might reasonably have
       believed that he was confronted with an emergency, in which
       the delay necessary to obtain a warrant, under the
       circumstances, threatened ‘the destruction of evidence[.]’ We
       are told that the percentage of alcohol in the blood begins to
       diminish shortly after drinking stops, as the body functions to
       eliminate it from the system. Particularly in a case such as
       this, where time had to be taken to bring the accused to a
       hospital and to investigate the scene of the accident, there was
       no time to seek out a magistrate and secure a warrant. Given
       these special facts, we conclude that the attempt to secure
       evidence of blood-alcohol content in this case was an
       appropriate incident to petitioner's arrest.

Schmerber, 384 U.S. at 770-71 (citation omitted). Given the similar
circumstances of this case (with the additional fact here that the injured DUI
suspect was transported out of state), the DPS officer likewise “might
reasonably have believed that he was confronted with an emergency” that
authorized the warrantless blood draw. Id.

¶54           Tellingly, the pertinent Arizona cases interpreting and
applying Schmerber do not support the majority’s analysis and conclusion,
but instead support application of the good faith exception. In Campbell,
this Court rejected a Fourth Amendment challenge to Arizona’s implied
consent law (including the unconscious clause) “in light of the holding in
Schmerber.” 106 Ariz. at 545, 554, 479 P.2d at 688, 697. Later, in Cocio, we
expounded in greater depth on our understanding of Schmerber:

       The United States Supreme Court in Schmerber held that a
       blood sample may be taken without a search warrant if it is
       taken in a medically approved manner and based on probable
       cause to believe the person is intoxicated. In such a situation
       exigent circumstances permit a warrantless seizure because,
       “. . . the percentage of alcohol in the blood begins to diminish
       shortly after drinking stops, as the body functions to eliminate
       it from the system.”



                                     22
                      STATE V. HAVATONE
   VICE CHIEF JUSTICE PELANDER, joined by JUSTICE BRUTINEL,
              Dissented in part and Concurred in part


147 Ariz. at 285-86, 709 P.2d at 1344-45 (quoting Schmerber, 384 U.S. at 770).

¶55            To authorize a warrantless blood draw under the medical
blood draw exception, A.R.S. § 28-1388(E) (former § 28-692(M)), Cocio
required the presence of “exigent circumstances.” 147 Ariz. at 286, 709 P.2d
at 1345. But we concluded that “exigent circumstances existed” merely
“because of the destructibility of the evidence.” Id. (citing Schmerber for the
proposition that “[t]he highly evanescent nature of alcohol in the
defendant’s blood stream guaranteed that the alcohol would dissipate over
a relatively short period of time”).           Based on that physiological
phenomenon alone, this Court thus recognized a per se exigency. Stated
differently, to establish exigency, the State was not required to show that
there was no time or opportunity to obtain a warrant. Again, that
additional requirement, first imposed by McNeely and now incorrectly
applied retroactively by the majority here, did not apply to this case. See
State v. Reyes, 238 Ariz. 575, 578-79 ¶ 19, 364 P.3d 1134, 1137-38 (App. 2015)
(noting that as of 2012, “Arizona courts had uniformly held that dissipation
of alcohol in blood was in itself a sufficient exigent circumstance for
purposes of the medical exception”) (citing Cocio and other cases).

¶56             The majority alternatively posits that the law on this point
“was, at most, unsettled” in September 2012. Supra ¶ 28. Again, I disagree.
Although Cocio did not address the unconscious clause, its finding of
exigent circumstances based solely on the “highly evanescent nature of
alcohol” in the blood and its rapid dissipation rate was not limited to the
medical blood draw context. 147 Ariz. at 286, 709 P.2d at 1345. In that
regard, consistent with Cocio, other courts also viewed Schmerber as broadly
establishing a per se exigency based on the dissipation factor alone. See
State v. Shriner, 751 N.W.2d 538, 547 & n.11 (Minn. 2008) (citing Cocio among
other cases that interpreted Schmerber “as concluding that the naturally
rapid dissipation of alcohol in the bloodstream creates an emergency that
justifies a warrantless blood draw”); State v. Blank, 90 P.3d 156, 164 n.1
(Alaska 2004) (Matthew, J., dissenting) (same); People v. Harrison, 58 N.E.3d
623, 628 (Ill. Ct. App. 2016) (same); see also People v. Harris, 184 Cal.Rptr.3d
198, 205 (Cal. App. 2015) (noting that before McNeely, “California courts
uniformly interpreted Schmerber as permitting forced blood draws based
solely on probable cause of DUI because the natural dissipation of alcohol
or drugs in the blood was itself an exigent circumstance”).


                                      23
                      STATE V. HAVATONE
   VICE CHIEF JUSTICE PELANDER, joined by JUSTICE BRUTINEL,
              Dissented in part and Concurred in part



¶57             The same exigency we recognized in Cocio, the natural
dissipation of alcohol, would also be an exigency when, as here, a suspect
is unconscious. And as we acknowledged in our recent opinion regarding
the medical blood draw exception (A.R.S. § 28-1388(E)), the 2013 McNeely
case requires us to disavow Cocio’s statement that “the natural dissipation
of alcohol in the bloodstream itself establishes a per se exigency that
authorizes a warrantless blood test,” and to instead announce that “in future
cases, consistent with McNeely, the state must establish exigency by showing
that under circumstances specific to those cases, it was impractical to obtain
a warrant.” State v. Nissley, 241 Ariz. 327, 330-31 ¶¶ 11-12, 387 P.3d 1256,
1259-60 (2017) (emphasis added). Although I agree that, post-McNeely, “the
unconscious clause can be constitutionally applied only when case-specific
exigent circumstances prevent law enforcement officers from obtaining a
warrant,” supra ¶ 17, no such showing was required as of 2012.

¶58            The majority’s reliance on two court of appeals cases is even
more curious. Supra ¶¶ 31-32. The majority correctly observes that the
court in State v. Huffman “applied Schmerber,” supra ¶ 31, but disregards the
Huffman court’s statement that under Schmerber the natural dissipation of
alcohol in blood justified officers in taking a blood sample from the
unconscious DUI suspect pursuant to the implied consent statute’s
unconscious clause. 137 Ariz. 300, 303, 670 P.2d 405, 408 (App. 1983). The
court thus affirmed the denial of Huffman’s motion to suppress even absent
any other evidence of exigency or any showing that the officer could not
have obtained a warrant.

¶59           State v. Flannigan, on which the majority also relies, supra ¶ 32,
is inapposite. 194 Ariz. 150, 978 P.2d 127 (App. 1998). That case involved a
driver’s methamphetamine (not alcohol) use and negligent-homicide
conviction under Title 13, not DUI charges under Title 28; and Flannigan did
not even “involve an application of the Arizona implied consent statute.”
Id. at 152-53 ¶ 13, 978 P.2d at 129-30. Nor did the case involve either the
unconscious clause at issue here or the medical blood draw exception,
which the court recognized “would have entitled the police to receive a
sample of [the suspect’s] blood regardless of his consent.” Id. at 153 ¶ 14,
978 P.2d at 130. As our court of appeals recently and correctly observed,
“Flannigan did not signal a shift away from Cocio” and “did not vitiate Cocio,


                                      24
                      STATE V. HAVATONE
   VICE CHIEF JUSTICE PELANDER, joined by JUSTICE BRUTINEL,
              Dissented in part and Concurred in part


nor could it.” Reyes, 238 Ariz. at 578 ¶ 18, 364 P.3d at 1137. To the extent
Flannigan’s reading of Schmerber deviated from Cocio, which the Flannigan
court did not even cite, Cocio controls. Lind v. Superior Court, 191 Ariz. 233,
237 ¶ 20, 954 P.2d 1058, 1062 (App. 1998) (recognizing that court of appeals
is “bound by our supreme court’s determinations”).

¶60            Because the seizure of a blood sample from Havatone while
he was unconscious and receiving emergency medical treatment in another
state was specifically authorized by a longstanding statute that no court had
even questioned, much less ruled invalid, it matters not that Officer M.P.’s
actions were taken pursuant to his DPS training or department policy. That
training and policy were permissible under Arizona law, which Officer
M.P. had no reason to question. Just as the officer had no reason to question
the constitutionality of the statute based on then-existing law, he likewise
had no reason to question the validity of the department’s policy. Whether
Officer M.P. “might reasonably have believed that he was confronted with
an emergency” that authorized the warrantless blood draw under the
statute, or under the department’s policy, should not matter. Schmerber, 384
U.S. at 770; see State v. Dennis, 300 P.3d 81, 83 (Kan. 2013) (holding that “it
was unnecessary for the officer to specifically articulate [a state statute] as
authority for the [warrantless] search because application of a good-faith
exception to the exclusionary rule is not governed by a subjective inquiry.
The question is whether an objectively reasonable officer could rely on [the
statute].”). The majority does not persuasively establish otherwise.

¶61            “[T]he ultimate touchstone of the Fourth Amendment is
‘reasonableness.’” Brigham City v. Stuart, 547 U.S. 398, 403 (2006). “An
action is ‘reasonable’ under the Fourth Amendment, regardless of the
individual officer’s state of mind, ‘as long as the circumstances, viewed
objectively, justify [the] action.’” Id. at 404 (quoting Scott v. United States,
436 U.S. 128, 138 (1978)) (emphasis and alteration in Stuart); cf. Heien v.
North Carolina, 135 S. Ct. 530, 534, 539 (holding that an officer’s mistake of
law can give rise to the reasonable suspicion necessary to uphold a seizure
under the Fourth Amendment and noting that in determining whether a
mistake of fact or law was objectively reasonable, “[w]e do not examine the
subjective understanding of the particular officer involved”).

¶62           Applying that standard here, contrary to the majority’s


                                      25
                      STATE V. HAVATONE
   VICE CHIEF JUSTICE PELANDER, joined by JUSTICE BRUTINEL,
              Dissented in part and Concurred in part


conclusion, Officer M.P’s request for Nevada authorities to obtain a sample
of Havatone’s blood indeed was “objectively reasonable under Arizona law
at the time of the draw.” Supra ¶ 34. The officer certainly did not
“deliberately, recklessly, or with gross negligence” violate Havatone’s
Fourth Amendment rights in requesting the blood draw. Davis, 346 U.S. at
240. Therefore, given the “nonculpable, innocent police conduct” here, id.,
the good faith exception to the exclusionary rule applies. See Valenzuela, 239
Ariz. at 310 ¶ 35, 371 P.3d at 638 (finding good faith exception applied when
officer “did not ‘deliberately, recklessly, or with gross negligence’ conduct
the search in violation of the Fourth Amendment, but instead acted with
‘an objectively reasonable good-faith belief’ that the admonition was
lawful”) (quoting Davis, 131 S. Ct. at 2427-28); Reyes, 238 Ariz. at 579 ¶ 19,
364 P.3d at 1138 (finding good faith exception applied, pre-McNeely, when
officer reasonably relied “on the evanescent nature of alcohol in [the DUI
suspect’s] blood in requesting [in 2012] the blood sample with no warrant”);
see also State v. Edwards, 853 N.W.2d 246, 254 ¶ 19 (S.D. 2014) (finding good
faith exception applied to officer’s warrantless, pre-McNeely blood draw in
2013 when state’s case law had held “that the dissipation of alcohol in blood
was a per se exigent circumstance sufficient by itself to justify conducting a
blood test without a warrant”); State v. Meitler, 347 P.3d 670, 676 (Kan. App.
2015) (applying good faith exception when officer obtained warrantless
blood draw from a hospitalized, unconscious DUI suspect in 2012 based on
state’s implied consent law later declared unconstitutional).

¶63           Through its revisionist reinterpretation of prior Arizona
cases, the majority imposes an unrealistic and unreasonable expectation on
police officers to divine, based on subsequent case law, that a
presumptively valid state statute does not actually allow or mean what it
says. But law enforcement officers are not legal technicians and should not
be expected to anticipate or predict a future change in our case law.
Exclusion of the BAC evidence here “does not result in appreciable
deterrence” and thus “is unwarranted.” Arizona v. Evans, 514 U.S. 1, 11
(1995) (internal quotation marks omitted). Under these circumstances,
depriving the prosecution of that evidence necessarily “suppress[es] the
truth” and risks “set[ting] the criminal loose in the community without
punishment.” Davis, 564 U.S. at 237 (citation omitted).




                                     26
