                                 IN THE

    SUPREME COURT OF THE STATE OF ARIZONA
                            JASON S. BROWN,
                               Petitioner,

                                    v.

THE HONORABLE CRANE MCCLENNEN, JUDGE OF SUPERIOR COURT OF THE
     STATE OF ARIZONA, IN AND FOR THE COUNTY OF MARICOPA,
                        Respondent Judge,

                          STATE OF ARIZONA,
                          Real Party in Interest.

                          No. CV-15-0042-PR
                          Filed April 26, 2016

               Appeal from the North Mesa Justice Court
                         No. JC2013-427663
             REVERSED IN PART, REMANDED IN PART

       Special Action from the Superior Court in Maricopa County
                The Honorable Crane McClennen, Judge
                          No. LC2013-427663
                               VACATED

              Order of the Court of Appeals, Division One
                           Filed Dec. 30, 2014

COUNSEL:

Mark F. Willimann (argued), The Law Office of Mark F. Willimann, LLC,
Tucson, Attorneys for Jason S. Brown

William G. Montgomery, Maricopa County Attorney, Amanda M. Parker
(argued), Deputy County Attorney, Phoenix, Attorneys for State of Arizona

Bruce Washburn, Scottsdale City Attorney, Ken Flint, Assistant City
Prosecutor, Scottsdale, Attorneys for Amicus Curiae City of Scottsdale
                     BROWN V. MCCLENNEN (STATE)
                         Opinion of the Court



JUSTICE TIMMER authored the opinion of the Court, in which VICE
CHIEF JUSTICE PELANDER and JUSTICES BRUTINEL and BERCH
(RETIRED) joined, and CHIEF JUSTICE BALES concurred.

JUSTICE TIMMER, opinion of the Court:

¶1             Although the Fourth Amendment generally prohibits
warrantless searches, they are permitted if there is free and voluntary
consent to search. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); State
v. Butler, 232 Ariz. 84, 87 ¶ 13, 302 P.3d 609, 612 (2013). Consent cannot be
given “freely and voluntarily” if the subject of a search merely acquiesces
to a claim of lawful authority. Bumper v. North Carolina, 391 U.S. 543, 548–
49 (1968).

¶2            Arizona’s implied consent law for watercraft operators
provides that “[a]ny person who operates a motorized watercraft that is
underway within this state gives consent . . . to a test or tests of the person’s
blood, breath, urine or other bodily substance” if arrested for operating a
motorized watercraft while under the influence of alcohol or drugs
(“OUI”). A.R.S. § 5-395.03(A). Nevertheless, the statute requires that an
arrestee “unequivocally manifest assent to the testing by words or conduct”
before officers can conduct warrantless testing. Cf. Carrillo v. Houser, 224
Ariz. 463, 467 ¶ 19, 232 P.3d 1245, 1249 (2010) (interpreting the implied
consent law for motorists). The issue here is whether, for Fourth
Amendment purposes, an operator arrested for OUI voluntarily consented
to giving samples of his blood after a deputy sheriff advised him that
“Arizona law requires you to submit” to breath, blood, or other bodily
substance tests chosen by law enforcement.

¶3            In a concurrently issued opinion, we hold that showing only
that consent was given by a drunk-driving arrestee in response to an almost
identical admonition fails to prove that an arrestee’s consent was freely and
voluntarily given. State v. Valenzuela, CR-15-0222-PR, slip op. at 2 ¶ 2 (Ariz.
Apr. 26, 2016). We adopt the reasoning in Valenzuela and reach the same
conclusion here.

                             I. BACKGROUND


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                    BROWN V. MCCLENNEN (STATE)
                        Opinion of the Court

¶4             In reviewing the denial of a defendant’s motion to suppress,
we consider only “evidence presented at the suppression hearing and view
the facts in the light most favorable to sustaining the trial court’s ruling.”
State v. Hausner, 230 Ariz. 60, 70 ¶ 23, 280 P.3d 604, 614 (2012).

¶5             In June 2013, Jason Brown was operating a boat on Apache
Lake when a uniformed deputy sheriff stopped him for illegally towing a
water skier after sundown. The deputy smelled alcohol and Brown
admitted he had been drinking. After conducting field sobriety tests, the
deputy arrested Brown for OUI and transported him to an aid station used
by the sheriff’s office.

¶6          At that station, the deputy directed Brown to a phlebotomist
chair and read to him from an “OUI Admonishment” form, which
provided:

       Arizona [l]aw requires you to submit and successfully
       complete a test of breath, blood or other bodily substance as
       chosen by the law enforcement officer to determine alcohol
       concentration or drug content. A law enforcement officer
       may require you to submit to one or more test[s]. You are
       required to successfully complete each of the tests. Will you
       submit to the specified tests?

Brown did not ask any questions about the admonition and agreed to
submit to a blood draw, which the deputy performed. Brown also signed
a form that stated, “I have verbally and expressly granted permission for
breath, blood or other bodily substances to be taken.” After subsequent
testing showed that Brown had an alcohol concentration (“AC”) of .199, the
State charged him with two counts of OUI and one count of extreme OUI.
See A.R.S. §§ 5-395(A), -397(A).

¶7            Brown moved to suppress the test results. He argued he did
not voluntarily consent to the test, and the warrantless search therefore
violated his Fourth Amendment rights.           He also challenged the
constitutionality of § 5-395(L), which provides that a person commits a
misdemeanor by refusing an officer’s request for a sample of blood, urine,
or other bodily substance already collected from an OUI suspect.



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                    BROWN V. MCCLENNEN (STATE)
                        Opinion of the Court

¶8             The justice court conducted a suppression hearing, at which
the deputy and Brown testified. The deputy testified that he neither
informed Brown that he had the right to withhold consent nor told him that
the deputy would seek a search warrant if Brown refused consent.
According to Brown, after the deputy read the admonition, Brown thought
he “didn’t have a choice” and “had to give blood.” He was “never told any
other option except [that] the [s]tate [l]aw required [him] to give blood at
that point.” The record does not reflect whether the deputy told Brown
about the administrative consequences for refusing consent. The court
denied Brown’s motion to suppress, reasoning that his consent was
voluntary because the admonition provided a choice whether to submit to
testing, and nothing showed that his will was overborne. The court also
ruled that § 5-395(L) was constitutional. A jury subsequently found Brown
guilty on all charges, and the court imposed sentences.

¶9            The superior court, acting in its appellate capacity, affirmed.
The court of appeals declined to accept jurisdiction of Brown’s petition for
special action review. We granted his petition for review because it
presents a recurring legal question of statewide importance. We have
jurisdiction pursuant to article 6, section 5, of the Arizona Constitution and
A.R.S. § 12-120.24.

                             II. DISCUSSION

¶10           We review the denial of a motion to suppress evidence for
abuse of discretion, considering the facts in the light most favorable to
sustaining the ruling. State v. Wilson, 237 Ariz. 296, 298 ¶ 7, 350 P.3d 800,
802 (2015). “An error of law committed in reaching a discretionary
conclusion may, however, constitute an abuse of discretion.” Busso-
Estopellan v. Mroz, 238 Ariz. 553, 554 ¶ 5, 364 P.3d 472, 473 (2015) (citation
omitted).

              A. Fourth Amendment violation

¶11           Brown argues that, under Bumper, his consent to providing a
blood sample must be deemed involuntary because he consented only after
the deputy said that Arizona law required him to submit to testing,
prompting him to acquiesce to an assertion of lawful authority. The State
responds that Bumper is distinguishable because the admonition here
correctly stated Arizona law, and Brown could have chosen to revoke the

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                     BROWN V. MCCLENNEN (STATE)
                         Opinion of the Court

consent supplied by the implied consent law. It also argues we should defer
to the justice court’s ruling that the totality of the circumstances
demonstrated that Brown freely and voluntarily gave consent.

¶12            We addressed similar arguments in Valenzuela, which
concerned a nearly identical admonition given to an arrestee suspected of
driving under the influence of alcohol or drugs (“DUI”). See Valenzuela, CR-
15-0222-PR, slip op. at 4 ¶ 5. For the reasons explained there, we hold that
the State failed to prove by a preponderance of the evidence that Brown’s
consent was voluntary. By telling Brown that Arizona law required him to
submit to and complete testing, an admonition that does not mirror the
implied consent statute, the deputy invoked lawful authority and
effectively proclaimed that Brown had no right to resist the search. See id.
at 4–12 ¶¶ 10–24. At the time of the admonition, Brown had been arrested,
taken to an aid station, and seated in a phlebotomy chair. Nothing in the
record suggests that the deputy retracted the assertion of lawful authority
to conduct a warrantless search or that other circumstances existed to dispel
the coerciveness of the admonition before Brown granted consent.
Consequently, Brown’s “consent,” like the arrestee’s consent in Valenzuela,
was involuntary, and the justice court erred by finding otherwise and then
denying the motion to suppress the test results on that basis. See id. at 10–
11 ¶ 22; Davis v. United States, 564 U.S. 229, 131 S. Ct. 2419, 2423 (2011)
(stating that the exclusionary rule “bars the prosecution from introducing
evidence obtained by way of a Fourth Amendment violation”).

              B. Application of the exclusionary rule

¶13             The State alternatively argues, as it did in the justice court,
that the trial court properly denied the motion to suppress because the
inevitable discovery exception to the exclusionary rule applies here. Cf.
State v. Roseberry, 237 Ariz. 507, 508 ¶ 7, 353 P.3d 847, 848 (2015) (“We will
affirm a trial court’s decision if it is legally correct for any reason.”). Under
that exception, a court can admit illegally obtained physical evidence in
appropriate circumstances if the state proves by a preponderance of the
evidence that the disputed evidence inevitably would have been seized by
lawful means. State v. Ault, 150 Ariz. 459, 465, 724 P.2d 545, 551 (1986). But
see id. (“We choose not to allow the inevitable discovery doctrine to reach
into homes of citizens in the factual situation before us.”). The State
contends that the exception applies because if Brown had refused consent,


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                    BROWN V. MCCLENNEN (STATE)
                        Opinion of the Court

the deputy would have obtained a search warrant and legally drawn
Brown’s blood.

¶14            The State’s view of the inevitable discovery exception would
swallow the rule. The exception does not turn on whether the evidence
would have been discovered had the deputy acted lawfully in the first
place. See State v. Davolt, 207 Ariz. 191, 204 ¶ 37, 84 P.3d 456, 469 (2004)
(“The State cannot claim inevitable discovery and thereupon be excused
from all constitutional requirements. Such a claim amounts to the
unacceptable assertion that police would have done it right had they not
done it wrong.”); see also United States v. Echegoyen, 799 F.2d 1271, 1280 n.7
(9th Cir. 1986) (rejecting application of the inevitable discovery exception
because “to excuse the failure to obtain a warrant merely because the
officers had probable cause and could have inevitably obtained a warrant
would completely obviate the warrant requirement of the fourth
amendment”). Rather, the exception applies if the evidence would have
been lawfully discovered despite the unlawful behavior and independent
of it. See, e.g., Nix v. Williams, 467 U.S. 431, 449–50 (1984) (applying
exception after an unlawful confession led police to victim’s body because
“volunteer search teams would have resumed the search had [defendant]
not earlier led the police to the body and the body inevitably would have
been found”); State v. Jones, 185 Ariz. 471, 481, 917 P.2d 200, 210 (1996)
(holding that despite warrantless search of a car, police inevitably would
have found contents during subsequent inventory search); State v. Lamb, 116
Ariz. 134, 138, 568 P.2d 1032, 1036 (1977) (concluding that evidence obtained
in illegal pat-down search was admissible because defendant would have
been arrested on grounds independent of the search and the evidence
would have inevitably been discovered during a lawful search incident to
arrest).

¶15          The sheriff’s office would not have inevitably obtained
Brown’s blood sample by lawful, independent means. It could only have
done so by means of a search warrant. But because the inevitable discovery
exception cannot excuse the failure to secure a warrant in the first place, the
exclusionary rule applies. Consequently, we cannot uphold the trial court’s
ruling under the inevitable discovery exception to the exclusionary rule.

¶16           The State also argues that we should apply the good-faith
exception to the exclusionary rule to uphold the trial court’s ruling. See
Davis, 564 U.S. 229, 131 S. Ct. at 2429 (“An officer who conducts a search in

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                    BROWN V. MCCLENNEN (STATE)
                        Opinion of the Court

reliance on binding appellate precedent does no more than ‘ac[t] as a
reasonable officer would and should act’ under the circumstances. . . . The
deterrent effect of exclusion in such a case can only be to discourage the
officer from ‘do[ing] his duty.’”) (internal quotation marks and citations
omitted). We applied the good-faith exception in Valenzuela to hold that
suppression of blood and breath test results there was unwarranted.
Valenzuela, CR-15-0222-PR, slip op. at 15 ¶ 32. But unlike the situation in
Valenzuela, the State here waived this argument by failing to raise it until
oral argument before this Court. See State v. Glassel, 211 Ariz. 33, 57 ¶ 101
n.17, 116 P.3d 1193, 1217 n.17 (2005) (holding that defendant waived issues
by not raising them before trial or appellate courts).

¶17           In sum, the State has not demonstrated that an exception to
the exclusionary rule applies here to justify the trial court’s denial of
Brown’s motion to suppress. We therefore reverse Brown’s convictions and
sentences for committing OUI under §§ 5-395(A)(2) and -397(A), which
required proof of Brown’s AC. Brown’s conviction for committing OUI
under § 5-395(A)(1) does not depend on the AC evidence. Because we do
not have the trial record before us, we remand to the justice court to
determine whether admission of the AC evidence was harmless error as to
that conviction. See Davolt, 207 Ariz. at 205 ¶ 39, 84 P.3d at 470 (applying
harmless error review to an erroneous denial of a motion to suppress).

              C. Constitutionality of A.R.S. § 5-395(L)

¶18            Brown argues that § 5-395(L) violates the Fourth
Amendment and is unconstitutionally vague and overbroad. The statute
provides that if a law enforcement officer has probable cause to believe that
a person committed OUI and a sample of blood, urine, or other bodily
substance has been taken from that person for any reason, a sample must
be provided to the officer upon request. “A person who fails to comply
with this subsection is guilty of a class 1 misdemeanor.” A.R.S. § 5-395(L).
This provision is known as the “medical purposes exception” and mirrors
A.R.S. § 28-1388(E), which is applicable to DUIs. See Carrillo, 224 Ariz. at
466 ¶ 17, 232 P.3d at 1248.

¶19           Generally, only a person injured by a statute can challenge its
constitutionality. State v. Powers, 117 Ariz. 220, 225, 571 P.2d 1016, 1021
(1977). The State did not charge Brown under § 5-395(L), and the deputy
did not invoke this statute to induce Brown’s consent or obtain the blood

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                   BROWN V. MCCLENNEN (STATE)
                       Opinion of the Court

sample. Nor does Brown argue that § 5-395(L), or any other law, makes it
a crime for an operator to refuse consent under the implied consent law.1
Because § 5-395(L) is inapplicable and Brown lacks standing to challenge it,
we do not address his arguments.

                           III. CONCLUSION

¶20            We reverse Brown’s convictions and resulting sentences for
committing OUI under §§ 5-395(A)(2) and -397(A). We remand to the
justice court to determine if admission of AC evidence was harmless error
concerning Brown’s conviction for OUI under § 5-395(A)(1). Finally, we
vacate the superior court’s judgment.




1
 The Supreme Court is currently considering whether, in the absence of a
warrant, a state may criminalize a person’s refusal to submit to a test to
detect a person’s AC. See Bernard v. Minnesota, 136 S. Ct. 615 (2015);
Birchfield v. North Dakota, 136 S. Ct. 614 (2015).
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                      BROWN V. MCCLENNEN (STATE)
                          Opinion of the Court

Bales, C.J., concurring.

¶21           For the reasons noted in my separate opinion in State v.
Valenzuela, CR-15-0222-PR, ¶¶ 38-51 (Ariz. Apr. 26, 2016), I agree that
Brown did not voluntarily consent to the search; I otherwise concur in the
majority’s opinion here.




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