                     SUPREME COURT OF ARIZONA
                              En Banc

THE STATE OF ARIZONA,             )   Arizona Supreme Court
                                  )   No. CR-11-0180-PR
                        Appellee, )
                                  )   Court of Appeals
                 v.               )   Division Two
                                  )   No. 2 CA-CR 10-0106
NELSON IVAN BOTEO-FLORES,         )
                                  )   Pima County
                       Appellant. )   Superior Court
                                  )   No. CR20092575002
                                  )
                                  )
                                  )   O P I N I O N
__________________________________)


          Appeal from the Superior Court in Pima County
              The Honorable Terry L. Chandler, Judge
________________________________________________________________

     Memorandum Decision of the Court of Appeals Division Two
                        Filed Apr. 12, 2011

                      VACATED AND REMANDED
________________________________________________________________


THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL                   Phoenix
     By   Kent E. Cattani, Chief Counsel
          Criminal Appeals/Capital Litigation
          Amy Thorson, Assistant Attorney General             Tucson
Attorneys for State of Arizona

ROBERT J. HIRSH, PIMA COUNTY PUBLIC DEFENDER              Tucson
     By   Lisa M. Hise, Deputy Public Defender
Attorney for Nelson Ivan Boteo-Flores
________________________________________________________________

B R U T I N E L, Justice

¶1        Nelson Boteo-Flores was detained by police during a

stolen vehicle investigation.   We consider here whether a lawful
investigative stop had become a de facto arrest before Boteo-

Flores confessed to the crime.                                           Based on the totality of the

circumstances, we find a de facto arrest.

                                                  I. FACTS AND PROCEDURAL HISTORY

¶2                           Tucson police officers went to an apartment complex

and          saw           a       black               pickup   truck   matching   the   description   of   a

stolen vehicle.1                                     The officers took up surveillance positions to

watch the truck and the apartment complex driveway.

¶3                           A maroon car pulled into the driveway of the complex.

Its lone occupant was the driver, who was talking on a cell

phone and then used binoculars to look up and down the street a

few times before driving away.                                            A few minutes later the car

returned, this time with three occupants, who the officer could

not identify.                                The car drove to the back of the complex and out

of sight.

¶4                           Several minutes later, Boteo-Flores walked down the

driveway, stood at the edge of the street, and looked up and

down the street several times.                                           The person who had driven the

car then drove the black pickup truck from the complex.                                                As he

approached the street, the driver slowed and shouted to Boteo-

Flores, who did not respond.                                            All but one of the surveilling

officers unsuccessfully pursued the truck; it was later found
                                                            
1
     We consider only the evidence presented at the suppression
hearing. State v. Blackmore, 186 Ariz. 630, 631, 925 P.2d 1347,
1348 (1996).
                               2
unoccupied.

¶5        While the pursuit was underway, the remaining officer

approached Boteo-Flores.        Because there was at least one other

person unaccounted for from the maroon car and the officer did

not know if Boteo-Flores was armed, the officer handcuffed him.

He did not frisk Boteo-Flores or ask him if he had a weapon.

¶6        After   handcuffing     Boteo-Flores,     the   officer    advised

him of his Miranda rights and began questioning him.                 Shortly

thereafter, a police unit returned and the officers called an

auto theft detective to assist with the investigation.                Boteo-

Flores was left handcuffed and standing by a police car for at

least fifteen minutes, until the detective arrived.            The record

does not reveal what the other officers were doing during this

time or why Boteo-Flores remained handcuffed.

¶7        After   arriving,     the     detective   was   briefed    by    the

officers at the scene for another fifteen minutes.                   He then

advised   Boteo-Flores     of     his     Miranda    rights    and        began

interviewing him.   The detective arrested Boteo-Flores based on

his admissions during the interview.

¶8        Boteo-Flores was indicted for facilitating the theft

of a means of transportation, a class six felony.             He moved to

suppress his statements, arguing that his initial detention was

not supported by reasonable suspicion and, alternatively, that

the initial detention had become a de facto arrest unsupported
                                      3
by     probable    cause     before       he    was   interrogated.         The     State

countered that reasonable suspicion supported the stop and that,

although there was no probable cause to arrest until he made

incriminating statements, the detention never became a de facto

arrest.     After an evidentiary hearing, the trial court denied

the motion.         A jury found Boteo-Flores guilty, and the trial

court sentenced him to prison for the presumptive term of 1.75

years.

¶9           The    court       of    appeals      affirmed     the    conviction       and

sentence.         State    v.     Boteo-Flores,       2    CA-CR     10-0106,    2011    WL

1379805 (Ariz. App. Apr. 12, 2011) (mem. decision).                             The court

determined        that    the     record       supported      “the    [trial]     court’s

finding that the officer had a reasonable, articulable suspicion

that Boteo-Flores was involved in criminal activity.”                           Id. at *2

¶ 8.     Although the court deemed it a “close question” whether a

de facto arrest had thereafter occurred, it concluded that the

trial “court did not abuse its discretion in determining Boteo-

Flores    was     not     under      arrest”       because    “[t]he    officer     acted

reasonably to protect his own safety and to prevent Boteo-Flores

from    fleeing,     and    he       diligently     pursued    the     purpose    of    the

stop.”     Id. at *3 ¶ 12.

¶10          We    granted       review    to      consider    relevant    factors       in

determining when a lawful detention becomes a de facto arrest,

an issue of statewide importance.                   We have jurisdiction pursuant
                                               4
to    Article      6,    Section       5(3)       of   the        Arizona       Constitution       and

A.R.S. § 12–120.24 (2003).

                                          II. DISCUSSION

¶11            Police officers may briefly detain an individual who

they    have       reasonable        suspicion         to    believe        is    involved     in    a

crime.       Terry v. Ohio, 392 U.S. 1, 27 (1968).                               In assessing the

reasonableness of a                 Terry    stop, we examine “(1) whether the

facts       warranted         the     intrusion         on        the     individual’s       Fourth

Amendment rights, and (2) whether the scope of the intrusion was

reasonably         related      to    the     circumstances              which     justified       the

interference in the first place.”                            State v. Jarzab, 123 Ariz.

308, 310, 599 P.2d 761, 763 (1979) (internal citation omitted);

see Terry, 392 U.S. at 20.                        A valid Terry stop, however, can

later become a de facto arrest.                             See State v. Blackmore, 186

Ariz. 630, 633-34, 925 P.2d 1347, 1350-51 (1996).                                    “Whether an

illegal arrest occurred is a mixed question of fact and law”

that we review de novo.                Id. at 632, 925 P.2d at 1349.

¶12            Boteo-Flores           first       argues      that        the     officer    lacked

reasonable         suspicion         to     detain      him.             Reasonable      suspicion

requires “a particularized and objective basis for suspecting

that    a    person      is     engaged      in    criminal             activity.”         State    v.

O’Meara,       198      Ariz.       294,    295    ¶ 7,       9    P.3d     325,     326    (2000).

Officers cannot act on a mere hunch, State v. Richcreek, 187

Ariz.       501,    505,      930    P.2d     1304,         1308    (1997),        but   seemingly
                                                   5
innocent behavior can form the basis for reasonable suspicion if

an officer, based on training and experience, can “perceive and

articulate meaning in given conduct[,] which would be wholly

innocent to the untrained observer.”                         Brown v. Texas, 443 U.S.

47, 52 n.2 (1979).          The totality of the circumstances, not each

factor    in    isolation,       determines           whether       reasonable          suspicion

exists.        See    United    States       v.      Arvizu,       534    U.S.    266,       274-75

(2002)     (noting       that        Terry        forbids       a        “divide-and-conquer

analysis”); O’Meara, 198 Ariz. at 296 ¶ 10, 9 P.3d at 327.

¶13            We agree with the courts below that the officer had

reasonable      suspicion       to    stop    Boteo-Flores.                The    officer      had

reliable       information      that        the      truck     was       stolen.         He    saw

suspicious behavior by the car’s driver, who later drove off in

the   stolen      truck.         The       officer’s         suspicions          were     further

justifiably aroused by the timing of Boteo-Flores’s arrival, his

actions, and the truck driver’s shouting to him.                                  The officer

testified       that    based        on    his       training       and     experience,         he

suspected Boteo-Flores was acting as a lookout.                                  Because this

suspicion        was     reasonable           given          the     totality           of     the

circumstances, Boteo-Flores’s initial detention was legal.                                    See,

e.g., Terry, 392 U.S. at 5-6, 28.

¶14            What    happened           subsequently,            however,       presents       a

different question.             Although “[t]here is no bright line that

distinguishes a valid Terry stop” from a de facto arrest, “Terry
                                                 6
stops              must              be         tailored             to    fit    the    exigencies        of   particular

situations.”                             United States v. Pontoo, 666 F.3d 20, 30 (1st Cir.

2011).                       “[W]hether                        the    scope       of    an    investigatory         stop    is

reasonable demands careful consideration of the totality of the

circumstances.”2                                        Id.          “[A]n investigative detention must be

temporary and last no longer than is necessary to effectuate the

purpose of the stop.”                                                Florida v. Royer, 460 U.S. 491, 500

(1983) (plurality opinion).

¶15                          United                   States          v.    Sharpe,          470   U.S.     675      (1985),

clarified that there is no rigid time limit for a Terry stop and

the appropriate query is “whether the police diligently pursued

a means of investigation that was likely to confirm or dispel

their suspicions quickly, during which time it was necessary to

detain the defendant.”                                           Id. at 686.            The Court cautioned that in

assessing                       the            reasonableness                of    a     detention,        courts    should

“consider whether the police are acting in a swiftly developing

situation, and in such cases the court should not indulge in

unrealistic                           second-guessing.”                           Id.        It    noted    that      “[t]he

question                     is          not            simply        whether      some       other   alternative          was
                                                            
2
     Although we have suggested in the past that the test is
“whether a reasonable person, innocent of any crime, would
reasonably believe that he was being arrested,” State v.
Winegar, 147 Ariz. 440, 448, 711 P.2d 579, 587 (1985), the
Supreme Court has indicated that the appropriate focus is on the
totality of the circumstances and reasonableness of the
officer’s actions.   See United States v. Sharpe, 470 U.S. 675,
685 (1985). Whether a reasonable person would believe he or she
was being arrested is but one factor to consider.
                                7
available, but whether the police acted unreasonably in failing

to    recognize    or      to     pursue     it.”            Id.   at    687;    cf.     State   v.

Spreitz, 190 Ariz. 129, 143-44, 945 P.2d 1260, 1274-75 (1997)

(finding forty-five minute detention of blood-smeared defendant,

who voluntarily cooperated with police and was not restrained,

“no    more    than        that       necessary         to     accomplish        a      reasonable

investigation         of        the    unusual          circumstances            the     officers

encountered”).

¶16           Here, the State, whose burden it is to demonstrate

that    the    continued          detention           was     reasonable,        presented       no

evidence to meet that burden.                     See Royer, 460 U.S. at 500 (“It

is the State’s burden to demonstrate that the seizure it seeks

to justify on the basis of reasonable suspicion was sufficiently

limited in scope and duration to satisfy the conditions of an

investigative seizure.”).                    Although Boteo-Flores was properly

detained and questioned initially, he remained handcuffed for

another     thirty      to       forty     minutes           after      the     other    officers

returned.         The      State      does    not       suggest         that    probable     cause

supported that continued detention, and nothing in the record

explains why it was reasonable to detain him in handcuffs to

await interrogation by the detective.

¶17           Nor has the State explained why it was necessary to

wait for a detective to question Boteo-Flores.                                       Although an

extended      detention          might       be       reasonable         under    Terry     while
                                                  8
officers await specialized equipment such as a drug sniffing

dog, see, e.g., State v. Teagle, 217 Ariz. 17, 26-27 ¶¶ 33-37,

170 P.3d 266, 275-76 (App. 2007) (concluding one hour and forty

minute detention to wait for drug sniffing dog reasonable), such

concerns do not justify the continued detention here.                                   Nothing

in the record shows any reason for detaining Boteo-Flores to

await the detective’s arrival.

¶18        To    be      sure,   it    may       be    reasonable         for     an    officer

initiating a Terry stop to wait for another officer.                                    But the

record must reflect the reason.                   The officers at the scene had

the information about the stolen vehicle and actually observed

Boteo-Flores’s        suspicious      actions.              Nothing        in     the    record

suggests   why     the    detective     was       necessary         to    question       Boteo-

Flores for purposes of completing the investigative stop.

¶19        The trial court and court of appeals relied on State

v.    Blackmore,      186    Ariz.     630,           925    P.2d        1347   (1996),      in

determining that the officer acted reasonably in handcuffing and

detaining Boteo-Flores throughout the investigation.                                   But that

case focused on the initial use of handcuffs after an officer

detained   a     suspect     and      not    their          continued       use     once    the

officer’s safety concerns were allayed.                      Id. at 631, 925 P.2d at

1348.    Significantly, the restraint and detention in Blackmore

lasted “for only a few minutes,” 186 Ariz. at 633, 925 P.2d at

1350,    but     Boteo-Flores          was       detained           in     handcuffs        for
                                             9
considerably longer, with no articulated concerns for preserving

officer safety or preventing him from fleeing.

¶20          Blackmore does not control our analysis in this case.

The   detaining     officer    was    justified       in    initially      handcuffing

Boteo-Flores because the officer was alone and did not know

whether Boteo-Flores was armed.               That threat clearly ended when

the other officers returned.               Boteo-Flores was compliant and

nothing indicates he had a weapon; he was not even frisked.

Although the use of handcuffs does not automatically transform a

Terry stop into an arrest, see Blackmore, 186 Ariz. at 633-34,

925 P.2d at 1350-51, their continued use when no ongoing threat

exists suggests the detainee is under arrest.                     See United States

v. Bautista, 684 F.2d 1286, 1289-90 (9th Cir. 1982); cf. State

v. Buti, 964 P.2d 660, 664 (Idaho 1998) (finding the use of

handcuffs and removal of suspects at gunpoint transformed stop

into an arrest when several officers were present, there was no

indication    that    the     suspects    were    armed,         and   suspects       were

compliant).         The   State      argues    that        the   continued      use    of

handcuffs was justified because at least one passenger from the

car had not been located.             But any threat based on the unknown

whereabouts    of    another      possible     suspect,          without   more,      was

purely speculative.

¶21          The lack of evidence that officers acted diligently in

investigating     Boteo-Flores’s         connection        to    the   stolen    pickup
                                         10
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.                 The State conceded that police

officers      did    not    have   probable      cause   to   arrest      Boteo-Flores

until he confessed to the detective.

¶22           Even when a confession results from an illegal arrest,

however, it need not be suppressed if it “was ‘sufficiently an

act of free will to purge the primary taint of the unlawful

invasion.’”         State v. Reffitt, 145 Ariz. 452, 457, 702 P.2d 681,

686 (1985) (quoting Wong Sun v. United States, 371 U.S. 471, 488

(1963)); see also Brown v. Illinois, 422 U.S. 590, 602 (1975).

The   State     argues      that   the     confession    here      was    sufficiently

attenuated from the illegal arrest; Boteo-Flores argues that the

State   waived       this    issue    by    not    raising    it     below.       These

arguments were not considered in the decision below and should

be addressed by the court of appeals in the first instance.

                                   III. CONCLUSION

¶23           For the foregoing reasons, we vacate the decision of

the court of appeals and remand the case to that court for

further proceedings consistent with this opinion.



                                   _____________________________________
                                   Robert M. Brutinel, Justice

                                            11
CONCURRING:


_____________________________________
Rebecca White Berch, Chief Justice


_____________________________________
W. Scott Bales, Vice Chief Justice


_____________________________________
A. John Pelander, Justice


_____________________________________
*




                                                            
              *
      Before his resignation on June 27, 2012, as a result of his
appointment to the United States Court of Appeals for the Ninth
Circuit, Justice Andrew D. Hurwitz participated in this case,
including oral argument, and concurred in this opinion’s
reasoning and result. 
                                                               12
