                             IN THE COURT OF APPEALS
                                 STATE OF ARIZONA
                                   DIVISION TWO


THE STATE OF ARIZONA,                         )
                                              )           2 CA-CR 2002-0202
                                 Appellee,    )           DEPARTMENT A
                                              )
                    v.                        )           OPINION
                                              )
MAX VALENCIA CHAVEZ,                          )
                                              )
                                Appellant.    )
                                              )


            APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                                Cause No. CR-20000140

                     Honorable Paul S. Banales, Judge Pro Tempore

                                       AFFIRMED


Terry Goddard, Arizona Attorney General
 By Randall M. Howe and Michael T. O’Toole                                         Phoenix
                                                                    Attorneys for Appellee

Susan A. Kettlewell, Pima County Public Defender
 By John F. Palumbo                                                                Tucson
                                                                   Attorneys for Appellant


H O W A R D, Presiding Judge.


¶1            A jury found appellant Max Valencia Chavez guilty of four felony counts of

aggravated driving under the influence of intoxicants (DUI) based alternately on his revoked

driver’s license and his two prior DUI convictions. The trial court placed him on five
years’ probation and imposed four months’ imprisonment as a condition of his probation.

Chavez appeals, claiming the trial court should have granted his pretrial motion to dismiss

the charges against him or alternatively to suppress evidence, based on what he alleges was

an improper citizen’s arrest under A.R.S. § 13-3884(1). We hold that DUI is an offense

amounting to a breach of the peace, justifying the citizen’s arrest effected in this case, and

we therefore affirm the convictions.

¶2             Motions to dismiss are committed to the sound discretion of the trial court,

and we will not disturb the denial of such a motion absent an abuse of the court’s discretion.

State v. Hansen, 156 Ariz. 291, 294, 751 P.2d 951, 954 (1988). We review a trial court’s

ruling on a motion to suppress evidence using the same standard. State v. Spears, 184 Ariz.

277, 284, 908 P.2d 1062, 1069 (1996). We view the facts and evidence in the light most

favorable to sustaining the trial court’s ruling, but we review questions of law de novo.

State v. Sanchez, 200 Ariz. 163, ¶ 5, 24 P.3d 610, 612 (App. 2001).

¶3            The four charges against Chavez arose from a single incident. On the night

of August 20, 1999, a tribal ranger1 patrolling the San Xavier Indian Reservation observed

Chavez driving erratically on South Mission Road. When Ranger Corella first saw

Chavez’s truck, it was completely stopped in the roadway. Corella pulled to within eight

feet of the truck and sat with his lights on, watching, for approximately two minutes.



       1
        As we discuss below, Ranger Corella did not have specific legal authority as a
ranger to arrest Chavez for DUI. Thus, the legal issue presented is whether the arrest was
proper as a citizen’s arrest pursuant to A.R.S. § 13-3884.

                                              2
¶4            The truck then began to move, and Corella followed it as it proceeded

southbound.    He observed Chavez driving slowly, weaving, stopping, starting, and

continuing to veer on and off the shoulder of the road. Concerned for the safety of other

motorists, Corella radioed his dispatcher to send a tribal police officer. When Ranger

Corella finally activated his vehicle’s emergency lights, Chavez stopped his truck briefly

in the roadway, then resumed his erratic driving for another four-tenths of a mile. Eventually

Chavez pulled over and stopped on the shoulder of the road. Soon after, he opened the

passenger door of his truck, got out, and ran into the desert.

¶5            Ignoring Corella’s command to stop, Chavez continued running. As he ran up

an incline, he lost his balance and fell forward into a prickly pear cactus. When Chavez got

up, covered with cactus spines, Corella placed him in handcuffs. Corella did so, he

testified, for his own safety because he did not know why Chavez had tried to run away

from him. He then noted Chavez was slurring his speech and emanating an odor of alcohol.

After an eight- to twelve-minute wait, a tribal police officer arrived and took custody of

Chavez.

¶6            Before trial, Chavez moved to dismiss or, in the alternative, to suppress

evidence obtained following his arrest. He claimed his detention and arrest were illegal

because Ranger Corella, who was not a certified Arizona peace officer, see A.R.S. §§ 41-

1822, 41-1823, lacked authority to detain him. According to Corella, his official duties as

a ranger include patrolling the 77,000-acre San Xavier reservation with responsibility for

protecting wildlife and enforcing both environmental laws and trespassing laws. Rangers

                                              3
are unarmed, uncertified, and not considered to be law enforcement officers. They do,

however, carry handcuffs, pepper spray, flashlights, and batons and drive marked vehicles

equipped with emergency lights.

¶7           In denying Chavez’s pretrial motion to suppress, the trial court ruled that

Corella had had authority “to stop and detain [Chavez’s] vehicle,” not in his official

capacity as a ranger, but as a private citizen. The court held Chavez’s erratic and

dangerous driving constituted a breach of the peace for purposes of § 13-3884, which

provides:

             Arrest by private person

                    A private person may make an arrest:

                     1. When the person to be arrested has in his presence
             committed a misdemeanor amounting to a breach of the peace,
             or a felony.

                   2. When a felony has been in fact committed and he has
             reasonable ground to believe that the person to be arrested has
             committed it. 2

Chavez does not dispute the authority of a tribal ranger to make a citizen’s arrest. 3 See

State v. Goldberg, 112 Ariz. 202, 204, 540 P.2d 674, 676 (1975) (federal agents with


      2
        In fact, the offenses Chavez committed in Corella’s presence were felonies, by
virtue either of Chavez’s previous DUI convictions or his driver’s license having been
revoked. Presumably because Corella did not know that when he decided to stop Chavez,
the parties have focused their arguments on whether a misdemeanor DUI offense, see
A.R.S. § 28-1381(A), (C), can constitute a breach of the peace under § 13-3884(1).
      3
       Nor does he dispute Corella’s legal authority as a ranger to stop Chavez’s vehicle
“to check on [his] welfare.”

                                            4
limited arrest authority “still have the power to make arrests for violations of state laws as

private citizens”). Rather, he argues that his DUI offense was not a breach of the peace for

purposes of § 13-3884(1) because a breach of the peace is substantially synonymous with

disorderly conduct as defined by A.R.S. § 13-2904(A), which, he contends, does not

encompass DUI.

¶8            Although this is apparently a case of first impression in Arizona, other

jurisdictions have held, and legal treatises recognize, that dangerous or reckless driving,

including DUI, amounts to a breach of the peace allowing a private citizen to stop, detain,

or arrest the driver. See, e.g., 11 C.J.S. Breach of the Peace § 5 (1995) (“[T]he operation

of a motor vehicle while intoxicated is an activity which threatens the public security and

involves violence, and as such, it amounts to a breach of the peace.”); 12 Am. Jur. 2d

Breach of Peace and Disorderly Conduct § 9 (1997) (driving while intoxicated and reckless

driving included among the varied acts and conduct held or recognized to constitute a

breach of the peace); 5 Am. Jur. 2d Arrest § 67 (1995) (officer may arrest for DUI “even

where the power to arrest without warrant is limited to breaches of the peace, since this

offense is held to constitute a breach of the peace, or at least a prospective or anticipated

breach.”).

¶9            Supporting the treatises’ statements are cases from a number of different

jurisdictions. E.g., Edwards v. State, 462 So. 2d 581, 582 (Fla. Dist. Ct. App. 1985);

People v. Niedzwiedz, 644 N.E.2d 53, 55 (Ill. App. Ct. 1994); Commonwealth v. Gorman,

192 N.E. 618, 620 (Mass. 1934); City of Troy v. Cummins, 159 N.E.2d 239, 242 (Ohio Ct.

                                              5
App. 1958); Romo v. State, 577 S.W.2d 251, 253 (Tex. Crim. App. 1979); State ex rel.

State v. Gustke, 516 S.E.2d 283, 291-92 (W. Va. 1999); City of Waukesha v. Gorz, 479

N.W.2d 221, 223 (Wis. Ct. App. 1981); accord Ruiz v. State, 907 S.W.2d 600, 604 (Tex.

Ct. App. 1995); Pringle v. State, 732 S.W.2d 363, 368 (Tex. Ct. App. 1987); Yates v.

State, 679 S.W.2d 534, 537 (Tex. Ct. App. 1984). Notably, Chavez has brought to our

attention no authority from any jurisdiction holding otherwise.

¶10           And, as one Florida appellate court colorfully stated in Edwards, “We cannot

think of a more apt illustration of such breach of the individual and collective peace . . .

than to have a drunk driver at the wheel of a killing machine that is going all over the road

and scaring oncoming drivers to death rather than killing them.” 462 So. 2d at 582; see also

Hudson v. Commonwealth, 585 S.E.2d 583, 588 (Va. 2003) (dangerous driving constitutes

breach of peace, regardless whether driver under influence of intoxicants).

¶11           In a case virtually on all fours with this one, United States v. Sealed

Juvenile 1, 255 F.3d 213 (5th Cir. 2001), an off-duty federal customs officer in Texas

observed a pickup truck being driven erratically, veering in and out of its proper lane,

variously crossing the center line and moving onto the emergency shoulder of the road.

Safety concerns finally prompted the officer to stop the truck, in which he found over 700

pounds of cocaine, which the juvenile driver later moved to suppress as evidence, arguing

the customs officer had lacked authority to stop her.

¶12           The Fifth Circuit cited Texas authority holding that any traffic violation that

“is egregious enough to threaten disaster and disorder or pose a potentially perilous public

                                             6
risk . . . may constitute a breach of the peace,” id. at 218, and also noted that the

determination whether a given act constitutes a breach of the peace requires a case-by-case

analysis of the facts and surrounding circumstances. Under the facts present there, the court

concluded the juvenile’s erratic driving had endangered her own life and the lives of other

motorists and thus constituted a breach of the peace. Id. We believe the same was true of

Chavez’s drunken driving as observed and described by Ranger Corella here.

¶13           We also further disagree with Chavez’s contention that a breach of the peace

in Arizona is confined to the six instances of disorderly conduct enumerated in § 13-

2904(A). Unlike the offense of disorderly conduct, which is a creature of statute, breach

of the peace has its roots in the common law. 12 Am. Jur. 2d Breach of Peace and

Disorderly Conduct §§ 1, 24. The two concepts overlap but are distinguishable, id., and,

“while disorderly conduct can include a breach of the peace, breach of the peace is not

limited to behavior prohibited by the disorderly conduct statutes.” Id. § 1.

¶14           We also reject Chavez’s contention that, even if his DUI offense was a breach

of the peace for purposes of § 13-3884(1), his arrest was illegal because Corella lacked

probable cause to arrest him for the offense. As the Fifth Circuit noted in Sealed

Juvenile 1, the Fourth Amendment’s prohibition against unconstitutional searches and

seizures applies only to government agents; it does not limit the actions of private citizens.

“[A] private citizen’s actions, even if wrongful, do not fall under the ambit of the Fourth

Amendment.” Id. at 216 (citation omitted); see also Burdeau v. McDowell, 256 U.S. 465,

475, 41 S. Ct. 574, 576, 65 L. Ed. 1048, 1051 (1921) (Fourth Amendment’s protection

                                              7
against unlawful searches and seizures applies only to governmental action, not to private

parties); State v. Weekley, 200 Ariz. 421, ¶ 16, 27 P.3d 325, 328 (App. 2001), quoting

Walter v. United States, 447 U.S. 649, 662, 100 S. Ct. 2395, 2404, 65 L. Ed. 2d 410, 421

(1980) (Blackmun, J., dissenting) (Fourth Amendment does not apply “‘to a search or

seizure, even an unreasonable one, effected by a private individual’”). Because the parties

effectively agree that Corella’s actions in stopping and detaining Chavez must be viewed

not as the actions of a law enforcement officer or state agent but as those of a private

citizen, see generally Gustke, the Fourth Amendment’s requirement of probable cause

simply was not implicated here.

¶15           As a corollary of that general principle, and given the exclusionary rule’s

primary purpose, which is to discourage unconstitutional conduct by police, see State v.

Atwood, 171 Ariz. 576, 667, 832 P.2d 593, 684 (1992) (Corcoran, J., specially concurring);

State v. Windus, 207 Ariz. 328, ¶ 16, 86 P.3d 384, 387 (App. 2004), courts have refused

to apply the exclusionary rule to evidence obtained through the unlawful actions of private

citizens. See, e.g., State v. Rice, 110 Ariz. 210, 211-12, 516 P.2d 1222, 1223-24 (1973);

People v. Leighton, 177 Cal. Rptr. 415, 417 (Cal. Ct. App. 1981); State v. Stevens, 603

A.2d 1203, 1209 (Conn. App. Ct. 1992); State v. Hart, 669 N.E.2d 762, 765-66 (Ind. Ct.

App. 1996); State v. Clark, 454 So. 2d 232, 234 (La. Ct. App. 1984); State v. McGinnis,

2000 WL 1133247, at *4 (Ohio Ct. App. Aug. 11, 2000); Town of Mount Pleasant v.

Jones, 516 S.E.2d 468, 471 (S.C. Ct. App. 1999). Hence, as one court has stated, “if the

citizen’s arrest had been unlawful, [Corella] might have incurred liability for damages, but

                                             8
the evidence would not have been suppressed.” Hart, 669 N.E.2d at 766. Therefore, even

had his arrest been unlawful, Chavez’s convictions could still stand because the

exclusionary rule does not apply to the actions of private citizens.

¶16           We hold that driving a vehicle while intoxicated constitutes a misdemeanor

amounting to a breach of the peace within the meaning of § 13-3884(1) and that the trial

court did not abuse its discretion in denying Chavez’s motion to dismiss or to suppress. We

therefore affirm the judgment of convictions, suspension of sentence, and imposition of

probation.




                                             JOSEPH W. HOWARD, Presiding Judge

CONCURRING:




J. WILLIAM BRAMMER, JR., Judge




PHILIP G. ESPINOSA, Judge




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