                                                                    FILED BY CLERK
                            IN THE COURT OF APPEALS                   NOV -8 2012
                                STATE OF ARIZONA
                                  DIVISION TWO                          COURT OF APPEALS
                                                                          DIVISION TWO



THE STATE OF ARIZONA,                      )        2 CA-CR 2010-0106
                                           )        DEPARTMENT A
                              Appellee,    )
                                           )        OPINION
                    v.                     )
                                           )
NELSON IVAN BOTEO-FLORES,                  )
                                           )
                              Appellant.   )
                                           )


           APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                              Cause No. CR20092575002

                          Honorable Terry L. Chandler, Judge

                                     REVERSED


Thomas C. Horne, Arizona Attorney General
 By Kent E. Cattani, Joseph T. Maziarz, and
 Amy M. Thorson                                                               Tucson
                                                               Attorneys for Appellee

Lori J. Lefferts, Pima County Public Defender
 By Lisa M. Hise                                                               Tucson
                                                               Attorneys for Appellant


H O W A R D, Chief Judge.
¶1            After a jury trial, appellant Nelson Boteo-Flores was convicted of

facilitation of theft of a means of transportation and sentenced to the presumptive prison

term of 1.75 years. On remand from our supreme court, we must decide whether Boteo-

Flores’s statements after his de facto arrest were sufficiently an act of free will to purge

the primary taint of the illegal arrest. See State v. Boteo-Flores, 230 Ariz. 105, ¶¶ 21-22,

280 P.3d 1239, 1243 (2012). Boteo-Flores contends the state waived its attenuation

argument by not raising it in the trial court. He further contends that, even if the

argument is not waived, the state failed to show his statements were purged from the taint

of his illegal arrest. Because we find his statements were admitted improperly, we

reverse.

                          Factual and Procedural Background

¶2            This appeal stems from the trial court’s ruling on Boteo-Flores’s motion to

suppress. We therefore consider only the evidence presented at the suppression hearing,

which we view in the light most favorable to sustaining the court’s ruling. See State v.

Gay, 214 Ariz. 214, ¶ 4, 150 P.3d 787, 790 (App. 2007). After a police officer went to an

apartment complex to investigate a report of a stolen truck, he conducted surveillance of

the parking lot and saw a driver arrive in a car registered to that address. A few minutes

later, the car drove away. The driver was using a cellular telephone and binoculars, and

he looked up and down the street before leaving the parking lot. The car returned a short

time later with three occupants whom the officer could not identify. Minutes after that,

Boteo-Flores walked from the apartment complex to the street and looked up and down


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the street several times. The original driver of the car then drove out of the complex in

the stolen truck the officers had been trying to locate.        The driver yelled or said

something to Boteo-Flores before he drove away, and Boteo-Flores watched the vehicle

leave.

¶3                The officer approached Boteo-Flores, told him he was a police officer and

handcuffed him. The officer then administered Miranda1 warnings and questioned him.

The officer detained Boteo-Flores for fifteen to twenty minutes while waiting for an auto

theft detective to arrive on scene to question Boteo-Flores. Once the detective arrived, he

was briefed by the first officer and did not begin his interview of Boteo-Flores for fifteen

to twenty minutes after his arrival. The detective asked general questions of Boteo-

Flores, read him the Miranda warnings, and began questioning him. Boteo-Flores then

made incriminating statements.

¶4                Before his jury trial, Boteo-Flores filed a motion to suppress his

incriminating statements, which the trial court denied. After trial, Boteo-Flores was

convicted of facilitation of theft of a means of transportation and sentenced to the

presumptive prison term of 1.75 years. On appeal, he made several arguments, including

that the court had erred in denying his motion to suppress statements because they were

the result of an illegal detention or arrest. State v. Boteo-Flores, No. 2 CA-CR 2010-

0160, ¶¶ 5-12 (memorandum decision filed Apr. 12, 2011). We rejected his arguments




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             Miranda v. Arizona, 384 U.S. 436, 444-45 (1966).

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and affirmed his conviction and sentence. Id. ¶¶ 12, 20. Boteo-Flores then petitioned our

supreme court for review.

¶5            The supreme court granted review and considered whether a lawful

investigative stop had become a de facto arrest before Boteo-Flores made admissions.

State v. Boteo-Flores, 230 Ariz. 105, ¶¶ 10, 14-21, 280 P.3d 1239, 1241, 1242-43 (2012).

The supreme court held “[t]he lack of evidence that officers acted diligently in

investigating Boteo-Flores’s connection to the stolen pickup truck and the continued use

of handcuffs when there was no ongoing safety threat or flight risk transformed the valid

Terry stop into a de facto arrest before Boteo-Flores was questioned by the auto theft

detective.” Id. ¶ 21. The court vacated our prior decision and remanded the case for this

court to determine whether Boteo-Flores’s confession after the illegal arrest was

“‘sufficiently an act of free will to purge the primary taint of the unlawful invasion.’” Id.

¶ 22, quoting State v. Reffitt, 145 Ariz. 452, 457, 702 P.2d 681, 686 (1985).

                                   Waiver and Remand

¶6            We first address Boteo-Flores’s contention that the state has waived its

argument that his statement was purged of the taint from his de facto arrest by not raising

it or developing it below. The state argues it was not required to make this argument

because the trial court denied Boteo-Flores’s motion to suppress statements and,

accordingly, it was not required to raise every alternative argument for a ruling in its

favor.




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¶7            We are required to affirm a trial court’s ruling if legally correct for any

reason and, in doing so, we may address the state’s arguments to uphold the court’s

ruling even if those arguments otherwise could be deemed waived by the state’s failure to

argue them below. See State v. Kinney, 225 Ariz. 550, n.2, 241 P.3d 914, 918 n.2 (App.

2010) (although appellate courts generally will not address issue not raised below, we

may address waived issue when attempting to uphold trial court’s ruling). Additionally,

waiver is a procedural concept that we “do not rigidly employ in [a] mechanical fashion,”

State v. Aleman, 210 Ariz. 232, ¶ 24, 109 P.3d 571, 579 (App. 2005), and we may use our

discretion in determining whether to address issues not raised below, see Kinney, 225

Ariz. 550, n.2, 241 P.3d at 918 n.2.

¶8            Here, the trial court’s ruling denying Boteo-Flores’s motion to suppress his

statements favored the state. On appeal, the state’s argument is merely an assertion of

additional grounds for affirming the trial court’s ruling and, because we are required to

affirm the court’s denial of Boteo-Flores’s motion to suppress for any legally correct

reason, we find the argument is not waived. See Kinney, 225 Ariz. 550, n.2, 241 P.3d at

918 n.2.

¶9            Boteo-Flores, however, relies on State v. Brita, 158 Ariz. 121, 124, 761

P.2d 1025, 1028 (1988), which held that it is inappropriate for appellate courts to

consider fact-intensive issues raised for the first time on appeal. He argues “[d]issipation

of taint . . . is an intensely factual argument that requires a full development of the record

at the trial court level.” In Brita, the state was appealing the trial court’s ruling granting


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the defendant’s motion to suppress. Id. at 122, 761 P.2d at 1026. The court of appeals

reversed based on an issue not presented to the lower court, and our supreme court held

this was error because the state had ample opportunity to raise this issue below. Id. at

123-24, 761 P.2d at 1027-28. Our supreme court vacated that portion of the court of

appeals decision, admonishing appellate courts not to consider “unlitigated issues when

to do so violates sound principles of judicial policy.” Id. at 124-25, 761 P.2d at 1028-29.

Brita is distinguishable from the present case, however, because here the trial court

denied Boteo-Flores’s motion to suppress statements and the state is presenting an

argument to uphold the court’s ruling, not to attack it as the state did in Brita. As noted

above, we may consider issues presented for the first time on appeal if they are raised to

uphold the lower court’s ruling. See Kinney, 225 Ariz. 550, n.2, 241 P.3d at 918 n.2.

Accordingly, we conclude we may consider the state’s argument.

¶10           Second, we address whether we should remand this case to the trial court to

allow the state to develop the record in support of its argument raised for the first time on

appeal. The state argues remand is unnecessary because the record is adequate, but if we

determine the record is inadequate, we should remand for the limited purpose of further

developing facts related to the illegal arrest and confession. Boteo-Flores argues remand

to the trial court is unnecessary in this case because the trial court is not required to

review the record under a new legal standard and there are no conflicting facts or

inferences. Albeit for different reasons, the parties agree the factual record developed at

the suppression hearing is sufficient for our review, but argue about the legal conclusion


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to be reached from the facts developed there. In the absence of conflicting facts and

inferences, remand is unnecessary. See State v. Goracke, 210 Ariz. 20, ¶ 12, 106 P.3d

1035, 1038 (App. 2005). It also would be unfair to the defendant to allow the state,

which bears the burden to establish the legality of a confession, another opportunity to do

so. See State v. Amaya-Ruiz, 166 Ariz. 152, 164, 800 P.2d 1260, 1272 (1990) (state’s

burden); State v. Crowley, 202 Ariz. 80, ¶¶ 32, 34, 38, 41 P.3d 618, 629-30 (App. 2002)

(affirming trial court when state did not adequately develop record at suppression

hearing). We therefore reach the merits of the case.

                                Admission of Statements

¶11           On the merits, Boteo-Flores argues a direct causal connection exists

between the illegal arrest and his admissions, and no evidence shows circumstances that

attenuate the connection or purge its taint. Because the state did not present this issue

below, and the trial court determined that the detention was legal, the court did not reach

this question. But the parties do not dispute any relevant facts. See State v. Spears, 184

Ariz. 277, 284, 908 P.2d 1062, 1069 (1996) (we look only to facts presented at

suppression hearing). Additionally, the admissibility of a confession following an illegal

arrest is a mixed question of law and fact, which we determine as a matter of law. State

v. Monge, 173 Ariz. 279, 281, 842 P.2d 1292, 1294 (1992). Accordingly, we may

determine this issue in the first instance. See State v. Kinney, 225 Ariz. 550, ¶¶ 11, 20,

241 P.3d 914, 919, 921 (App. 2010) (deciding attenuation issue as matter of law even

though not presented to trial court); see also State v. Payne, 223 Ariz. 555, n.8, 225 P.3d


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1131, 1145 n.8 (App. 2009) (“‘If application of a legal principle, even if not raised below,

would dispose of an action on appeal and correctly explain the law, it is appropriate for

us to consider the issue.’”), quoting Evenstad v. State, 178 Ariz. 578, 582, 875 P.2d 811,

815 (App. 1993) (alterations in Payne omitted).

¶12           To determine whether a confession is sufficiently attenuated from an illegal

arrest, we apply the test articulated in State v. Reffitt, 145 Ariz. 452, 458, 702 P.2d 681,

687 (1985). We consider, on a case-by-case basis, (1) the temporal proximity between

the illegal arrest and the confession, (2) the presence of intervening circumstances, and

(3) the purpose and flagrancy of official misconduct. State v. Hummons, 227 Ariz. 78,

¶ 9, 253 P.3d 275, 277 (App. 2011). “A waiver of Miranda rights alone cannot purge the

taint of an illegal arrest.” Reffitt, 145 Ariz. at 458, 702 P.2d at 687.

¶13           Here, an officer stopped Boteo-Flores in connection with the investigation

of a stolen truck, handcuffed him, gave him Miranda warnings, asked him some initial

questions, and called for an auto theft detective to question him further. An illegal de

facto arrest occurred after this initial interaction because police continued to detain

Boteo-Flores in handcuffs for thirty to forty minutes without probable cause. See State v.

Boteo-Flores, 230 Ariz. 105, ¶¶ 14-22, 280 P.3d 1239, 1242-43 (2012). When the auto

theft detective arrived, he gave Miranda warnings again before Boteo-Flores made

incriminating statements.

¶14           Boteo-Flores does not contest the voluntariness of his statements but argues

instead that the arrest cannot be causally separated from the incriminating statements


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because they were given soon after the arrest, there were no intervening circumstances,

and the purpose of the illegal arrest was to interrogate Boteo-Flores further in an attempt

to obtain information about the stolen truck. The state concedes the arrest and confession

occurred in close temporal proximity and there were no intervening circumstances, but

argues the third factor, the purpose and flagrancy of the official misconduct, shows the

taint of the illegal arrest had been purged because the officers were motivated solely by

officer safety.   It contends this concern, coupled with the Miranda warnings, can

sufficiently attenuate the confession from the illegal arrest. However, as our supreme

court held, the record does not support a claim that the officers were concerned for their

safety once the first officer to stop Boteo-Flores handcuffed him—but did not feel

compelled to conduct a frisk search—and other officers arrived on the scene. Boteo-

Flores, 230 Ariz. 105, ¶¶ 19-20, 280 P.3d at 1243. And, although the record does not

indicate the officers knew they were violating Boteo-Flores’s rights, they kept him in

custody in order to interrogate him further, thereby exploiting the illegal arrest. Thus, the

Miranda warnings are the only remaining circumstance to attenuate the taint of the illegal

arrest. But our law is clear that Miranda warnings alone are insufficient. See Reffitt, 145

Ariz. at 458, 702 P.2d at 687. Because the state has not shown the taint of the illegal

arrest was purged, the statements made after the de facto arrest were improperly

admitted.




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                                          Conclusion

¶15           For the foregoing reasons, the trial court erred in denying Boteo-Flores’s

motion to suppress. We vacate Boteo-Flores’s conviction and sentence and remand this

case for further proceedings consistent with this decision.




                                                /s/ Joseph W. Howard
                                                JOSEPH W. HOWARD, Chief Judge

CONCURRING:


/s/ Peter J. Eckerstrom
PETER J. ECKERSTROM, Presiding Judge




/s/ J.   William Brammer, Jr.
J. WILLIAM BRAMMER, JR., Judge *




*A retired judge of the Arizona Court of Appeals authorized and assigned to sit as a judge on the
Court of Appeals, Division Two, pursuant to Arizona Supreme Court Order filed August 15,
2012.

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