                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                      STATE OF ARIZONA, Appellant,

                                        v.

                        ALFONSO BUSTOS, Appellee.

                             No. 1 CA-CR 14-0266
                              FILED 8-25-2015


           Appeal from the Superior Court in Maricopa County
                        No. CR2008-155348-001
               The Honorable Phemonia L. Miller, Judge

                                  AFFIRMED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Amanda M. Parker
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Charles R. Krull
Counsel for Appellee
                            STATE v. BUSTOS
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Randall M. Howe delivered the decision of the Court, in
which Judge Michael J. Brown and Judge Kent E. Cattani joined.


H O W E, Judge:

¶1           The State appeals the trial court’s order granting Alfonso
Bustos’ motion to suppress his blood results pursuant to the Fourth and
Fifth Amendments to the United States Constitution. For the following
reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2             Late one evening, two police officers were on car patrol. At an
intersection, the officers saw Bustos weaving in and out of his lane. The
officers followed and eventually stopped Bustos. One of the officers
approached Bustos’ vehicle, smelled alcohol on his breath, and noticed his
red, bloodshot eyes. The officers arrested Bustos, took him to a DUI
processing van, and then to a police station where a phlebotomist drew his
blood.

¶3            At the subsequent evidentiary hearing to suppress Bustos’
blood results, the DUI processing van officer testified about his interaction
with Bustos. The van officer was parked at an intersection, and the arresting
officers brought Bustos to him. The van officer read Bustos Miranda1
warnings verbatim from a card and asked him if he understood them.
Bustos replied, “Not really.” The officer further explained the warnings, but
Bustos “continued to say ‘not really,’” and so the officer discontinued the
interview. The van officer testified that Bustos invoked his rights to counsel
and to remain silent.

¶4            The van officer proceeded to set up an Intoxilyzer 8000 and
then held the tube to Bustos and asked him to blow. Bustos responded that
he did not want to. The officer then read Bustos the implied consent
affidavit verbatim, as Arizona’s implied consent statute A.R.S. § 28–1321
required. Once again, Bustos said that he did not want to take the test.



1      Miranda v. Arizona, 384 U.S. 436 (1966).


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                            STATE v. BUSTOS
                           Decision of the Court

¶5             Bustos then asked to speak to an attorney. The van officer told
him that he could and offered a phone book or cell phone. Bustos made a
call with his own phone, speaking in Spanish. The officer did not know if
Bustos had spoken to an attorney. Based on Bustos’ refusal to take the
breath test, however, the officer started drafting a search warrant
application. After the officer finished, he gave the application to the
arresting officers, who then drove Bustos to the police station.

¶6             The phlebotomist who drew Bustos’ blood also testified. He
stated that when he arrived at the police station, Bustos was already in a
holding cell. The arresting officers briefed the phlebotomist on the details
of the arrest. The phlebotomist learned that Bustos had refused to comply
with the breath test and that the van officer “was going to author” a search
warrant application.

¶7           The phlebotomist also learned that Bustos had invoked his
Fifth Amendment rights to counsel and to remain silent, which meant to
the phlebotomist that the police should “stop [their] investigation,
questioning-wise, and . . . wait it out.” The phlebotomist nevertheless
proceeded to ask the arresting officers if he could speak with Bustos. They
agreed.

¶8             The phlebotomist testified that upon entering the cell, he
introduced himself to Bustos, explained how the blood draw worked,
showed Bustos the kit, and asked Bustos which needle he preferred. The
phlebotomist then testified that Bustos—without prompting from him—
said, “Okay, let’s go do it.” The phlebotomist then “clarified” whether
Bustos meant that he wanted the phlebotomist to draw his blood. He
further testified that he was not trying to get statements from Bustos or get
Bustos to consent to a blood draw.

¶9            On cross-examination, the phlebotomist admitted that after
asking Bustos some questions, he asked, “Hey, are you willing to go
through a blood draw”—not that Bustos agreed to the blood draw without
prompting from him. On redirect-examination, the State asked the
phlebotomist to explain his previous statement; the phlebotomist said that
his question about the blood draw was actually his clarifying question. But
on recross-examination, defense counsel played a recording of the
phlebotomist’s interview where he said that after some “light chit-chat”
with Bustos, he asked, “Hey, are you willing to go through a blood draw?”
The State did not object to the recording or request that the entire recording
be played or admitted to provide context under Arizona Rule of Evidence
106. On further redirect-examination, the phlebotomist spoke


                                      3
                             STATE v. BUSTOS
                            Decision of the Court

hypothetically that after some light chit-chat, he would ask a suspect
whether he was willing to have his blood drawn.

¶10          After some back and forth between the phlebotomist and
Bustos, Bustos agreed to the blood draw. The phlebotomist drew Bustos’
blood, and Bustos did not interfere with the investigation. Because Bustos
consented, the search warrant application was not submitted, and no
warrant was issued.

¶11           After reviewing the evidence, the trial court granted Bustos’
motion and suppressed the blood results. The court noted that the
phlebotomist’s action “was deliberately conducted to circumvent [Bustos’]
constitutional protections.” It found that the phlebotomist’s testimony
lacked credibility and that his techniques and further questionings were not
attempts to clarify, “but interrogation tactics designed to persuade [Bustos]
to second guess his initial decision to invoke.” The court concluded that
Bustos had invoked his rights to counsel and to remain silent, that he did
not waive those rights, and that the phlebotomist violated those rights. The
court also concluded that the blood draw was conducted without a search
warrant and that Bustos did not voluntarily and freely give his consent.

¶12          The State dismissed the case without prejudice and timely
appealed the trial court’s ruling on the motion to suppress.

                               DISCUSSION

¶13           The State argues that the trial court erred by granting Bustos’
motion to suppress his blood results. We review a trial court’s ruling on a
motion to suppress for an abuse of discretion. State v. Payne, 233 Ariz. 484,
502 ¶ 42, 314 P.3d 1239, 1257 (2013). We defer to the trial court’s
determination of witness credibility and the reasonableness of their
inferences drawn from the evidence, but we review the court’s legal
conclusions de novo. State v. Baggett, 232 Ariz. 424, 426 ¶ 7, 306 P.3d 81, 83
(App. 2013). We consider only the evidence presented at the suppression
hearing and view the facts in the light most favorable to upholding the
court’s ruling. State v. Yonkman, 233 Ariz. 369, 371 ¶ 4, 312 P.3d 1135, 1137
(App. 2013). Because the evidence supports the trial court’s ruling, the court
did not abuse its discretion by granting Bustos’ motion to suppress.

¶14           The State first contends that the phlebotomist did not violate
Bustos’ Fifth Amendment rights to counsel or to remain silent because
Bustos was not subject to custodial interrogation for purposes of Miranda.
Pursuant to the Fifth Amendment, Miranda warnings are required when a
person is subject to custodial interrogation. Edwards v. Arizona, 451 U.S. 477,


                                      4
                             STATE v. BUSTOS
                            Decision of the Court

485–86 (1981). A person is in custody when he is under arrest or when his
“freedom of movement is restrained to a degree associated with formal
arrest.” State v. Ramirez, 178 Ariz. 116, 123, 871 P.2d 237, 244 (1994).
Interrogation “includes both express questioning and words or actions that
. . . the officer knows or reasonably should know are likely to have the force
of a question on the accused . . . and therefore be reasonably likely to elicit
an incriminating response.” Pennsylvania v. Muniz, 496 U.S. 582, 601 (1990)
(internal quotation marks and citation omitted).

¶15           Once Miranda warnings have been given and a person
invokes his right to counsel or to remain silent, the interrogation must stop.
Miranda, 384 U.S. at 473–74. “At this point he has shown that he intends to
exercise his Fifth Amendment privilege; any statement taken after the
person invokes his privilege cannot be other than the product of
compulsion, subtle or otherwise.” Id.

¶16            The trial court did not err in finding that the phlebotomist
violated Bustos’ rights to counsel and to remain silent. Bustos was in
custody because he was under arrest. See Ramirez, 178 Ariz. at 123, 871 P.2d
at 244. Bustos was also subject to interrogation. Once the arresting officers
transported Bustos to the police station, the phlebotomist assigned to draw
his blood once the warrant was issued asked to speak with Bustos. The
phlebotomist did so even knowing that Bustos had invoked his rights and
had declined to give a breath sample. In contrast, when Bustos
unequivocally invoked his right to remain silent and asked to speak with
an attorney, the van officer respected Bustos’ rights and ceased questioning
him and—because he had declined to allow his breath to be tested—turned
to drafting a search warrant application to seize a sample of Bustos’ blood.

¶17           Although the phlebotomist testified on direct-examination
that he only talked about the blood draw process with Bustos and was not
trying to “get answers” from him, he admitted on cross-examination that
he asked Bustos questions, including whether Bustos was willing to submit
to a blood draw. And while the phlebotomist testified on redirect-
examination that his questions were merely “clarifying,” during a defense
interview, he never mentioned that he asked questions for the sake of
clarifying what Bustos meant.

¶18            Consequently, the trial court found that the phlebotomist
lacked credibility and that his questions were not “attempts to clarify” as
he later tried to explain in his testimony, but rather “interrogation tactics”
to persuade Bustos to second guess his initial decision to invoke his Fifth
Amendment rights. The State urges us to find that the trial court abused its


                                      5
                             STATE v. BUSTOS
                            Decision of the Court

discretion in finding that the phlebotomist lacked credibility. We will defer
to the trial court’s assessment of the phlebotomist’s credibility, however,
because it is “in the best position to make that determination.” State v.
Estrada, 209 Ariz. 287, 292 ¶ 22, 100 P.3d 452, 457 (App. 2004); see also Clark
v. Renaissance West, LLC, 232 Ariz. 510, 514 ¶ 19, 307 P.3d 77, 81 (App. 2013)
(providing that this Court defers to the trial court’s factual findings absent
a clear abuse of discretion).

¶19           The State further contends that regardless of the Fifth
Amendment violations, Bustos consented to the blood draw. Under the
Fourth Amendment, warrantless searches are per se unreasonable, subject
only to a few established exceptions. State v. Butler, 232 Ariz. 84, 87 ¶ 12, 302
P.3d 609, 612 (2013). One long recognized exception is consent. State v.
Davolt, 207 Ariz. 191, 203 ¶ 29, 84 P.3d 456, 468 (2004). Consent is valid only
if voluntary, Butler, 232 Ariz. at 88 ¶ 18, 302 P.3d at 613, which is a question
of fact determined from the totality of the circumstances, Schneckloth v.
Bustamonte, 412 U.S. 218, 226–28 (1973). Even if a person consents to a
search, evidence seized must still be suppressed “if the consent is tainted
by a prior constitutional violation.” State v. Guillen, 223 Ariz. 314, 317 ¶ 13,
223 P.3d 658, 661 (2010) (citing Brown v. Illinois, 422 U.S. 590, 602 (1975)).

¶20           Suppression is not required, however, if the unconstitutional
conduct is sufficiently attenuated from the subsequent seizure. Id. To
determine whether the taint of the illegal conduct is sufficiently attenuated
from evidence subsequently obtained by a consent, “we examine 1)
whether Miranda warnings were administered; 2) the temporal proximity
between the initial illegality and the defendant’s consent; 3) whether there
were intervening circumstances; and 4) the purpose and flagrancy of the
official conduct.” Davolt, 207 Ariz. at 203 ¶ 30, 84 P.3d at 468. The last factor
“goes to the very heart and purpose of the exclusionary rule.” State v.
Hummons, 227 Ariz. 78, 81 ¶ 14, 253 P.3d 275, 278 (2011).

¶21            Although Bustos consented to the blood draw by allowing the
phlebotomist to take his blood without resisting, his consent was invalid. It
was tainted by the prior Fifth Amendment violations and could not provide
a sufficient basis for the police to draw Bustos’ blood. As discussed, Bustos
was advised of his Miranda rights and he invoked his Fifth Amendment
rights to counsel and to remain silent. The temporal proximity between the
custodial interrogation and his consent was less than one hour. “This time
period alone is insufficient to break the causal chain.” Davolt, 207 Ariz. at
203 ¶ 31, 84 P.3d at 468. Moreover, no intervening events broke the chain
between the improper questioning and consent, such as “a subsequent



                                       6
                             STATE v. BUSTOS
                            Decision of the Court

release from custody, an appearance before a magistrate, discussions with
a lawyer, or a subsequent conviction on unrelated charges.” Id. at ¶ 32.

¶22            Finally, the phlebotomist’s conduct was “purposeful and
flagrant.” Id. at ¶ 30. Although the phlebotomist knew that Bustos had
invoked his Fifth Amendment rights, he nevertheless entered Bustos’ cell
and questioned him. Unlike the van officer, who immediately ceased
questioning after Bustos invoked his rights and proceeded to draft the
warrant application—as the law requires—the phlebotomist asked the
arresting officers if he could speak with Bustos. After chit-chatting with
Bustos, the phlebotomist asked him if he would give his blood. The trial
court, who heard and observed the phlebotomist’s testimony and
demeanor, found that he lacked credibility, specifically when he said that
Bustos, without prompting from him, said, “[L]et’s go do this,” that is,
“Let’s do the blood draw.” But Busto did not make that statement—if he
made it at all—without prompting from the phlebotomist.

¶23            Further, the phlebotomist knew the lawful procedure after a
suspect invokes his Fifth Amendment rights. The phlebotomist testified
that once a suspect has invoked those rights, the police should “stop [their]
investigation, questioning-wise, and . . . wait it out.” Consequently, on these
facts, Bustos’ consent was tainted by the prior Fifth Amendment violations
and could not provide a sufficient basis for the police to draw his blood.

¶24           The State counters that Bustos’ blood would have inevitably
been drawn pursuant to a warrant. “Illegally obtained physical evidence
may be admitted if the State can demonstrate by a preponderance of the
evidence that such evidence inevitably would have been discovered by
lawful means.” Id. at 204 ¶ 35, 84 P.3d at 469. But here, the State has not
proven that Bustos’ blood inevitably would have been obtained lawfully.
The record shows that despite having drafted a search warrant application,
the police did not submit the application, and therefore, no court issued a
warrant for Bustos’ blood. Consequently, the blood draw violated the
Fourth Amendment as an unconstitutional search, and the evidence
obtained was correctly suppressed. The trial court did not abuse its
discretion in granting Bustos’ motion.




                                      7
                    STATE v. BUSTOS
                   Decision of the Court

                     CONCLUSION

¶25   For the foregoing reasons, we affirm.




                          :ama




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