                                 IN THE

    SUPREME COURT OF THE STATE OF ARIZONA
                           STATE OF ARIZONA,
                               Appellee,

                                    v.

                  FRANCISCO L. ENCINAS VALENZUELA,
                               Appellant.

                           No. CR-15-0222-PR
                           Filed April 26, 2016

           Appeal from the Superior Court in Cochise County
                The Honorable Karl D. Elledge, Judge
                          No. CR-201300076
                             AFFIRMED

             Opinion of the Court of Appeals, Division Two
                237 Ariz. 307, 350 P.3d 811 (App. 2015)
                              VACATED

COUNSEL:

Mark Brnovich, Arizona Attorney General, John R. Lopez IV, Solicitor
General, Joseph T. Maziarz, Chief Counsel, Criminal Appeals Section,
Diane Leigh Hunt (argued), Assistant Attorney General, Tucson, Attorneys
for State of Arizona

Mark F. Willimann (argued), The Law Office of Mark F. Willimann, LLC,
Tucson, Attorney for Francisco L. Encinas Valenzuela

Bruce Washburn, Scottsdale City Attorney, Ken Flint, Assistant City
Prosecutor, Scottsdale, Attorneys for Amicus Curiae City of Scottsdale

Jeffrey D. Bartolino (argued), Law Offices of Jeffrey D. Bartolino, Tucson;
and David J. Euchner, Pima County Public Defender’s Office, Tucson,
Attorneys for Amicus Curiae Arizona Attorneys for Criminal Justice
                          STATE V. VALENZUELA
                            Opinion of the Court


Dean Brault, Pima County Legal Defender, Scott A. Martin, Assistant Legal
Defender, Tucson, Attorneys for Amicus Curiae Pima County Legal
Defender’s Office

Michelle L. Behan, Nesci & St. Louis, P.L.L.C., Tucson, Attorneys for
Amicus Curiae National College for DUI Defense, Inc.


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 in part and
dissented in part.

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
deemed to 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 provides that “[a] person who
operates a motor vehicle in this state gives consent . . . to a test or tests of
the person’s blood, breath, urine or other bodily substance” if the person is
arrested for driving under the influence of alcohol or drugs (“DUI”). A.R.S.
§ 28-1321(A). Nevertheless, “the statute generally does not authorize law
enforcement officers to administer the test without a warrant unless the
[operator] expressly agrees to the test.” Carrillo v. Houser, 224 Ariz. 463, 463
¶ 1, 232 P.3d 1245, 1245 (2010). The issue here is whether, for Fourth
Amendment purposes, a driver arrested for DUI voluntarily consented to
give samples of his blood and breath after a police officer advised him that
“Arizona law requires you to submit” to breath, blood or other bodily
substance tests chosen by law enforcement. We hold that showing only that
consent was given in response to this admonition fails to prove that an
arrestee’s consent was freely and voluntarily given.              Because the
admonition in this case was given in good faith reliance on precedent,
however, exclusion of the test results is neither appropriate nor required.

                                       2
                         STATE V. VALENZUELA
                           Opinion of the Court


                            I. BACKGROUND

¶3             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).

¶4            In August 2012, a Department of Public Safety (“DPS”) officer
found Francisco Valenzuela asleep in the driver’s seat of his stopped truck
with the engine running and the vehicle in gear. After spotting an open
container of alcohol, detecting a strong odor of alcohol, and observing signs
that Valenzuela was impaired, the officer arrested Valenzuela on suspicion
of DUI.

¶5            After taking Valenzuela to a police station, the officer read
Valenzuela an “admin per se” form, which provided, in part, that “Arizona
law requires you to submit to and successfully complete tests of breath,
blood or other bodily substance as chosen by a law enforcement officer to
determine alcohol concentration or drug content.” The officer stressed this
“requirement” three additional times and warned that refusal would result
in a one-year suspension of Valenzuela’s driver’s license. (Although the
officer read from part of the form while testifying at the suppression
hearing, the form itself is not in the record.) Valenzuela cooperated and, in
response to the officer’s questions, stated he understood the admonition
and had no questions. He then submitted to breath and blood tests. After
the tests revealed that Valenzuela had an alcohol concentration (“AC”) in
excess of 0.20, the State charged him with five counts of aggravated DUI.

¶6            Valenzuela moved to suppress the test results. He argued
that he did not voluntarily consent to the tests, and the warrantless search
therefore violated his Fourth Amendment rights. After conducting a
suppression hearing at which only the DPS officer testified, the trial court
denied the motion, reasoning that the totality of the circumstances showed
that Valenzuela had voluntarily consented to the search. Based on the
parties’ stipulated facts, the court subsequently dismissed three counts,
convicted Valenzuela on the remaining counts, and imposed prison
sentences.



                                      3
                         STATE V. VALENZUELA
                           Opinion of the Court

¶7             In a divided decision, the court of appeals affirmed. State v.
Valenzuela, 237 Ariz. 307, 316 ¶ 35, 350 P.3d 811, 820 (App. 2015). The
majority examined the totality of the circumstances and concluded that the
trial court did not err in finding Valenzuela’s consent voluntary. Id. at 315
¶ 31, 350 P.3d at 819. The dissenting judge recognized the need to generally
examine the totality of the circumstances to determine the voluntariness of
consent. Id. at 317 ¶ 39, 350 P.3d at 821 (Eckerstrom, C.J., dissenting).
Relying on Bumper, he nevertheless reasoned that when the evidence shows
that police asserted lawful authority to search, “a court’s analysis has
reached its end; voluntary consent cannot be found as a matter of law.” Id.
Because, in his view, the admonition asserts a claim of lawful authority, the
dissenting judge concluded as a matter of law that Valenzuela could not
have voluntarily consented to testing. Id. at 318 ¶ 45, 350 P.3d at 822.

¶8            We granted Valenzuela’s 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

¶9            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 principles

¶10           The Fourth Amendment to the United States Constitution
protects individuals against “unreasonable searches and seizures,” and any
evidence collected in violation of this provision is generally inadmissible in
a subsequent criminal trial. Mapp v. Ohio, 367 U.S. 643, 654 (1961) (internal
quotation marks and citation omitted). A compelled blood draw or breath
test administered pursuant to § 28-1321 is a search subject to the Fourth
Amendment’s restrictions. See Butler, 232 Ariz. at 87 ¶ 10, 302 P.3d at 612
(citing Missouri v. McNeely, 133 S. Ct. 1552, 1556 (2013)). A warrantless
search is per se unreasonable under the Fourth Amendment unless one of

                                      4
                         STATE V. VALENZUELA
                           Opinion of the Court

a few well-established exceptions applies. Arizona v. Gant, 556 U.S. 332, 338
(2009).

¶11            One exception to the warrant requirement is a search
conducted with consent. See Schneckloth, 412 U.S. at 219. When the state
relies on consent to justify a warrantless search, as it does here, it “has the
burden of proving that the consent was, in fact, freely and voluntarily
given.” Id. at 222 (citation omitted). Whether consent is voluntary or “the
product of duress or coercion, express or implied,” is a factual issue
resolved by reviewing the totality of circumstances, including any “subtly
coercive police questions, as well as the possibly vulnerable subjective state
of the person who consents.” Id. at 227, 229; see also Butler, 232 Ariz. at 87
¶ 13, 88 ¶ 19, 302 P.3d at 612, 613. The state must prove voluntary consent
by a preponderance of the evidence.1 Ariz. R. Crim. P. 16.2(b).

              B.     Application of admonishment given pursuant
                     to § 28-1321, Arizona’s implied consent law

¶12           Valenzuela argues that, under Bumper, his consent to
providing blood and breath samples must be deemed involuntary because
he consented only after the officer advised that Arizona law required him
to submit to testing. The State responds, and the court of appeals majority
agreed, that Bumper is distinguishable, and the totality of the circumstances
evidences Valenzuela’s voluntary consent to the search. Valenzuela, 237
Ariz. at 311 ¶¶ 12–13, 315 ¶ 31, 350 P.3d at 815, 819.

¶13           In Bumper, law enforcement officers went to a home where a
suspect lived with his grandmother. 391 U.S. at 546. After the grandmother
opened the door, an officer announced he had a warrant to search her home,
she said, “Go ahead,” and the search unearthed evidence against the
grandson. Id. In a subsequent suppression hearing in the grandson’s
criminal case, the prosecutor did not produce a warrant but relied solely on
the grandmother’s consent to justify the lawfulness of the search. Id. The


1In State v. Cañez, this Court mistakenly stated that the state must prove
voluntary consent “by clear and positive evidence in unequivocal words or
conduct expressing consent.” 202 Ariz. 133, 151 ¶ 53, 42 P.3d 564, 582 (2002)
(quoting State v. Kananen, 97 Ariz. 233, 235, 399 P.2d 426, 427 (1965)). After
Kananen was decided, however, this Court promulgated Rule 16.2(b), which
replaced the clear-and-positive-evidence standard.
                                      5
                          STATE V. VALENZUELA
                            Opinion of the Court

grandmother testified that “[the officer] said he was the law and had a
search warrant to search the house, why I thought he could go ahead. I
believed he had a search warrant. I took him at his word.” Id. at 547. After
quoting this testimony, the Court relied on a line of older cases to hold that
the prosecution failed in its burden to show that the grandmother freely
and voluntarily consented because the record demonstrated only her
“acquiescence to a claim of lawful authority.” Id. at 548–49, 549 n.13 (citing
Johnson v. United States, 333 U.S. 10, 13 (1948); Amos v. United States, 255 U.S.
313, 317 (1921)). It reasoned that “[w]hen a law enforcement officer claims
authority to search a home under a warrant, he announces in effect that the
occupant has no right to resist the search. The situation is instinct with
coercion—albeit colorably lawful coercion. Where there is coercion there
cannot be consent.” Id. at 550; see also Florida v. Bostick, 501 U.S. 429, 435
(1991) (noting that the Fourth Amendment is not implicated when police
request and obtain consent to search “as long as the police do not convey a
message that compliance with their requests is required”).

¶14            Valenzuela, the court of appeals dissent, and our dissenting
colleague read Bumper as holding that consent is necessarily involuntary
whenever police have asserted lawful authority to search, regardless of
other circumstances. See Valenzuela, 237 Ariz. at 317 ¶ 39, 350 P.3d at 821
(Eckerstrom, C.J., dissenting); infra ¶ 41. Although Bumper did not directly
address whether other circumstances should be examined or a per se rule
applied in deciding whether a consent was freely given or in acquiescence
to an assertion of lawful authority, it arguably rejected the former approach
by not crediting the grandmother’s additional testimony that “I let them
search, and it was all my own free will. Nobody forced me at all.” See
Bumper, 391 U.S. at 556 (Black, J., dissenting); see also Schneckloth, 412 U.S. at
234 (noting that Bumper did not focus on the grandmother’s subjective
mindset). But another explanation is that the Court simply examined the
circumstances surrounding the consent objectively, as it has done in
subsequently decided Fourth Amendment decisions, see Florida v. Jimeno,
500 U.S. 248, 252 (1991) (scope of consensual search); Illinois v. Rodriguez,
497 U.S. 177, 186 (1990) (third party consent); United States v. Mendenhall,
446 U.S. 544, 554–55 (1980) (seizure), and concluded that the grandmother
acquiesced to an assertion of lawful authority even though she had no
objection to the officers executing on the warrant.

¶15          Schneckloth indicates that Bumper did not establish a per se
rule. The issue in Schneckloth concerned what the prosecution must show

                                        6
                          STATE V. VALENZUELA
                            Opinion of the Court

to demonstrate that a consent to search was given voluntarily. 412 U.S. at
223. The Court held that “whether a consent to a search was in fact
‘voluntary’ or was the product of duress or coercion, express or implied, is
a question of fact to be determined from the totality of all the
circumstances.” Id. at 227. Referring to its prior decisions to demonstrate
the need for a “careful sifting of the unique facts and circumstances of each
case,” the Court stated that “if under all the circumstances it has appeared that
the consent was not given voluntarily—that it was coerced by threats or
force, or granted only in submission to a claim of lawful authority—then we have
found the consent invalid and the search unreasonable.” Id. at 233
(emphasis added). Significantly, the Court cited Bumper, Johnson, and Amos
for this principle, removing any doubt that it intended that courts make the
totality-of-circumstances inquiry in cases involving an assertion of lawful
authority to search. See id. Indeed, Justice Marshall acknowledged this
intent in his dissent by criticizing the majority for including Bumper-like
scenarios within the totality-of-circumstances inquiry. See id. at 283
(Marshall, J., dissenting) (“We did not [in Bumper] inquire into all the
circumstances, but focused on a single fact, the claim of authority, even
though the grandmother testified that no threats were made. . . . It may be
that, on the facts of that case, her consent was under all the circumstances
involuntary, but it is plain that we did not apply the test adopted by the
Court today.”).

¶16             The Schneckloth Court’s discussion of Johnson, which Bumper
relied on, further supports our view. In Johnson, federal narcotics agents
smelled burning opium outside a hotel room and gained entry after one
agent knocked on the door, identified himself as a lieutenant, and then
stated, “I want to talk to you a little bit.” 333 U.S. at 12. The defendant
opened the door, “stepped back acquiescently and admitted [the agents].”
Id. The Court held that a subsequent search of the room violated the Fourth
Amendment because “[e]ntry to defendant’s living quarters . . . was
demanded under color of office. It was granted in submission to authority
rather than as an understanding and intentional waiver of a constitutional
right.” Id. at 13. In Schneckloth, after characterizing Johnson’s use of the term
“waiver” as a synonym for “consent search,” the Court stated that the
Johnson Court “arrived at the conclusion that there had been no ‘waiver’
from an analysis of the totality of the objective circumstances—not from the
absence of any express indication of Johnson’s knowledge of a right to
refuse or the lack of explicit warnings.” 412 U.S. at 243 n.31 (emphasis
added).

                                       7
                          STATE V. VALENZUELA
                            Opinion of the Court

¶17            Our dissenting colleague suggests that we are misreading
Schneckloth as displacing the Court’s holdings in Bumper, Johnson, and Amos.
See infra ¶ 39. That is incorrect. We merely reject the notion that whenever
a law enforcement officer has asserted a claim of lawful authority to search,
“a court’s analysis has reached its end” and consent must be deemed
involuntary as a matter of law. See Valenzuela, 237 Ariz. at 317 ¶ 39, 350
P.3d at 821 (Eckerstrom, C.J., dissenting). The Bumper line of cases survives
to invalidate any consent given only in acquiescence to an assertion of a
lawful authority to search. See, e.g., Florida v. Royer, 460 U.S. 491, 497 (1983)
(plurality opinion) (citing Schneckloth and Bumper to note that the burden to
prove consent is not satisfied by showing a mere submission to a claim of
lawful authority); Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 329 (1979)
(relying on Bumper to hold that “‘consent’ given in the face of ‘colorably
lawful coercion’” was invalid).          We read Schneckloth and Bumper
harmoniously as requiring a court to examine the circumstances
surrounding an assertion of lawful authority to search to determine
whether the consent was sufficiently independent of the assertion to
remove its taint. If not, the consent was not freely and voluntarily given.

¶18           Although it might be difficult to prove that consent given
after an assertion of lawful authority to search was nevertheless freely
given, we should not preclude the possibility that it could happen. For
example, consent conceivably could be voluntary if, after an officer asserts
lawful authority to search, the officer retracts that assertion or an attorney
advises that the search is not lawfully required before the subject of the
search consents. See Kunzler v. Pima Cty. Superior Court, 154 Ariz. 568, 570,
744 P.2d 669, 671 (1987) (holding that a person arrested for DUI has the right
to consult an attorney before taking a breath test when such consultation
would not delay or interfere with the investigation or test taking); State v.
Brooks, 838 N.W.2d 563, 571 (Minn. 2013) (“The fact that [defendant]
consulted with counsel before agreeing to take each [AC] test reinforces the
conclusion that his consent was not illegally coerced” as “an attorney
functions as an objective advisor who could explain the alternative choices
to the driver”) (internal quotation marks and citation omitted). In such
cases, a court might find that any subsequently granted consent was not
compelled by the original assertion of authority.

¶19           Our dissenting colleague’s position is not far removed from
ours. He rejects an examination of other circumstances only when consent
to a search “is immediately preceded by an assertion of lawful authority.”

                                       8
                          STATE V. VALENZUELA
                            Opinion of the Court

See infra ¶ 47. It is unlikely, but not impossible, that the state could meet its
burden to prove that consent is voluntary if given immediately after an
assertion of lawful authority to search. Cf. Hoover v. Beto, 467 F.2d 516, 521
(5th Cir. 1972) (deciding Bumper did not invalidate consent given
immediately after officer said he had a warrant to search a home when the
defendant, a criminal practice attorney, told officer that “his warrant was
not necessary and to come on into his home and search wherever he
wanted”); Earls v. State, 496 S.W.2d 464, 466, 468 (Tenn. 1973) (rejecting
argument that Bumper provides “a blanket prohibition” and concluding
that consent provided after presentation of warrant was voluntary when
the defendant threw it to the ground and stated, “You needn’t to have
brought a search warrant. You gentlemen are welcome to search anywhere
on my premises you want to search and take anything you find.”).
Regardless, the Schneckloth Court rejected the type of per se rule the dissent
proposes. See 412 U.S. at 229 (“The problem of reconciling the recognized
legitimacy of consent searches with the requirement that they be free from
any aspect of official coercion cannot be resolved by any infallible
touchstone.”); see also United States v. Drayton, 536 U.S. 194, 207 (2002)
(noting that “there are no per se rules” in deciding whether consent was
voluntary).

¶20             Since Schneckloth, the Court’s declarations in other cases
involving voluntary consent to search bolster the view that a court must
examine the totality of the circumstances even when officers assert a lawful
authority to search. See Drayton, 536 U.S. at 207 (“[T]he Court has repeated
that the totality of the circumstances must control” in deciding consent);
Mendenhall, 446 U.S. at 558–59 (examining circumstances surrounding
consent to decide whether the district court properly found consent
voluntary rather than coerced). Other courts have also supported this view.
See, e.g., United States v. Juarez, 573 F.2d 267, 273–74 (5th Cir. 1978) (noting
Bumper and Schneckloth, then examining the totality of circumstances to
conclude that defendant gave voluntary consent by saying, “[t]hat’s fine”
after officer said “Well, I am going to have to search you”); Byars v. State,
533 S.W.2d 175, 180 (Ark. 1976) (“[W]e do not take Bumper to mean that an
accused can never be deemed to have consented to a search, if a search
warrant had been obtained and the accused was aware of that fact. Rather,
we consider that this question is determined by the particular facts present
when the consent is purportedly given.”). This Court has likewise focused
on the totality of the circumstances, including but not limited to an officer’s
reading of an admin per se form, in determining whether a DUI suspect’s

                                       9
                          STATE V. VALENZUELA
                            Opinion of the Court

consent to search was freely and voluntarily given. See Butler, 232 Ariz. at
88–89, ¶¶ 19–20, 302 P.3d at 613–14.

¶21            For these reasons, we hold that a trial court should examine
the totality of the circumstances to decide whether consent was voluntary,
even when given after a law enforcement officer’s assertion of lawful
authority to search. We neither decide whether the court should apply an
objective or subjective standard to resolve this issue nor identify whose
perspective—the search subject’s, the officer’s, or a hypothetical third
party’s— from which to view the voluntariness of consent. The parties did
not brief these issues, and the Supreme Court’s Fourth Amendment
jurisprudence after Schneckloth has cast doubt on pinpointing the correct
approach. Cf. Megan Annitto, Consent Searches of Minors, 38 N.Y.U. Rev. L.
& Soc. Change 1, 8–9 (2014) (describing shift in the Supreme Court from
examining subjective factors to instead considering whether an officer
reasonably believed that consent was voluntary); Blanca L. Hernández,
Incapacity to Refuse Consent: Fourth Amendment Offenses in Consensual
Searches of Individuals with Mental Illness, 23 S. Cal. Rev. L. & Soc. Just. 387,
399–400 (Spring 2014) (noting that the Drayton Court strayed from
Schneckloth’s assessment of the consenter’s personal perspective and mental
state in favor of examining the conduct of law enforcement); Nancy Leong
& Kira Suyeishi, Consent Forms and Consent Formalism, 2013 Wis. L. Rev. 751,
760–61 (2013) (“Following Mendenhall, the Supreme Court suggested in a
number of cases that the court should determine whether an officer’s
actions were reasonable from an objective standpoint, rather than a
subjective one . . . . The Court has not, however, explicitly overruled
Schneckloth, leaving doubt regarding the extent to which consent searches
should take subjective factors into account.”). In any event, we would reach
the same conclusion here regardless of which approach is followed.

¶22           Based on our review of the suppression hearing evidence, we
conclude that the State failed to prove by a preponderance of the evidence
that Valenzuela’s consent was voluntary. Bumper and Johnson direct this
outcome. By telling Valenzuela multiple times that Arizona law required
him to submit to and complete testing to determine AC or drug content, the
officer invoked lawful authority and effectively proclaimed that Valenzuela
had no right to resist the search. See Bumper, 391 U.S. at 549; Johnson, 333
U.S. at 13–15. At the time of these repeated admonitions, Valenzuela had
been arrested and taken to a police station. Nothing in the record suggests
that the officer retracted the assertion of lawful authority to conduct a

                                       10
                          STATE V. VALENZUELA
                            Opinion of the Court

warrantless search or that other circumstances existed to dispel the
coerciveness of the admonitions before Valenzuela granted consent.

¶23            Our society expects, and unquestionably demands, that
people follow directives issued by law enforcement officers. Cf. Bumper,
391 U.S. at 549 n.14 (noting that acquiescence to a warrant demonstrates “an
intention to abide by the law” and “show[s] a regard for the supremacy of
the law”); see also Tom R. Tyler & John M. Darley, Building a Law-Abiding
Society: Taking Public Views About Morality and the Legitimacy of Legal
Authorities into Account When Formulating Substantive Law, 28 Hofstra L. Rev.
707, 716 (2000) (“Citizens regard it as appropriate for police officers to direct
citizen behavior, and they follow these directives without requiring
explanation or justification.”). That is what Valenzuela did here.
Consequently, Valenzuela’s “consent,” like the grandmother’s consent in
Bumper, was merely an acquiescence to a claim of lawful authority.

¶24            The State argues that Bumper is distinguishable because the
officer there effectively told the grandmother she had no right to resist the
search by claiming to have a warrant, while the DPS officer here correctly
informed Valenzuela that Arizona law required him to submit to testing or
his license would be suspended. The implied consent law, however,
nowhere “requires” a DUI arrestee to submit to testing, and the DPS
officer’s admonition therefore did not mirror the statute. See A.R.S. § 28-
1321(A), (B) (stating that although a DUI arrestee “gives consent” to testing
of blood, breath, or other bodily substance, he “shall be requested to submit
to and successfully complete” any such test) (emphasis added). But even
assuming that the officer accurately paraphrased the law, this distinction is
immaterial. The Bumper Court’s ruling turned on the grandmother’s
acquiescence to the officer’s assertion of lawful authority to search
regardless of the truthfulness of the officer’s claim to possess a warrant. See
Bumper, 391 U.S. at 548–49 (holding that the prosecutor’s burden to prove
that consent was voluntarily given “cannot be discharged by showing no
more than acquiescence to a claim of lawful authority”). The officer’s claim
of authority to search was “instinct with coercion” whether or not he
actually possessed a valid warrant. See. id. at 549 (“A search conducted in
reliance upon a warrant cannot later be justified on the basis of consent if it
turns out that the warrant was invalid.”); see also Lo-Ji Sales, 442 U.S. at 329
(citing Bumper and holding that after a business’s agent was arrested and
made aware of “the presumed authority” of a search warrant, his
compliance with officers’ requests could not be considered free and

                                       11
                          STATE V. VALENZUELA
                            Opinion of the Court

voluntary consent to a search); State v. Medicine, 865 N.W.2d 492, 498 ¶ 13
(S.D. 2015) (holding that Bumper applies whether an officer honestly
represents authority or fabricates it). Consequently, whether the officer
here correctly recited Arizona’s implied consent law is immaterial.

¶25            The State also argues that Bumper is inapplicable because,
regardless of the DPS officer’s admonitions in this case, Valenzuela
consented to the search pursuant to § 28-1321(A) by operating a vehicle
within the state. Although § 28-1321 validly provides an arrestee’s consent
to civil penalties for refusing or failing to complete requested tests, we have
rejected the contention that the implied consent law operates to
prospectively provide consent to a search for Fourth Amendment purposes.
See Butler, 232 Ariz. at 88 ¶ 18, 302 P.3d at 613 (“[I]ndependent of § 28-1321,
the Fourth Amendment requires an arrestee’s consent to be voluntary to
justify a warrantless blood draw.”); Carrillo, 224 Ariz. at 463 ¶ 1, 232 P.3d at
1245 (interpreting § 28-1321 to require either an arrestee’s express consent
or a warrant before an officer can administer a test). According to the State,
however, the United States Supreme Court suggested in McNeely that
implied consent laws validly require arrestees to submit to blood draws and
are sufficient to satisfy the consent exception to the warrant requirement,
unless the arrestee withdraws consent.

¶26           The State misreads McNeely. The issue there was whether the
dissipation rate of alcohol in the bloodstream constitutes an exigency that
justifies warrantless searches in all drunk-driving cases. 133 S. Ct. at 1556.
The Court rejected a per se exigency exception and held that “[w]hether a
warrantless blood test of a drunk-driving suspect is reasonable must be
determined case by case based on the totality of the circumstances.” Id. at
1563. In responding to Missouri’s argument that requiring a warrant to
draw blood would undermine efforts to combat drunk-driving, the Court
pointed out that states “have a broad range of legal tools to . . . secure [AC]
evidence without undertaking warrantless nonconsensual blood draws.”
Id. at 1566 (plurality opinion). As one example, the Court noted that all
states “have adopted implied consent laws that require motorists . . . to
consent to [AC] testing if they are arrested,” and such laws impose
significant consequences, such as license suspension, when an arrestee
withdraws consent. Id. The Court did not suggest, however, that implied
consent laws supply an arrestee’s constitutionally valid consent to a
warrantless search. From the context of the discussion, we read the Court’s
reference to implied consent laws as meaning that these laws likely

                                      12
                         STATE V. VALENZUELA
                           Opinion of the Court

convince many drivers to give consent rather than suffer the statutory
consequences for not doing so, thereby sparing law enforcement the need
to secure a warrant. See id.

¶27            The court of appeals majority distinguished Bumper because,
unlike the grandmother there, Valenzuela supposedly knew he could
refuse consent. Valenzuela, 237 Ariz. at 311 ¶ 13, 350 P.3d at 815. It reasoned
that § 28-1321 permits a driver to refuse a warrantless search, and the DPS
officer here gave Valenzuela that choice by informing him that a refusal
would result in a civil penalty and prompt the officer to seek a warrant to
compel testing. Id. We disagree. The officer’s testimony is unclear whether
he provided this information to Valenzuela. But even if he did so, he
effectively asked Valenzuela to either follow Arizona law (submit to
testing) or violate Arizona law (refuse to submit to testing). That
Valenzuela might have been informed of the consequences for refusal does
not alter the fact that the officer coerced Valenzuela’s consent by repeatedly
telling him that Arizona law “required” him to submit to testing, implying
that he had no legal right to refuse.

¶28           We do not hold today that § 28-1321 violates the Fourth
Amendment or that officers must cease advising arrestees about the law’s
requirements and the civil consequences for refusal.2 See Campbell v.
Superior Court, 106 Ariz. 542, 554, 479 P.2d 685, 697 (1971) (finding “no
merit” to the argument that Arizona’s implied consent law violates the
Fourth Amendment). But officers must inform arrestees in a way that does
not coerce consent by stating or implying that officers have lawful
authority, without a warrant, to compel samples of blood, breath, or other
bodily substances.

¶29           A law enforcement officer can invoke the implied consent law
without infringing on an arrestee’s Fourth Amendment rights by following
the procedure set forth in § 28-1321(B). After making a DUI arrest, the
officer should ask whether the arrestee will consent to provide samples of
blood, breath, or other bodily substances for testing. If the arrestee
expressly agrees and successfully completes testing, the officer need not

2The 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).
                                      13
                          STATE V. VALENZUELA
                            Opinion of the Court

advise the arrestee of the statutory consequences for refusing consent. The
officer must, however, advise the arrestee before testing that the outcome
of the tests may result in the penalties set forth in § 28-1321(B)(1) and (2). If
the arrestee refuses to consent to testing or fails to successfully complete the
tests, the officer should advise the arrestee of the consequences for refusal
or incomplete testing as provided in § 28-1321(B), and then ask again
whether the arrestee will consent to testing. Although this choice “will not
be an easy or pleasant one for a suspect to make,” this difficulty does not
make the decision coerced. South Dakota v. Neville, 459 U.S. 553, 564 (1983)
(considering Fifth Amendment challenge to admission in evidence of
refusal given in response to implied consent admonition). If the arrestee
again refuses to agree to testing or fails to successfully complete testing, a
test must not be given unless the officer secures a search warrant, except
that the officer may validly obtain a sample of blood or other bodily
substances taken for medical purposes, A.R.S. §§ 28-1321(D)(1), -1388(E).
Alternatively, the state might revise its implied consent admin per se form
to mirror one used in South Dakota, which provides the arrestee with a clear
choice whether to submit to testing or refuse consent. See Neville, 459 U.S.
at 555 n.2.

¶30           In sum, we hold that the State failed to carry its burden to
show by a preponderance of the evidence that Valenzuela freely and
voluntarily consented to providing samples of his blood and breath. By
advising Valenzuela after he was arrested and detained that Arizona law
required him to submit to testing, the officer invoked lawful authority to
compel consent. Because nothing in the suppression hearing record dispels
the coercive implication of the officer’s repeated admonition, the trial court
erred by finding that Valenzuela had voluntarily consented to the search
and then denying the motion to suppress the test results on that basis. Cf.
Medicine, 865 N.W.2d at 500 ¶ 17 (holding consent to blood draw
involuntary when, among other circumstances, it was given after officer
informed arrestee that South Dakota law provides that drivers
automatically consent to blood draws).

              C.      Good-faith exception to the exclusionary rule

¶31           The State alternatively argues, as it did at the suppression
hearing, that the good-faith exception to the exclusionary rule applies, and
the trial court therefore properly denied the motion to suppress. The
exclusionary rule, which allows suppression of evidence obtained in

                                       14
                          STATE V. VALENZUELA
                            Opinion of the Court

violation of the Fourth Amendment, is a prudential doctrine invoked to
deter future violations. Davis v. United States, 564 U.S. 229, 131 S. Ct. 2419,
2426 (2011). “Exclusion is ‘not a personal constitutional right,’ nor is it
designed to ‘redress the injury’ occasioned by an unconstitutional search.”
Id. (citation omitted). Therefore, when law enforcement officers “act with
an objectively reasonable good-faith belief that their conduct is lawful,”
deterrence is unnecessary and the exclusionary rule does not apply. Id. at
2427–28 (internal quotation marks and citation omitted); see also A.R.S. § 13-
3925 (codifying good-faith exception to the exclusionary rule).

¶32              The good-faith exception applies here. Well before the DPS
officer advised Valenzuela from the admin per se form, this Court
characterized Arizona’s implied consent law as “requir[ing] a person to
submit to a chemical test of his blood, [breath] or urine if arrested for [DUI]
or face a . . . suspension of his driver’s license.” Campbell, 106 Ariz. at 546,
479 P.2d at 689. In State v. Brito, 183 Ariz. 535, 538–39, 905 P.2d 544, 547–48
(App. 1995), the court of appeals rejected an argument that the same admin
per se form read to Valenzuela incorrectly advised that Arizona law requires
submission to testing before asking for consent. The court concluded that
the admonition’s language conformed to our decision in Campbell and
“does not misstate the law,” and that “a licensed driver does not have an
unfettered right to refuse to take a blood alcohol test or breath test upon the
request of a law enforcement officer”). See also Jefferson Lankford, Arizona
DUI: A Manual for Police, Lawyers, and Judges 66, 133 (2001-2002 ed.) (stating
that “[t]he driver has the power but not the right to refuse testing under the
implied consent law” and including an “admin per se” form with language
identical to that used by the DPS officer here). Pursuant to a then-existing
statutory mandate, the court in Brito also reviewed the record for
fundamental error, which would have encompassed the court’s complete
case review for any prejudicial Fourth Amendment violations resulting
from use of the admonition, but found none. 183 Ariz. at 539, 905 P.2d at
548.

¶33           We today hold that consent given solely in acquiescence to
the admonition used here and in Brito is not free and voluntary under the
Fourth Amendment and cannot excuse the failure to secure a warrant. But
at the time of events here, the DPS officer followed binding precedent that
had sanctioned use of the admonition read to Valenzuela, and the good-
faith exception therefore applies. Cf. Davis, 131 S. Ct. at 2429 (“An officer
who conducts a search in reliance on binding appellate precedent does no

                                      15
                          STATE V. VALENZUELA
                            Opinion of the Court

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).

¶34             The dissent contends that use of the admin per se form reflects
“recurring or systemic negligence” by law enforcement because this Court
in Carrillo “expressly reject[ed] Brito’s assertion that Arizona’s implied
consent statute requires suspects to submit to testing.” See infra ¶ 57. But
Carrillo did not address whether the implied consent statute “requires”
submission to testing as stated in Campbell and Brito. Instead, Carrillo held
that, as a matter of statutory interpretation, the implied consent statute
requires that an arrestee “unequivocally manifest assent to the testing by
words or conduct” before officers can conduct warrantless testing. 224
Ariz. at 466 ¶ 19, 232 P.3d at 1249. We neither suggested that the
admonition used here to obtain that assent misstated the law or was
coercive, nor has this Court ever questioned or overruled Campbell or Brito.
Indeed, because the officer in Carrillo had not advised the defendant of the
implied consent law, the lawfulness of an admonition was not at issue. See
224 Ariz. at 463 ¶¶ 3–4, 232 P.3d at 1245. The dissent faults law enforcement
for failing to anticipate that we would disapprove the admin per se form in
the wake of Carrillo, but we are hard-pressed to do so when Carrillo is not
dispositive of the issue raised here, and our courts have continued to
approve the admonition. See State v. Oliver, No. 2 CA-CR 2014-0359 ¶¶ 23–
25 (Ariz. App. Aug. 18, 2015) (mem.) (following Brito to reject defendant’s
argument that the given admonitions, which mirrored ones given to
Valenzuela, misstated the implied consent statute); Valenzuela, 237 Ariz. at
313 ¶ 24, 350 P.3d at 817 (“[I]t is not a per se violation of the Fourth
Amendment if the officer phrases the admonition as a requirement.”).

¶35            In short, the DPS officer here did not “deliberately, recklessly,
or with gross negligence” conduct the search in violation of the Fourth
Amendment, but instead acted with “an objectively reasonable good-faith
belief” that the admonition was lawful. Davis, 131 S. Ct. at 2427–28 (internal
quotation marks omitted). Suppression of Valenzuela’s test results would
not serve the exclusionary rule’s purposes. Cf. Herring v. United States, 555
U.S. 135, 144 (2009) (“To trigger the exclusionary rule, police conduct must
be sufficiently deliberate that exclusion can meaningfully deter it, and
sufficiently culpable that such deterrence is worth the price paid by the
justice system.”). For these reasons, the good-faith exception to the

                                      16
                         STATE V. VALENZUELA
                           Opinion of the Court

exclusionary rule applies. The trial court therefore properly denied the
motion to suppress, albeit for a different reason. 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.”).

                            III. CONCLUSION

¶36          We vacate the court of appeals’ opinion and affirm
Valenzuela’s convictions and resulting sentences.




                                     17
                    STATE V. VALENZUELA
    CHIEF JUSTICE BALES, Concurring in Part and Dissenting in Part


Bales, C.J., concurring in part and dissenting in part.

¶37           I agree that Valenzuela did not voluntarily consent to the
warrantless search, and I therefore specially concur in parts I, II.A, and II.B
of the majority opinion. In two respects, however, I disagree with the
majority’s analysis. First, I would hold that a person cannot, as a matter of
law, be deemed to have voluntarily consented by acquiescing when police
assert a search is lawfully authorized (or, as the police stated here,
“required” by law). Second, I would not address, in the first instance, the
application of the good-faith exception to the exclusionary rule, but if I had
to reach the merits, I would hold that the exception does not apply.
Accordingly, I respectfully dissent from parts II.C and III.

                                      I.

¶38            Consistent with Schneckloth, the majority recognizes that the
voluntariness of consent to a search is determined by the “totality of the
circumstances.” Supra ¶ 11. In most cases, this inquiry is a factual
determination that considers various aspects of the setting in which a search
occurs, the conduct of law enforcement officers, and the characteristics of
the person who submits to the search. See Schneckloth, 412 U.S. at 226–27,
229; Butler, 232 Ariz. at 87–88, ¶¶ 13, 20, 302 P.3d at 612-13.

¶39           “Where there is coercion there cannot be consent.” Bumper,
391 U.S. at 550. Bumper and earlier Supreme Court decisions recognize that
an assertion of lawful authority is inherently (although perhaps lawfully)
coercive. Thus, if submission to a search is immediately preceded by such
an assertion, consent cannot be deemed voluntary. See id. More
colloquially, these cases stand for the principle that people do not
“voluntarily” consent to searches when they do what the police say the law
requires them to do. This “lawful authority principle” is not displaced by
Schneckloth.

¶40            The lawful authority principle is clearly illustrated by Bumper,
where the Court held that a homeowner’s consent was involuntary solely
because it was immediately preceded by an officer’s assertion that he had a
warrant. Id. at 548–49. Bumper gave no weight to other circumstances of
the search. The homeowner was never placed in custody or threatened; she
told the officers to “go ahead and look all over the house.” Id. at 556 (Black,

                                      18
                    STATE V. VALENZUELA
    CHIEF JUSTICE BALES, Concurring in Part and Dissenting in Part


J., dissenting). She testified that she “had no objection to [the police]
making a search,” she allowed the search “entirely under her own free
will,” and she was not forced “at all.” Id.

¶41            Despite the circumstances suggesting the homeowner was
not pressured to submit, the Court in Bumper treated as dispositive the fact
that the search was immediately preceded by an assertion of lawful
authority by the police. Because such an assertion is inherently coercive, id.
at 550, any succeeding “consent” cannot be “freely and voluntarily given.”
Id. at 548–49.     The Court effectively held that consent, in these
circumstances, cannot, as a matter of law, be deemed voluntary.

¶42             Bumper comports with prior Supreme Court decisions. In
Johnson v. United States, 333 U.S. 10 (1948), the police, having traced the
smell of burning opium to a hotel room, gained entry by knocking on the
door, identifying themselves, and telling the occupant that they “want[ed]
to talk to [her] a little bit.” Id. at 12. The occupant stepped back
“acquiescently” and admitted the officers. Id. Rejecting any suggestion that
the occupant had consented to the entry, the Court observed that it “was
demanded under color of office” and “granted in submission to authority.”
Id. at 13. In ruling the entry was nonconsensual, the Court did not consider
other circumstances of the search.

¶43           Johnson in turn cited Amos v. United States, 255 U.S. 313 (1921),
where officers went to a home seeking evidence of illegally distilled
whiskey. Id. at 315. The officers gained entry by telling the suspect’s wife
that they were “revenue officers that had come to search the premises ‘for
violations of the revenue law.’” Id. Without otherwise assessing the
circumstances, the Court noted that any contention that the search had been
consensual “cannot be entertained,” because the officers had demanded
admission “to make a search . . . under government authority.” Id. at 317.
Foreshadowing Bumper, the Court noted that “it is perfectly clear that under
the implied coercion here presented,” the wife could not voluntarily
consent to the search (which the Court phrased as waiving the husband’s
constitutional rights). Id.

¶44         We should read Schneckloth as preserving the lawful authority
principle. Most significantly, the principle respects Fourth Amendment
values by recognizing that we expect people to comply with police

                                      19
                    STATE V. VALENZUELA
    CHIEF JUSTICE BALES, Concurring in Part and Dissenting in Part


assertions of lawful authority and that acquiescence in such assertions
should not be viewed as “freely and voluntarily” given consent.

¶45             Schneckloth,  moreover, quoted           Bumper’s reasoning
approvingly and otherwise indicates the Court did not intend to displace
its earlier case law. Citing Bumper, Johnson, and Amos, the Court noted “if
under all the circumstances it has appeared that the consent was not given
voluntarily—that it was coerced by threats or force, or granted only in
submission to a claim of lawful authority—then we have found the consent
invalid and the search unreasonable.” 412 U.S. at 233–34. This statement
should not be read as modifying the Court’s prior decisions, but instead as
recognizing that the lawful authority principle complements the “totality
of the circumstances” test. Immediately after making this statement,
Schneckloth explained that the Court had not found valid consent in Bumper,
noting that “(w)hen a law enforcement officer claims authority to search a
home under a warrant, he announces in effect that the occupant has no right
to resist the search. The situation is instinct with coercion—albeit colorably
lawful coercion. Where there is coercion there cannot be consent.” Id. at
234 (quoting Bumper, 391 U.S. at 550).

¶46           Schneckloth did not itself involve an assertion of lawful
authority to conduct a search, but instead whether the prosecution must
show that a person knew he or she had a right to refuse in order to establish
that consent was voluntarily given. 412 U.S. at 223-24. In holding that such
knowledge is not a prerequisite, Schneckloth noted that this factor was not
considered in Bumper, Johnson, or Amos. Id. at 234. But recognizing that
these decisions did not require the prosecution to show a person
subjectively knew they could refuse to submit, or that voluntariness
depends on the “totality of the circumstances,” is not inconsistent with the
lawful authority principle. See id. at 243 n.31 (noting that Johnson and Amos
turned on objective circumstances of search rather than absence of
knowledge of right to refuse).

¶47          Indeed, Schneckloth itself noted “Our decision today is a
narrow one. We hold only that when the subject of a search is not in
custody and the State attempts to justify a search on the basis of his consent,
the Fourth and Fourteenth Amendments require that it demonstrate that
the consent was in fact voluntarily given, and not the result of duress or
coercion, express or implied.” 412 U.S. at 248. Although “[v]oluntariness

                                      20
                    STATE V. VALENZUELA
    CHIEF JUSTICE BALES, Concurring in Part and Dissenting in Part


is a question of fact to be determined from all the circumstances,” id. at 248–
49, the Court in Schneckloth also restated its earlier observation in Bumper
that assertions of lawful authority are inherently coercive. The best way to
reconcile the Supreme Court’s statements is to recognize that consent to a
search cannot, as a matter of law, be deemed voluntary when it is
immediately preceded by an assertion of lawful authority.

¶48          In rejecting this proposition, the majority identifies two
hypotheticals. Supra ¶ 18. The first is when an officer retracts an assertion
of lawful authority before a person accedes to a search. This hypothetical
does not argue against the lawful authority principle. The principle rests
on the inherent coerciveness of the assertion of lawful authority; it does not
apply when the assertion is withdrawn before a person assents to a search.

¶49            The second hypothetical – where an officer’s assertion of
authority is contradicted by a private third-party before the person submits
to a search – also does not support rejecting the lawful authority principle.
One might conclude that the inherently coercive nature of the officer’s
assertion cannot be dispelled by unofficial, third-party statements. To hold
otherwise would require finding that a person can completely ignore the
officer’s claimed authority and “freely” submit after a third party tells them
they need not do so. None of the cases cited by the majority, supra ¶ 18,
involve a third party contradicting an officer’s assertion of authority. Nor
need we address that issue here: the officer’s assertion immediately
preceded Valenzuela’s assent to the search.

¶50             The majority also implicitly recognizes that the Schneckloth
“totality test” must apply differently when, as is true here, an officer has
asserted lawful authority to conduct a search. The majority – like the
Supreme Court in Bumper and Johnson – does not find significant various
circumstances that generally apply under a “totality” test, but instead gives
dispositive weight to the officer’s repeated assertions of lawful authority.
Compare ¶¶ 22–23 (concluding that Valenzuela’s “consent,” like the
grandmother’s consent in Bumper, was involuntary because nothing
dispelled the coercive nature of the assertion of authority) with Valenzuela,
237 Ariz. at 315 ¶¶ 30-31, 350 P.3d at 819 (noting that various factors,
including suspect’s demeanor, emotional state, education, and intelligence,
should be considered); cf Schneckloth, 412 U.S. at 227, 249 (noting that


                                      21
                    STATE V. VALENZUELA
    CHIEF JUSTICE BALES, Concurring in Part and Dissenting in Part


suspect’s knowledge of right to refuse generally is a factor to be
considered).

¶51          A better path to the majority’s conclusion would be holding
that consent cannot, as a matter of law, be deemed voluntary when it is
immediately preceded by a claim of lawful authority. Reaffirming this
lawful authority principle would remain faithful to Supreme Court
precedent while protecting Fourth Amendment values and providing
clearer guidance for the public, law enforcement, and our courts.

                                     II.

¶52           The majority, recognizing that Valenzuela’s consent was
involuntary, goes on to hold that the evidence obtained from the unlawful
search is admissible under the good-faith exception to the exclusionary
rule. ¶¶ 30–32. The good-faith exception was not addressed by the trial
court or the court of appeals.

¶53            Application of the good-faith exception can involve
complicated considerations of the social costs and deterrent benefits from
excluding the evidence at issue. See, e.g., Herring v. United States, 555 U.S.
135, 141 (2009) (discussing whether to apply the good-faith exception to the
exclusionary rule requires analyzing the benefits of deterrence against the
social costs of excluding evidence in any particular case). The parties did
not discuss the exception in their briefs – indeed, the State merely afforded
the exception a passing mention in a footnote. Given the lack of briefing, I
would decline to address the good-faith exception and instead remand to
the trial court to consider, in the first instance, whether the issue has been
preserved and, if so, how it should be resolved.

¶54           On the merits, I disagree with the majority’s analysis. Davis
states that when law enforcement officers “act with an objectively
reasonable good-faith belief that their conduct is lawful,” deterrence is
unnecessary and the exclusionary rule does not apply. 131 S. Ct. at 2427–
28. But the rule serves an important deterrence purpose when there is
either deliberate, reckless, or grossly negligent conduct or “recurring or
systemic negligence.” Davis, 131 S. Ct. at 2428 (citing Herring, 555 U.S. at
144).


                                     22
                    STATE V. VALENZUELA
    CHIEF JUSTICE BALES, Concurring in Part and Dissenting in Part


¶55           In this case, the officer’s use of an MVD admin per se form
inaccurately telling people that they are required to submit to tests reflects
at least “recurring or systemic negligence.” Id. In applying the good-faith
exception to the exclusionary rule, courts expect that “[r]esponsible law-
enforcement officers will take care to learn what is required of them” under
binding precedent and “conform their conduct to these rules.” Id. at 2429
(internal quotation marks and citations omitted).

¶56            More than five years ago, in Carrillo v. Houser, 224 Ariz. 463,
232 P.3d 1245 (2010), this Court considered whether Arizona’s implied
consent statute, A.R.S. § 28-1321 – the same statute at issue today –
authorizes law enforcement officers to administer warrantless tests without
a person’s express consent. 224 Ariz. at 463 ¶ 1, 232 P.3d at 1245.
Recognizing that the underlying statutes allow people to refuse to submit
to testing, id. at 465 ¶ 11, 232 P.3d at 1247, we held that an officer must
obtain a warrant or express consent in order to administer a test. Id. at 466
¶¶ 18, 19, 232 P.3d at 1248.

¶57           Carrillo establishes that police officers were misstating the law
when they admonished arrestees, based on the MVD form, that they are
required to submit to tests. The misstatement does not occur just once. The
form states that “Arizona law requires you to submit” to a warrantless test,
and repeats that “requirement” under Arizona law no fewer than three
more times. To underscore the point, the form concludes by stating “You
are, therefore, required to submit to the specified tests.” Carrillo was
decided in 2010. Insofar as law enforcement officers have continued to
coercively admonish DUI suspects that “Arizona law requires” submission
to warrantless tests, they have ignored this Court’s binding precedent.

¶58           Given Carrillo, I cannot accept the majority’s conclusions that
“binding precedent” sanctioned the admonition given to Valenzuela and
“the good-faith exception therefore applies.” Supra ¶ 33. As a decision by
this Court, Carrillo is the binding authority regarding the meaning of the
implied consent statute, and its legal force does not depend on our
expressly singling out inconsistent lower court decisions or administrative
practices. The majority’s reliance on State v. Brito, 183 Ariz. 535, 539, 905
P.2d 544, 548 (App. 1995), is particularly misplaced, given that Carrillo
expressly rejects Brito’s assertion that Arizona’s implied consent statute
requires suspects to submit to testing. Cf. Carrillo, 224 Ariz. at 466 ¶ 18, 232

                                      23
                    STATE V. VALENZUELA
    CHIEF JUSTICE BALES, Concurring in Part and Dissenting in Part


P.3d at 1248 (noting that “the statute has always provided that an arrestee
may refuse to submit to tests but that doing so will result in the loss of the
arrestee’s license”). At the least, after Carrillo the admonition was of
dubious legality, and Davis should not apply.

¶59            Extending Davis to apply the good-faith exception when the
law is unsettled incentivizes, rather than deters, unconstitutional behavior.
See Davis, 131 S. Ct. at 2435 (Sotomayor, J., concurring). “Official awareness
of the dubious constitutionality of a practice would be counterbalanced by
official certainty that, so long as the Fourth Amendment law in the area
remained unsettled, evidence obtained through the questionable practice”
would not be excluded. Id. (internal quotation marks and citations
omitted). Cf. Emily Ward, Note, From Pen to Patrol: How Arizona Law
Enforcement Applied Carrillo v. Houser, 53 Ariz. L. Rev. 345 (2011) (discussing
initial responses by law enforcement to Carrillo).

¶60           Here, the police incorrectly told drivers that they were
lawfully required to submit to tests, even though our 2010 decision in
Carrillo recognized that “the statute has always provided that any arrestee
may refuse to submit.” 224 Ariz. at 466 ¶ 18, 232 P.3d at 1248. Applying
the good-faith exception here effectively rewards the systemic failure to
revise the MVD admonition to accurately state the law. That result conflicts
with the reasoning of Davis and the goals of the exclusionary rule. Thus, I
respectfully dissent from parts II.C and III of the majority opinion.




                                      24
