AZ: Choice of law, exclusionary rule, and GFE

“¶1 Don Jacob Havatone appeals from his convictions and sentences for two counts of aggravated driving under the influence of intoxicating liquor (‘DUI’), one count of aggravated assault, one count of endangerment, and four counts of misdemeanor assault. Because a Nevada statute at the time allowed a blood sample to be taken from an unconscious DUI suspect, the good-faith exception to the exclusionary rule applied, and the superior court did not err by denying Havatone’s motion to suppress.” Defendant’s accident was in Kingman, AZ, but he was taken to a hospital in Nevada where the blood draw was performed. Arizona law would have required suppression, but the good faith exception produces a different result. State v. Havatone, 2019 Ariz. App. LEXIS 556 (June 6, 2019):

II. Choice-of-Law and the Exclusionary Rule Analysis

¶20 Based on the history of the exclusionary rule, we turn to the issue of which state’s law applies. Although choice-of-law inquiries in the criminal context are rare and no prior Arizona case has directly addressed the issue, other jurisdictions have adopted methods for determining whether the forum law (location of prosecution) or the situs law (location of officer conduct) applies. See John Bernard Corr, Criminal Procedure andthe Conflict of Laws, 73 Geo. L.J. 1217, 1220-26 (1985).

¶21 Some states have chosen to employ a civil choice-of-law approach, typically called the interest analysis, which focuses on the forum state’s ties to the case in deciding which law to apply; this approach tends to favor application of forum law. See State v. Grissom, 840 P.2d 1142, 1185-86 (Kan. 1992); People v. Benson, 454 N.Y.S.2d 155, 156-57 (1982); People v. Saiken, 275 N.E.2d 381, 385 (Ill. 1971); Burge v. State, 443 S.W.2d 720, 723 (Tex. Crim. App. 1969).

¶22 Other states have elected to use another approach, typically called the exclusionary rule analysis, which focuses on the underlying principles of the exclusionary rule in deciding which law to apply; this approach tends to favor application of situs law. See State v. Boyd, 992 A.2d 1071, 1084-88 (Conn. 2010); State v. Harvin, 547 S.E.2d 497, 499-500 (S.C. 2001); Pooley v. State, 705 P.2d 1293, 1302-03 (Alaska Ct. App. 1985); State v.Lucas, 372 N.W.2d 731, 736-38 (Minn. 1985); People v. Blair, 602 P.2d 738, 746-49 (Cal. 1979).

¶23 While the exclusionary rule’s focus on deterrence is meant to promote officers’ “knowledge of controlling law,” any forum-based analysis would require officers to learn the law of any “other potentially interested state[].” Corr, supra, at 1228-29. Moreover, any approach that favors application of forum law, even in cases where officers acted lawfully in the situs state, ignores the deterrent purpose of the exclusionary rule. SeePooley, 705 P.2d at 1302-03. Conversely, the exclusionary rule analysis focuses solely on the practical implications of exclusion in a given case. SeeHarvin, 547 S.E.2d at 499. Given the fact-driven nature of the exclusionary rule analysis and the problems that arise under the interest analysis, “the trend appears to be toward using the exclusionary rule analysis.” Tom Quigley, Do Silver Platters Have a Place in State-Federal Relations? UsingIllegally Obtained Evidence in Criminal Prosecutions, 20 Ariz. St. L.J. 285, 322 (1988).

¶24 In Boyd, Pooley, and Blair, the courts in Connecticut, Alaska, and California reasoned that, although the officers’ conduct would have violated their state law, excluding evidence obtained lawfully in other states would not serve to deter future police misconduct. Boyd, 992 A.2d at 1084-86; Pooley, 705 P.2d at 1303; Blair, 602 P.2d at 747-48.

¶25 In the absence of contrary authority in this state, we believe the exclusionary rule analysis is better suited to resolving choice-of-law issues in criminal cases. Using this approach, we must identify the underlying principles of Arizona’s exclusionary rule and determine whether those principles will be served in the application of forum or situs law. See Richard Tullis & Linda Ludlow, Admissibility of Evidence Seized inAnother Jurisdiction: Choice of Law and the Exclusionary Rule, 10 U.S.F.L. Rev. 67, 91 (1975). Mirroring federal law, Arizona courts have consistently held that the primary purpose of the exclusionary rule is to deter future police misconduct. See State v. Weakland, 246 Ariz. 67, 69, ¶ 6 (2019).

¶26 In this case, the blood draw occurred in Nevada and Officer Reinmuth used NHP protocol in collecting the sample. Officer Perea merely sent a request through DPS dispatch to Nevada dispatch, providing no direction about the procedure the Nevada officer should employ to collect Havatone’s blood sample. Nothing in the record shows that Officer Reinmuth acted as an agent of Arizona law enforcement or that Officer Perea intended to bypass a more protective state law. See Boyd, 992 A.2d at 1084-86 (finding no agency relationship where officers were merely present during an out-of-state search and record did not show they intended to skirt their state’s law); State v. Brown, 940 P.2d 546, 589-90 (Wash. 1997) (finding no agency relationship where officers “merely telephoned” another jurisdiction and asked them to question a suspect). Moreover, Officer Reinmuth’s conduct was authorized by Nevada law at the time of the blood draw. Infra ¶¶ 30-32.

¶27 For these reasons, we adopt the reasoning in Boyd, Pooley, and Blair. Although the blood draw would have violated Arizona law, it was lawful under Nevada law and exclusion would not serve the purpose of our exclusionary rule.

This entry was posted in Choice of law, Drug or alcohol testing, Exclusionary rule, Good faith exception. Bookmark the permalink.

Comments are closed.