State of Arizona v. Nelson Ivan Boteo-Flores

SUPREME COURT OF ARIZONA
En Banc

THE STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-11-0180-PR
Appellee, )
) Court of Appeals
v. ) Division Two
) No. 2 CA-CR 10-0106
NELSON IVAN BOTEO-FLORES, )
) Pima County
Appellant. ) Superior Court
) No. CR20092575002
)
)
) O P I N I O N
__________________________________)

Appeal from the Superior Court in Pima County
The Honorable Terry L. Chandler, Judge
________________________________________________________________

Memorandum Decision of the Court of Appeals Division Two
Filed Apr. 12, 2011

VACATED AND REMANDED
________________________________________________________________

THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation
Amy Thorson, Assistant Attorney General Tucson
Attorneys for State of Arizona

ROBERT J. HIRSH, PIMA COUNTY PUBLIC DEFENDER Tucson
By Lisa M. Hise, Deputy Public Defender
Attorney for Nelson Ivan Boteo-Flores
________________________________________________________________

B R U T I N E L, Justice

¶1 Nelson Boteo-Flores was detained by police during a

stolen vehicle investigation. We consider here whether a lawful
investigative stop had become a de facto arrest before Boteo-

Flores confessed to the crime. Based on the totality of the

circumstances, we find a de facto arrest.

I. FACTS AND PROCEDURAL HISTORY

¶2 Tucson police officers went to an apartment complex

and saw a black pickup truck matching the description of a

stolen vehicle.1 The officers took up surveillance positions to

watch the truck and the apartment complex driveway.

¶3 A maroon car pulled into the driveway of the complex.

Its lone occupant was the driver, who was talking on a cell

phone and then used binoculars to look up and down the street a

few times before driving away. A few minutes later the car

returned, this time with three occupants, who the officer could

not identify. The car drove to the back of the complex and out

of sight.

¶4 Several minutes later, Boteo-Flores walked down the

driveway, stood at the edge of the street, and looked up and

down the street several times. The person who had driven the

car then drove the black pickup truck from the complex. As he

approached the street, the driver slowed and shouted to Boteo-

Flores, who did not respond. All but one of the surveilling

officers unsuccessfully pursued the truck; it was later found

1
We consider only the evidence presented at the suppression
hearing. State v. Blackmore, 186 Ariz. 630, 631, 925 P.2d 1347,
1348 (1996).
2
unoccupied.

¶5 While the pursuit was underway, the remaining officer

approached Boteo-Flores. Because there was at least one other

person unaccounted for from the maroon car and the officer did

not know if Boteo-Flores was armed, the officer handcuffed him.

He did not frisk Boteo-Flores or ask him if he had a weapon.

¶6 After handcuffing Boteo-Flores, the officer advised

him of his Miranda rights and began questioning him. Shortly

thereafter, a police unit returned and the officers called an

auto theft detective to assist with the investigation. Boteo-

Flores was left handcuffed and standing by a police car for at

least fifteen minutes, until the detective arrived. The record

does not reveal what the other officers were doing during this

time or why Boteo-Flores remained handcuffed.

¶7 After arriving, the detective was briefed by the

officers at the scene for another fifteen minutes. He then

advised Boteo-Flores of his Miranda rights and began

interviewing him. The detective arrested Boteo-Flores based on

his admissions during the interview.

¶8 Boteo-Flores was indicted for facilitating the theft

of a means of transportation, a class six felony. He moved to

suppress his statements, arguing that his initial detention was

not supported by reasonable suspicion and, alternatively, that

the initial detention had become a de facto arrest unsupported
3
by probable cause before he was interrogated. The State

countered that reasonable suspicion supported the stop and that,

although there was no probable cause to arrest until he made

incriminating statements, the detention never became a de facto

arrest. After an evidentiary hearing, the trial court denied

the motion. A jury found Boteo-Flores guilty, and the trial

court sentenced him to prison for the presumptive term of 1.75

years.

¶9 The court of appeals affirmed the conviction and

sentence. State v. Boteo-Flores, 2 CA-CR 10-0106, 2011 WL

1379805 (Ariz. App. Apr. 12, 2011) (mem. decision). The court

determined that the record supported “the [trial] court’s

finding that the officer had a reasonable, articulable suspicion

that Boteo-Flores was involved in criminal activity.” Id. at *2

¶ 8. Although the court deemed it a “close question” whether a

de facto arrest had thereafter occurred, it concluded that the

trial “court did not abuse its discretion in determining Boteo-

Flores was not under arrest” because “[t]he officer acted

reasonably to protect his own safety and to prevent Boteo-Flores

from fleeing, and he diligently pursued the purpose of the

stop.” Id. at *3 ¶ 12.

¶10 We granted review to consider relevant factors in

determining when a lawful detention becomes a de facto arrest,

an issue of statewide importance. We have jurisdiction pursuant
4
to Article 6, Section 5(3) of the Arizona Constitution and

A.R.S. § 12–120.24 (2003).

II. DISCUSSION

¶11 Police officers may briefly detain an individual who

they have reasonable suspicion to believe is involved in a

crime. Terry v. Ohio, 392 U.S. 1, 27 (1968). In assessing the

reasonableness of a Terry stop, we examine “(1) whether the

facts warranted the intrusion on the individual’s Fourth

Amendment rights, and (2) whether the scope of the intrusion was

reasonably related to the circumstances which justified the

interference in the first place.” State v. Jarzab, 123 Ariz.

308, 310, 599 P.2d 761, 763 (1979) (internal citation omitted);

see Terry, 392 U.S. at 20. A valid Terry stop, however, can

later become a de facto arrest. See State v. Blackmore, 186

Ariz. 630, 633-34, 925 P.2d 1347, 1350-51 (1996). “Whether an

illegal arrest occurred is a mixed question of fact and law”

that we review de novo. Id. at 632, 925 P.2d at 1349.

¶12 Boteo-Flores first argues that the officer lacked

reasonable suspicion to detain him. Reasonable suspicion

requires “a particularized and objective basis for suspecting

that a person is engaged in criminal activity.” State v.

O’Meara, 198 Ariz. 294, 295 ¶ 7, 9 P.3d 325, 326 (2000).

Officers cannot act on a mere hunch, State v. Richcreek, 187

Ariz. 501, 505, 930 P.2d 1304, 1308 (1997), but seemingly
5
innocent behavior can form the basis for reasonable suspicion if

an officer, based on training and experience, can “perceive and

articulate meaning in given conduct[,] which would be wholly

innocent to the untrained observer.” Brown v. Texas, 443 U.S.

47, 52 n.2 (1979). The totality of the circumstances, not each

factor in isolation, determines whether reasonable suspicion

exists. See United States v. Arvizu, 534 U.S. 266, 274-75

(2002) (noting that Terry forbids a “divide-and-conquer

analysis”); O’Meara, 198 Ariz. at 296 ¶ 10, 9 P.3d at 327.

¶13 We agree with the courts below that the officer had

reasonable suspicion to stop Boteo-Flores. The officer had

reliable information that the truck was stolen. He saw

suspicious behavior by the car’s driver, who later drove off in

the stolen truck. The officer’s suspicions were further

justifiably aroused by the timing of Boteo-Flores’s arrival, his

actions, and the truck driver’s shouting to him. The officer

testified that based on his training and experience, he

suspected Boteo-Flores was acting as a lookout. Because this

suspicion was reasonable given the totality of the

circumstances, Boteo-Flores’s initial detention was legal. See,

e.g., Terry, 392 U.S. at 5-6, 28.

¶14 What happened subsequently, however, presents a

different question. Although “[t]here is no bright line that

distinguishes a valid Terry stop” from a de facto arrest, “Terry
6
stops must be tailored to fit the exigencies of particular

situations.” United States v. Pontoo, 666 F.3d 20, 30 (1st Cir.

2011). “[W]hether the scope of an investigatory stop is

reasonable demands careful consideration of the totality of the

circumstances.”2 Id. “[A]n investigative detention must be

temporary and last no longer than is necessary to effectuate the

purpose of the stop.” Florida v. Royer, 460 U.S. 491, 500

(1983) (plurality opinion).

¶15 United States v. Sharpe, 470 U.S. 675 (1985),

clarified that there is no rigid time limit for a Terry stop and

the appropriate query is “whether the police diligently pursued

a means of investigation that was likely to confirm or dispel

their suspicions quickly, during which time it was necessary to

detain the defendant.” Id. at 686. The Court cautioned that in

assessing the reasonableness of a detention, courts should

“consider whether the police are acting in a swiftly developing

situation, and in such cases the court should not indulge in

unrealistic second-guessing.” Id. It noted that “[t]he

question is not simply whether some other alternative was

2
Although we have suggested in the past that the test is
“whether a reasonable person, innocent of any crime, would
reasonably believe that he was being arrested,” State v.
Winegar, 147 Ariz. 440, 448, 711 P.2d 579, 587 (1985), the
Supreme Court has indicated that the appropriate focus is on the
totality of the circumstances and reasonableness of the
officer’s actions. See United States v. Sharpe, 470 U.S. 675,
685 (1985). Whether a reasonable person would believe he or she
was being arrested is but one factor to consider.
7
available, but whether the police acted unreasonably in failing

to recognize or to pursue it.” Id. at 687; cf. State v.

Spreitz, 190 Ariz. 129, 143-44, 945 P.2d 1260, 1274-75 (1997)

(finding forty-five minute detention of blood-smeared defendant,

who voluntarily cooperated with police and was not restrained,

“no more than that necessary to accomplish a reasonable

investigation of the unusual circumstances the officers

encountered”).

¶16 Here, the State, whose burden it is to demonstrate

that the continued detention was reasonable, presented no

evidence to meet that burden. See Royer, 460 U.S. at 500 (“It

is the State’s burden to demonstrate that the seizure it seeks

to justify on the basis of reasonable suspicion was sufficiently

limited in scope and duration to satisfy the conditions of an

investigative seizure.”). Although Boteo-Flores was properly

detained and questioned initially, he remained handcuffed for

another thirty to forty minutes after the other officers

returned. The State does not suggest that probable cause

supported that continued detention, and nothing in the record

explains why it was reasonable to detain him in handcuffs to

await interrogation by the detective.

¶17 Nor has the State explained why it was necessary to

wait for a detective to question Boteo-Flores. Although an

extended detention might be reasonable under Terry while
8
officers await specialized equipment such as a drug sniffing

dog, see, e.g., State v. Teagle, 217 Ariz. 17, 26-27 ¶¶ 33-37,

170 P.3d 266, 275-76 (App. 2007) (concluding one hour and forty

minute detention to wait for drug sniffing dog reasonable), such

concerns do not justify the continued detention here. Nothing

in the record shows any reason for detaining Boteo-Flores to

await the detective’s arrival.

¶18 To be sure, it may be reasonable for an officer

initiating a Terry stop to wait for another officer. But the

record must reflect the reason. The officers at the scene had

the information about the stolen vehicle and actually observed

Boteo-Flores’s suspicious actions. Nothing in the record

suggests why the detective was necessary to question Boteo-

Flores for purposes of completing the investigative stop.

¶19 The trial court and court of appeals relied on State

v. Blackmore, 186 Ariz. 630, 925 P.2d 1347 (1996), in

determining that the officer acted reasonably in handcuffing and

detaining Boteo-Flores throughout the investigation. But that

case focused on the initial use of handcuffs after an officer

detained a suspect and not their continued use once the

officer’s safety concerns were allayed. Id. at 631, 925 P.2d at

1348. Significantly, the restraint and detention in Blackmore

lasted “for only a few minutes,” 186 Ariz. at 633, 925 P.2d at

1350, but Boteo-Flores was detained in handcuffs for
9
considerably longer, with no articulated concerns for preserving

officer safety or preventing him from fleeing.

¶20 Blackmore does not control our analysis in this case.

The detaining officer was justified in initially handcuffing

Boteo-Flores because the officer was alone and did not know

whether Boteo-Flores was armed. That threat clearly ended when

the other officers returned. Boteo-Flores was compliant and

nothing indicates he had a weapon; he was not even frisked.

Although the use of handcuffs does not automatically transform a

Terry stop into an arrest, see Blackmore, 186 Ariz. at 633-34,

925 P.2d at 1350-51, their continued use when no ongoing threat

exists suggests the detainee is under arrest. See United States

v. Bautista, 684 F.2d 1286, 1289-90 (9th Cir. 1982); cf. State

v. Buti, 964 P.2d 660, 664 (Idaho 1998) (finding the use of

handcuffs and removal of suspects at gunpoint transformed stop

into an arrest when several officers were present, there was no

indication that the suspects were armed, and suspects were

compliant). The State argues that the continued use of

handcuffs was justified because at least one passenger from the

car had not been located. But any threat based on the unknown

whereabouts of another possible suspect, without more, was

purely speculative.

¶21 The lack of evidence that officers acted diligently in

investigating Boteo-Flores’s connection to the stolen pickup
10
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. The State conceded that police

officers did not have probable cause to arrest Boteo-Flores

until he confessed to the detective.

¶22 Even when a confession results from an illegal arrest,

however, it need not be suppressed if it “was ‘sufficiently an

act of free will to purge the primary taint of the unlawful

invasion.’” State v. Reffitt, 145 Ariz. 452, 457, 702 P.2d 681,

686 (1985) (quoting Wong Sun v. United States, 371 U.S. 471, 488

(1963)); see also Brown v. Illinois, 422 U.S. 590, 602 (1975).

The State argues that the confession here was sufficiently

attenuated from the illegal arrest; Boteo-Flores argues that the

State waived this issue by not raising it below. These

arguments were not considered in the decision below and should

be addressed by the court of appeals in the first instance.

III. CONCLUSION

¶23 For the foregoing reasons, we vacate the decision of

the court of appeals and remand the case to that court for

further proceedings consistent with this opinion.

_____________________________________
Robert M. Brutinel, Justice

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CONCURRING:

_____________________________________
Rebecca White Berch, Chief Justice

_____________________________________
W. Scott Bales, Vice Chief Justice

_____________________________________
A. John Pelander, Justice

_____________________________________
*

*
Before his resignation on June 27, 2012, as a result of his
appointment to the United States Court of Appeals for the Ninth
Circuit, Justice Andrew D. Hurwitz participated in this case,
including oral argument, and concurred in this opinion’s
reasoning and result. 
12