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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

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

2

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).
STATE v. BUSTOS

Decision of the Court

3

¶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
STATE v. BUSTOS

Decision of the Court

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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, 
STATE v. BUSTOS

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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 redirectexamination 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 
STATE v. BUSTOS

Decision of the Court

6

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 
STATE v. BUSTOS

Decision of the Court

7

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. 
STATE v. BUSTOS

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CONCLUSION

¶25 For the foregoing reasons, we affirm.