author: Becker, J.

text:
    STATE of Washington, Respondent, v. David Wayne LEMKE, Appellant.
    No. 76633-3-I
    Court of Appeals of Washington, Division 1.
    Filed December 3, 2018 Publication Ordered January 7, 2019
    Jan Trasen, Attorney at Law, Washington Appellate Project, 1511 Third Avenue, Suite 610, Seattle, WA, 98101-3647, for Appellant.
    Francesca Morvarid Yahyavi, Snohomish County Prosecutors Office, Prosecuting Attorney Snohomish, Snohomish County Prosecuting Attorney, 3000 Rockefeller Ave. M/s 504, Everett, WA, 98201-4046, for Respondent.
   Becker, J.

¶ 1 Appellant David Lemke seeks reversal of the standard range sentence that was imposed when he was terminated from drug court. He argues that the trial court failed to consider his eligibility for a residential DOSA (Drug Offender Sentencing Alternative). Because the record indicates that the judge's refusal to consider a DOSA was influenced by personal animus toward the defendant, we reverse and remand for resentencing before a different judge.

¶ 2 On January 4, 2017, the State filed an amended information charging Lemke with two counts of possession of methamphetamine and one count of shoplifting (retail theft with special circumstances), stemming from arrests two months earlier. Lemke pleaded not guilty. He was admitted to Adult Drug Treatment Court that same day. He signed an agreement stating that if he was terminated from drug court, a judge, not a jury, would decide his guilt and the State would recommend a sentence of 24 months' incarceration and 12 months' community custody.

¶ 3 Lemke appeared for progress hearings. The record of these hearings shows the judge becoming increasingly pessimistic about the chances of Lemke's success in drug court and increasingly disappointed with Lemke's lack of commitment to the goal of staying clean and sober. During hearings to assess Lemke's progress, the court admonished him for missing treatment sessions and having "dirty" and diluted urinalysis results, among other problems. Lemke gave excuses the judge found unpersuasive. The judge sanctioned Lemke with brief jail stays and work crew and ordered him to attend daily treatment meetings. The judge warned Lemke that if he did not change his behavior, he would be terminated from drug court.

¶ 4 During a hearing on February 24, 2017, Lemke reported that he had a sore shoulder from being on work crew. The judge told him he could "stop with the shoulder bullshit now." Lemke admitted he had been drinking and said he needed anger management counseling. The judge said, "I think you're a fucking addict and maybe you need treatment. I don't think it's got nothing to do with anger management. You think I'll give you anger management and that's going to get you clean and sober? ... What the hell are you talking about?" The judge said, "You can't even give me a clean date you're so fucked up."

¶ 5 On March 3, 2017, the judge discussed with Lemke the results of two "diluted" urinalysis results that indicated Lemke was masking his continuing drug use. The judge said, "I'm starting to get a little bit pissed as I think about it more and more. I'd rather you just use rather than lie to me through masking."

¶ 6 Later that month, Lemke missed a court date. The court issued a warrant for his arrest. Lemke tried to quash the warrant during a court hearing on March 15, 2017. The judge asked Lemke if he was "on oxycodone." Lemke responded, "Yeah." The judge told Lemke that the warrant would not be quashed and he would be taken into custody and "terminated from drug court." At another hearing two days later, the judge explained that he believed Lemke was lying about why he missed the court date. He said to Lemke, "You're a manipulator.... And I am done with you." He ordered Lemke to return in a week for termination from drug court and sentencing. The judge noted that the charges against Lemke were two counts of possession of a controlled substance and shoplifting. "So not only is he an addict, he's also a liar and thief. Done."

¶ 7 At the hearing a week later on March 24, 2017, the judge articulated his reasons for terminating Lemke from drug court: "Continued use, lying to the Court, inability to follow protocols." The judge then found Lemke guilty of the charged crimes.

¶ 8 At this point, defense counsel interjected, "Before we proceed, the one thing that we ought to observe is that he is eligible for a residential DOSA." DOSA stands for Drug Offender Sentencing Alternative. A residential DOSA is a treatment-based alternative to a standard range sentence available to nonviolent drug offenders when deemed appropriate by the trial court. RCW 9.94A.660(3). The judge said, "I'm not giving him a residential DOSA."

¶ 9 The judge imposed a standard range sentence of 24 months' confinement and 12 months' community custody. He remarked on Lemke's 30-year criminal history beginning at age 14. "You, sir, are just a criminal, that's all you are, you're just a criminal. Do you have issues? Yep, you do. Are you going to deal with them? No, you're not.... You, the odds say, are going to die in prison."

¶ 10 Lemke appeals his sentence.

¶ 11 Generally, a court's decision whether to grant a DOSA is not reviewable. State v. Grayson, 154 Wn.2d 333, 338, 111 P.3d 1183 (2005). Exceptions are if the trial court refused to exercise discretion at all or relied on an impermissible basis in making the decision. State v. Garcia-Martinez, 88 Wn. App. 322, 330, 944 P.2d 1104 (1997), review denied, 136 Wn.2d 1002, 966 P.2d 902 (1998). "While no defendant is entitled to an exceptional sentence below the standard range, every defendant is entitled to ask the trial court to consider such a sentence and to have the alternative actually considered." Grayson, 154 Wn.2d at 342, 111 P.3d 1183. A trial court's failure to meaningfully consider a sentencing alternative is reversible error. Grayson, 154 Wn.2d at 342, 111 P.3d 1183.

¶ 12 Lemke contends the judge denied his request for a DOSA without a meaningful inquiry, based in part on openly expressed personal animosity toward Lemke. The State responds that it is "clear" that the court grounded its denial in an assessment that Lemke was not amenable to treatment.

¶ 13 Judges have a duty to conduct themselves with respect for those they serve, including the litigants who come before them. "A judge who manifests bias or prejudice in a proceeding impairs the fairness of the proceeding and brings the judiciary into disrepute." Code of Judicial Conduct, Canon 2 cmt. 1. Epithets and slurs are manifestations of bias or prejudice. Code of Judicial Conduct, Canon 2 cmt 2.

¶ 14 No judge wielding the power of the State in any courtroom has any good reason to call a litigant a "fucking addict" and "just a criminal." The judge's manifestation of personal animosity toward Lemke is not something we can write off as a byproduct of the informal and confrontational culture of drug court. A "fair trial in a fair tribunal is a basic requirement of due process." In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955). The sentence must be reversed. ¶ 15 At resentencing, the court will follow State v. Ramirez, 191 Wash.2d 732, 426 P.3d 714 (2018), in imposing legal financial obligations. In response to a supplemental assignment of error and supplemental brief filed by Lemke concerning Ramirez, the State conceded that the $200 criminal filing fee, the $100 DNA fee, and the $900 drug court fee should not be imposed.

¶ 16 Reversed and remanded for resentencing before a different judge.

WE CONCUR:

Smith, J.

Schindler, J.


source: Caselaw Access Project

author: Schindler, J.

license: Public Domain

text:
    CEDAR WEST OWNERS ASSOCIATION, a Washington Nonprofit Corporation, Appellant, v. NATIONSTAR MORTGAGE, LLC, a Delaware Limited Liability Company, Respondent,
    Quality Loan Service Corporation of Washington, a Washington Corporation, Defendant.
    No. 76812-3-I
    Court of Appeals of Washington, Division 1.
    FILED: February 5, 2019
    Michael Alan Padilla, Attorney at Law, Strichartz Aspaas PLLC, 2101 Fourth Avenue, Suite 860, Seattle, WA, 98121, for Appellant.
    Robert William McDonald, Quality Loan Service Corp. of Washington, 108 1st Ave S Ste. 202, Seattle, WA, 98104-2538, Michael John Kapaun, Witherspoon Kelley, 422 W Riverside Ave. Ste. 1100, Spokane, WA, 99201-0300, Steven Joseph Dixson, Attorney at Law, 422 W Riverside Ave. Ste. 1100, Spokane, WA, 99201-0302, for Respondent.
    PUBLISHED OPINION
   Schindler, J.

¶ 1 Cedar West Owners Association appeals dismissal of the quiet title action against Nationstar Mortgage LLC. Cedar West asserts the nonjudicial foreclosure on a deed of trust that secures an installment payment promissory note is barred by the six-year statute of limitations. We reject the argument that the first missed payment on an installment promissory note triggers the six-year statute of limitations to foreclose on the deed of trust. We adhere to our decision in Edmundson v. Bank of America, N.A., 194 Wash. App. 920, 378 P.3d 272 (2016), and hold the six-year statute of limitations on an installment promissory note is triggered by each missed monthly installment payment at the time it is due. We also hold that when a nonjudicial foreclosure action tolls the statute of limitations involves a factual inquiry. In this case, the undisputed record establishes the notice of trustee's sale tolled the statute of limitations and Nationstar Mortgage is entitled to foreclose on the installment payments due on and after November 1, 2010. We affirm dismissal of the quiet title lawsuit against Nationstar Mortgage and the order allowing the trustee to schedule a nonjudicial foreclosure sale.

FACTS

¶ 2 The material facts are not in dispute. In June 2008, Countrywide Bank FSB loaned Judith Allen $158,847 to purchase a condominium unit located at 1910 West Casino Road, Apartment 111, in Everett. Allen agreed to a 30-year mortgage and monthly payments.

¶ 3 On June 16, 2008, Allen signed a promissory note for the loan amount. The promissory note requires Allen to make monthly payments until July 1, 2038. Allen executed a "Deed of Trust" on the condominium unit to secure the promissory note. The Deed of Trust states:

Borrower owes Lender the principal sum of ONE HUNDRED FIFTY EIGHT THOUSAND EIGHT HUNDRED FORTY SEVEN and 00/100 Dollars (U.S. $158,847.00). This debt is evidenced by Borrower's note dated the same date as this Security Instrument ("Note"), which provides for monthly payments, with the full debt, if not paid earlier, due and payable on JULY 01, 2038. This Security Instrument secures to Lender: (a) the repayment of the debt evidenced by the Note, with interest, and all renewals, extensions and modifications of the Note; (b) the payment of all other sums, with interest, advanced under paragraph 7 to protect the security of this Security Instrument; and (c) the performance of Borrower's covenants and agreements under this Security Instrument and the Note. For this purpose, Borrower irrevocably grants and conveys to the Trustee, in trust, with power of sale, the following described property located [at] ... 1910 W CASINO RD APT 111, EVERETT Washington 98204-2114 ("Property Address").

¶ 4 If Allen defaults on the monthly payments, the Deed of Trust gives the lender the discretion to accelerate the debt and gives the borrower the right to reinstate.

9. Grounds for Acceleration of Debt.
(a) Default. Lender may, except as limited by regulations issued by the Secretary, in the case of payment defaults, require immediate payment in full of all sums secured by this Security Instrument if:
(i) Borrower defaults by failing to pay in full any monthly payment required by this Security Instrument prior to or on the due date of the next monthly payment, or
(ii) Borrower defaults by failing, for a period of thirty days, to perform any other obligations contained in this Security Instrument.
....
10. Reinstatement. Borrower has a right to be reinstated if Lender has required immediate payment in full because of Borrower's failure to pay an amount due under the Note or this Security Instrument. This right applies even after foreclosure proceedings are instituted. To reinstate the Security Instrument, Borrower shall tender in a lump sum all amounts required to bring Borrower's account current including, to the extent they are obligations of Borrower under this Security Instrument, foreclosure costs and reasonable and customary attorneys' fees and expenses properly associated with the foreclosure proceeding. Upon reinstatement by Borrower, this Security Instrument and the obligations that it secures shall remain in effect as if Lender had not required immediate payment in full. However, Lender is not required to permit reinstatement if: (i) Lender has accepted reinstatement after the commencement of foreclosure proceedings within two years immediately preceding the commencement of a current foreclosure proceeding, (ii) reinstatement will preclude foreclosure on different grounds in the future, or (iii) reinstatement will adversely affect the priority of the lien created by this Security Instrument.[ ]

The Deed of Trust designates LS Title of Washington as the "Trustee" and Mortgage Electronic Registration Systems Inc. as the beneficiary "solely as nominee for Lender."

¶ 5 The Deed of Trust incorporates a "Condominium Rider." Allen executed the Condominium Rider on June 16, 2008 and agreed to "pay all dues and assessments imposed pursuant to the legal instruments creating and governing" Cedar West Condominiums. The Deed of Trust and Condominium Rider were recorded on July 10, 2008.

¶ 6 Allen made monthly payments on the promissory note through May 2010. Allen did not make the June 1, 2010 payment or any of the following monthly payments. Allen also stopped paying condominium dues and assessments.

¶ 7 Cedar West Owners Association (Cedar West) foreclosed its lien for unpaid dues and assessments Allen owed in the amount of $17,371.34. Cedar West bid the amount owed at the foreclosure. As the highest bidder, Cedar West acquired title to the condominium unit. Cedar West recorded a "Trustee's Deed" on April 24, 2015. Cedar West rents the condominium unit.

¶ 8 In September 2015, the lender appointed Quality Loan Service Corporation of Washington (Quality Loan) as the successor Trustee under the Deed of Trust. On October 7, 2015, Quality Loan sent a notice of default to Allen. The notice of default states Allen is in default on the obligation secured by the promissory note and Deed of Trust. The notice states Allen is in arrears and had not paid principal and interest from June 1, 2010 through October 15, 2015 in the amount of $71,460.38; advances and late charges of $567.90; and "other charges, costs and fees" of $960.64.

¶ 9 The notice of default states the failure to either reinstate or cure the default within 30 days by paying $72,988.92 "may lead to recordation, transmittal and publication of a Notice of Sale" and sale of the condominium unit "at public auction."

REINSTATEMENT: IMPORTANT! PLEASE READ!
UNTIL SUCH TIME AS A NOTICE OF TRUSTEE'S SALE IS RECORDED, THE ESTIMATED TOTAL AMOUNT NECESSARY TO REINSTATE YOUR NOTE AND DEED OF TRUST IS THE SUM OF PARAGRAPHS 2 AND 3 IN THE AMOUNT OF $72,988.92 , PLUS ANY MONTHLY PAYMENTS, LATE CHARGES, OR BENEFICIARY COSTS WHICH HAVE BECOME DUE SINCE THE DATE OF THIS NOTICE OF DEFAULT. Any new defaults not involving payment of money that occur after the date of this notice must also be cured in order to effect reinstatement. In addition, because some of the charges can only be estimated at this time, and because the amount necessary to reinstate may include presently unknown expenditures required to preserve the property or to comply with state or local law, it will be necessary for you to contact the trustee before the time you tender reinstatement so that you may be advised of the exact amount you will be required to pay. [ ]

¶ 10 In July 2016, the lender assigned the promissory note and the Deed of Trust to Nationstar Mortgage LLC (Nationstar).

¶ 11 On October 18, 2016, Quality Loan recorded the "Notice of Trustee's Sale." The notice states condominium unit 111 located at 1910 West Casino Road is subject to a Deed of Trust recorded on June 16, 2008 and the amount in arrears is $97,163.75. The notice states the sale will be discontinued if the amount in default is paid 11 days before the sale date of February 24, 2017.

NOTICE OF TRUSTEE'S SALE
....
....
III. The default(s) for which this foreclosure is made is/are as follows: Failure to pay when due the following amounts which are now in arrears: $97,163.75.
IV. The sum owing on the obligation secured by the Deed of Trust is: The principal sum of $155,048.43 , together with interest as provided in the Note from 5/1/2010 on, and such other costs and fees as are provided by statute.
V. The above-described real property will be sold to satisfy the expense of sale and the obligation secured by the Deed of Trust as provided by statute. Said sale will be made without warranty, expressed or implied, regarding title, possession or encumbrances on 2/24/2017 . The defaults referred to in Paragraph III must be cured by 2/13/2017 (11 days before the sale date), or by other date as permitted in the Note or Deed of Trust, to cause a discontinuance of the sale. The sale will be discontinued and terminated if at any time before 2/13/2017 (11 days before the sale), or by other date as permitted in the Note or Deed of Trust, the default as set forth in Paragraph III is cured and the Trustee's fees and costs are paid.
....
THIS NOTICE IS THE FINAL STEP BEFORE THE FORECLOSURE OF YOUR HOME.
You have only 20 DAYS from the recording date of this notice to pursue mediation.[ ]

¶ 12 On February 10, 2017, Cedar West filed a lawsuit against Quality Loan and Nationstar to quiet title to the property and enjoin the trustee's sale. Cedar West alleged the six-year statute of limitations barred the nonjudicial foreclosure. The court entered an order enjoining the foreclosure.

¶ 13 Cedar West stipulated Quality Loan would not participate in the litigation but "shall be bound by whatever order or judgment is issued in the Action by the Court regarding the Property and Deed of Trust."

¶ 14 Nationstar filed a CR 12(b)(6) motion to dismiss the lawsuit. Nationstar argued the six-year statute of limitations does not bar the nonjudicial foreclosure action. Nationstar asserted the six-year statute of limitations on an installment promissory note begins to run when the borrower does not pay the amount due for each monthly installment payment.

¶ 15 Cedar West argued there is no dispute Allen defaulted on her obligation under the promissory note. Cedar West claimed the six-year statute of limitations is triggered when Allen did not make the first missed installment payment on June 1, 2010. Cedar West asserted that because the Trustee did not record the Notice of Trustee's Sale until October 18, 2016, the six-year statute of limitations barred the nonjudicial foreclosure action.

¶ 16 The court dismissed the lawsuit against Nationstar with prejudice, dissolved the injunction restraining the trustee's sale, and entered an order allowing a trustee's sale on the property.

ANALYSIS

¶ 17 Cedar West contends the court erred in dismissing the lawsuit against Nationstar to quiet title and restrain foreclosure and the trustee's sale.

¶ 18 We review the decision to dismiss under CR 12(b)(6) de novo as a question of law. FutureSelect Portfolio Mgmt., Inc. v. Tremont Grp. Holdings, Inc., 180 Wash.2d 954, 962, 331 P.3d 29 (2014). Where, as here, a party submits evidence that was not in the original complaint, such submissions convert a motion to dismiss to a motion for summary judgment. McAfee v. Select Portfolio Servicing, 193 Wash. App. 220, 226, 370 P.3d 25 (2016).

¶ 19 We review summary judgment dismissal de novo. Kofmehl v. Baseline Lake, LLC, 177 Wash.2d 584, 594, 305 P.3d 230 (2013). Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. CR 56(c) ; Kofmehl, 177 Wash.2d at 594, 305 P.3d 230.

¶ 20 Cedar West claims it is entitled to quiet title to the condominium because the six-year statute of limitations bars foreclosure of the Deed of Trust that secures the promissory note. RCW 7.28.300 provides:

The record owner of real estate may maintain an action to quiet title against the lien of a mortgage or deed of trust on the real estate where an action to foreclose such mortgage or deed of trust would be barred by the statute of limitations.

¶ 21 An action on a contract or agreement in writing "shall be commenced within six years." RCW 4.16.040(1). The promissory note and the deed of trust are written contracts subject to the six-year statute of limitations under RCW 4.16.040(1). Edmundson v. Bank of Am., N.A., 194 Wash. App. 920, 927, 378 P.3d 272 (2016) ; Merceri v. Bank of N.Y. Mellon, 4 Wash. App. 2d 755, 759, 434 P.3d 84 (2018) ; Westar Funding, Inc. v. Sorrels, 157 Wash. App. 777, 784, 239 P.3d 1109 (2010).

¶ 22 An action "can only be commenced" within six years "after the cause of action has accrued." RCW 4.16.005. The six-year statute of limitations on a deed of trust accrues "when the party is entitled to enforce the obligations of the note." Wash. Fed., Nat'I Ass'n v. Azure Chelan LLC, 195 Wash. App. 644, 663, 382 P.3d 20 (2016).

¶ 23 Cedar West contends the six-year statute of limitations on the promissory note begins to run on the date of the first missed payment on June 1, 2010 and bars foreclosure on the Deed of Trust that secured the promissory note. We considered and rejected the same argument in Edmundson.

¶ 24 In Edmundson, we considered when the six-year statute of limitations period begins on a deed of trust payable in installments. The borrowers argued the statute of limitations for all sums owed on an installment note accrued on the date of the first missed payment. Edmundson, 194 Wash. App. at 929, 378 P.3d 272.

¶ 25 We addressed the dispositive distinction between a demand promissory note and an installment promissory note. Edmundson, 194 Wash. App. at 927-32, 378 P.3d 272. A demand promissory note is payable on the date of execution. Edmundson, 194 Wash. App. at 929, 378 P.3d 272.

"An instrument is payable immediately if no time is fixed and no contingency specified upon which payment is to be made. A demand note is payable immediately on the date of its execution-that is, it is due upon delivery thereof; and, unless a statute declares otherwise, or a contrary intention appears expressly or impliedly upon the face of the instrument, a right of action against the maker of a demand note arises immediately upon delivery and no express demand is required to mature the note or as a prerequisite to such right to action, commencement of a suit being sufficient demand for enforcement purposes."

Edmundson, 194 Wash. App. at 929, 378 P.3d 272 (quoting GMAC v. Everett Chevrolet, Inc., 179 Wash. App. 126, 135, 317 P.3d 1074, review denied, 181 Wash.2d 1008, 335 P.3d 941 (2014) ).

¶ 26 Relying on the Washington Supreme Court decision in Herzog v. Herzog, 23 Wash.2d 382, 161 P.2d 142 (1945), we concluded that unlike a demand note, the six-year statute of limitations on an installment promissory note accrues for each monthly installment from the time it becomes due. Edmundson, 194 Wash. App. at 930, 378 P.3d 272 (citing Herzog, 23 Wash.2d at 388, 161 P.2d 142 ).

In Herzog v. Herzog, the supreme court addressed when the six-year statute of limitations on a written agreement accrues. The court first distinguished a demand note from an installment note. The court stated that the statute of limitation accrues on a demand note when it is executed.
But the obligation before the supreme court in that case was not a demand note. The note before the court provided for installment payments. Accordingly, the court held that "when recovery is sought on an obligation payable by installments, the statute of limitations runs against each installment from the time it becomes due; that is, from the time when an action might be brought to recover it."

Edmundson, 194 Wash. App. at 930 , 378 P.3d 272 (quoting Herzog, 23 Wash.2d at 388, 161 P.2d 142 ).

¶ 27 We adhere to the decision in Edmundson and hold the statute of limitations accrues for each monthly installment from the time it becomes due. See also Merceri, 4 Wash. App. 2d at 759, 434 P.3d 84 ; accord 25 DAVID K. DEWOLF, KELLER W. ALLEN, & DARLENE BARRIER CARUSO, WASHINGTON PRACTICE: CONTRACT LAW AND PRACTICE § 16:21, at 511 (3d ed. 2014) ("Where a contract calls for payment of an obligation by installments, the statute of limitations begins to run for each installment at the time such payment is due."); 31 RICHARD A. LORD, WILLISTON ON CONTRACTS § 79:17, at 338 (4th ed. 2004) ("A separate cause of action arises on each installment, and the statute of limitations runs separately against each, except where the creditor has a right to accelerate payments on default and does so."); 18 WILLIAM B. STOEBUCK & JOHN W. WEAVER, WASHINGTON PRACTICE: REAL ESTATE: TRANSACTIONS § 20.10, at 61 (2d ed. Supp. 2018) ("Where there has been no explicit acceleration of the note, the statute of limitations does not run on the entire amount due and non-judicial foreclosure can be begun within six years of any particular installment default and the amount due can be the then principal amount owing."). Because Allen did not pay the monthly installment amount due on June 1, 2010 or thereafter, the statute of limitations for each missed payment accrued and the six-year statute of limitations began to run on the date the payment was due.

¶ 28 Cedar West cites RCW 4.16.170 to argue a nonjudicial foreclosure action does not toll the statute of limitations. RCW 4.16.170 states, in pertinent part, "For the purpose of tolling any statute of limitations an action shall be deemed commenced when the complaint is filed or summons is served whichever occurs first." Cedar West asserts that because a nonjudicial foreclosure action is not commenced by filing a complaint or serving a summons, a nonjudicial foreclosure action does not toll the statute of limitations. We disagree.

¶ 29 The Deeds of Trust Act (Act), chapter 61.24 RCW, governs actions to enforce a promissory note or other debt instrument that is secured by a deed of trust. Walker v. Quality Loan Serv. Corp. of Wash., 176 Wash. App. 294, 305, 308 P.3d 716 (2013). The Act furthers three basic objectives: an efficient and inexpensive nonjudicial foreclosure process, adequate opportunity to prevent wrongful foreclosure, and promotion of the stability of land titles. Cox v. Helenius, 103 Wash.2d 383, 387, 693 P.2d 683 (1985). Because the Act "dispenses with many protections commonly enjoyed by borrowers under judicial foreclosures, lenders must strictly comply with the statutes and courts must strictly construe the statutes in the borrower's favor." Albice v. Premier Mortg. Servs. of Wash., Inc., 174 Wash.2d 560, 567, 276 P.3d 1277 (2012).

¶ 30 Even if commencement of the nonjudicial foreclosure action tolled the running of the six-year statute of limitations, Cedar West argues the October 18, 2016 Notice of Trustee's Sale and not the October 7, 2015 notice of default tolled the statute of limitations.

¶ 31 RCW 61.24.030 sets forth the mandatory requirements for nonjudicial foreclosure. As a prerequisite to a trustee's sale, the plain language of RCW 61.24.030(8) states the lender or trustee shall transmit a written notice of default to the borrower and grantor at least 30 days before a notice of trustee's sale is recorded. Former RCW 61.24.030 (2012) states, in pertinent part:

It shall be requisite to a trustee's sale:
...
(8) That at least thirty days before notice of sale shall be recorded, transmitted or served, written notice of default shall be transmitted by the beneficiary or trustee to the borrower and grantor at their last known addresses by both first-class and either registered or certified mail, return receipt requested, and the beneficiary or trustee shall cause to be posted in a conspicuous place on the premises, a copy of the notice, or personally served on the borrower and grantor. This notice shall contain the following information:
(a) A description of the property which is then subject to the deed of trust;
(b) A statement identifying each county in which the deed of trust is recorded and the document number given to the deed of trust upon recording by each county auditor or recording officer;
(c) A statement that the beneficiary has declared the borrower or grantor to be in default, and a concise statement of the default alleged;
(d) An itemized account of the amount or amounts in arrears if the default alleged is failure to make payments;
(e) An itemized account of all other specific charges, costs, or fees that the borrower, grantor, or any guarantor is or may be obliged to pay to reinstate the deed of trust before the recording of the notice of sale;
(f) A statement showing the total of (d) and (e) of this subsection, designated clearly and conspicuously as the amount necessary to reinstate the note and deed of trust before the recording of the notice of sale;
(g) A statement that failure to cure the alleged default within thirty days of the date of mailing of the notice, or if personally served, within thirty days of the date of personal service thereof, may lead to recordation, transmittal, and publication of a notice of sale, and that the property described in (a) of this subsection may be sold at public auction at a date no less than one hundred twenty days in the future, or no less than one hundred fifty days in the future if the borrower received a letter under RCW 61.24.031 ;
(h) A statement that the effect of the recordation, transmittal, and publication of a notice of sale will be to (i) increase the costs and fees and (ii) publicize the default and advertise the grantor's property for sale;
(i) A statement that the effect of the sale of the grantor's property by the trustee will be to deprive the grantor of all their interest in the property described in (a) of this subsection;
(j) A statement that the borrower, grantor, and any guarantor has recourse to the courts pursuant to RCW 61.24.130 to contest the alleged default on any proper ground.

¶ 32 The purpose of the notice of default is to notify the debtor that the amount owed is in default and there is a statutory right to cure the default before recording a notice of trustee's sale. Koegel v. Prudential Mut. Sav. Bank, 51 Wash. App. 108, 112, 752 P.2d 385 (1988) ; Leahy v. Quality Loan Serv. Corp. of Wash., 190 Wash. App. 1, 7, 359 P.3d 805 (2015). The written notice of default must provide pertinent information, including "[a]n itemized account of the amount or amounts in arrears" and the right to cure. RCW 61.24.030(8)(a)-(l). The Act does not require the lender or the trustee to record the notice of default.

¶ 33 The notice of trustee's sale "must be recorded to give notice to the world that a foreclosure sale is scheduled for a specific date." Leahy, 190 Wash. App. at 7, 359 P.3d 805. In contrast to the notice of default, the notice of trustee's sale must include the amount in arrears; the right to cure; and the date, time, and location of the trustee's sale. RCW 61.24.040(2)(d).

¶ 34 The trustee may postpone the foreclosure sale for up to 120 days but not beyond the 120-day period. RCW 61.24.040(10). After the 120-day period expires, a new trustee's sale must be scheduled and a new notice of trustee's sale issued and recorded to ensure potential buyers are informed of the new sale date. Leahy, 190 Wash. App. at 7, 359 P.3d 805 ; Albice, 174 Wash.2d at 568, 276 P.3d 1277. The Act does not require the lender to transmit a new notice of default before each new notice of trustee's sale. Leahy, 190 Wash. App. at 5, 359 P.3d 805.

¶ 35 The commencement of a nonjudicial foreclosure proceeding tolls the six-year statute of limitations period. Bingham v. Lechner, 111 Wash. App. 118, 131, 45 P.3d 562 (2002) ; Edmundson, 194 Wash. App. at 930, 378 P.3d 272. The Act requires that at least 30 days elapse after transmitting the notice of default before recording a notice of trustee's sale. But the Act does not establish a deadline for recording the notice of trustee's sale. When the nonjudicial foreclosure action tolls the statute of limitations is a factual inquiry.

¶ 36 Edmundson has been interpreted too broadly to mean filing a notice of default definitively tolls the statute of limitations. In Edmundson, we concluded that transmitting the notice of default shortly before the expiration of the six-year statute of limitations followed by timely recording a notice of trustee's sale "is all that is required under the circumstances of this case." Edmundson, 194 Wash. App. at 930, 378 P.3d 272.

[T]his notice [of default] is evidence of resort to the remedies of the Deeds of Trust Act for the defaults of the Edmundsons under this deed of trust. This preceded the running of the six-year period of the statute of limitations. That is all that is required under the circumstances of this case.

Edmundson, 194 Wash. App. at 930, 378 P.3d 272 (citing RCW 61.24.030(8) ).

¶ 37 In Bingham, we held that recording the notice of trustee's sale tolled the statute of limitations but not indefinitely. Bingham, 111 Wash. App. at 131, 45 P.3d 562. In Bingham, the trustee recorded a notice of trustee's sale but did not hold the trustee's sale. Bingham, 111 Wash. App. at 131, 45 P.3d 562. Because the trustee did not continue the sale, we concluded the statute of limitations restarted either on the date scheduled for the foreclosure or the last day to which it could have been continued, 120 days later. Bingham, 111 Wash. App. at 131, 45 P.3d 562.

¶ 38 We hold that after filing a notice of default, the lender must act diligently to pursue and perfect nonjudicial foreclosure remedies under the Act. Here, the record shows the lender transmitted the notice of default to the borrower on October 7, 2015. The notice states the amount in arrears is $72,988.92. On October 18, 2016, the Trustee recorded the Notice of Trustee's Sale. The Notice of Trustee's Sale states the amount in arrears is $97,163.75. Nationstar concedes nothing in the record shows Nationstar took any steps to pursue nonjudicial foreclosure for over a year after the notice of default was transmitted to the borrower. Because of this unexplained delay and consistent with the statutory right to notice of the amount in default and the right to reinstate and cure, under the circumstances of this case, we conclude the Notice of Trustee's Sale and not the notice of default tolled the statute of limitations. Because the statute of limitations begins to run on each installment payment from the date it is due, Nationstar is entitled to foreclosure on installment payments due on and after November 1, 2010.

¶ 39 We affirm dismissal of the quiet title action and the order allowing the Trustee to schedule the nonjudicial foreclosure sale.

WE CONCUR:

Andrus, J.

Leach, J.

      Boldface in original.

      Emphasis in original; boldface in original.

      Emphasis in original; boldface in original.

      Internal quotation marks omitted.

      Footnote omitted.

      Contrary to the assertion of Cedar West, Herzog and Edmundson did not adopt an exception to the six-year statute of limitations for nonjudicial foreclosure on a deed of trust.

      We recognize the legislative prerogative to establish a deadline.

      Emphasis added.


author: JUSTICE LOPEZ, opinion of the Court: PELANDER, J., dissenting.

text:
    STATE of Arizona, Appellee, v. Courtney Noelle WEAKLAND, Appellant.
    No. CR-17-0615-PR
    Supreme Court of Arizona.
    Filed February 25, 2019
    Mark Brnovich, Arizona Attorney General, Dominic E. Draye, Solicitor General, Joseph T. Maziarz, Chief Counsel, Mariette S. Ambri (argued), Assistant Attorney General, Criminal Appeals Section, Tucson, Attorneys for State of Arizona
    Dean J. Brault, Legal Defender, Robb P. Holmes (argued), Assistant Legal Defender, Pima County Legal Defender's Office, Tucson, Attorneys for Courtney Noelle Weakland
    Mary C. Trejo, Tucson Public Defender, Kristina J. Bohn, Supervising Public Defender, Tucson, Attorneys for Amicus Curiae Tucson Public Defender's Office
    David J. Euchner (argued), Pima County Public Defender's Office, Tucson; and Joseph P. St. Louis, Nesci & St. Louis, P.L.L.C., Tucson, Attorneys for Amici Curiae Arizona Attorneys for Criminal Justice and National College for DUI Defense
    JUSTICE LOPEZ authored the opinion of the Court, in which VICE CHIEF JUSTICE BRUTINEL and JUSTICES TIMMER and GOULD joined. JUSTICE PELANDER dissented. JUSTICE BOLICK, joined by CHIEF JUSTICE BALES, separately dissented.
   JUSTICE LOPEZ, opinion of the Court:

¶1 We here consider whether the good-faith exception to the exclusionary rule applies, in a prosecution for driving under the influence ("DUI"), to admit blood evidence unconstitutionally obtained after State v. Butler , 232 Ariz. 84, 302 P.3d 609 (2013), but before State v. Valenzuela (Valenzuela II ), 239 Ariz. 299, 371 P.3d 627 (2016). We hold that the good-faith exception applies because application of the exclusionary rule in these circumstances would not meaningfully deter police misconduct. Butler did not "unsettle" the law, and it is unreasonable to require police to predict a change in the law when our trial and appellate courts failed to do so.

I.

¶2 In February 2015, an Oro Valley police officer arrested Courtney Weakland for DUI. The officer handcuffed her, put her in the back seat of his patrol car, and read her an "admin per se" form pursuant to A.R.S. § 28-1321. The form provided that Arizona law "require[d]" her to complete certain tests to determine her blood-alcohol concentration ("BAC"). She submitted to a blood draw, which revealed a BAC of .218, nearly three times the legal limit. Weakland was indicted on one count of aggravated DUI while impaired to the slightest degree and one count of aggravated DUI with a BAC of .08 or more.

¶3 Before trial, Weakland moved to suppress all evidence obtained through the warrantless search and seizure of her blood sample, arguing that the "requirement" language in the admin per se admonition coerced her consent. The trial court summarily denied her motion. Weakland was convicted on both counts.

¶4 On appeal, Weakland argued that, pursuant to Valenzuela II , her blood was obtained without a warrant and without valid consent, and that the good-faith exception recognized in Valenzuela II did not apply. The State implicitly conceded on appeal that Weakland's consent to the blood draw was involuntary and, thus, invalid pursuant to Valenzuela II , but argued that the good-faith exception to the exclusionary rule obviated the need to suppress the blood evidence. In a divided opinion, the court of appeals affirmed. State v. Weakland , 244 Ariz. 79, 418 P.3d 446 (App. 2017). The majority reasoned that, because Arizona courts had not held that the admin per se admonition was "coercive, ineffective, or otherwise [affirmatively] negated consent" until Valenzuela II , police acted in good faith when they read it to Weakland after her arrest. See id. at 83 ¶ 19, 85 ¶ 24, 418 P.3d at 450, 452. The dissent argued that although existing precedent may have justified applying the good-faith exception to the defendant's 2012 arrest in Valenzuela II , this Court's 2013 Butler decision placed police on notice before Weakland's 2015 arrest that use of the admin per se admonition was constitutionally suspect. Id. at 85 ¶¶ 27-28, 418 P.3d at 452 (Eckerstrom, C.J., dissenting). The applicability of the good-faith exception to the exclusionary rule for cases involving use of the admin per se admonition after Butler , but before Valenzuela II , is a recurring issue of statewide importance. We have jurisdiction pursuant to article 6, section 5(3) of the Arizona Constitution.

II.

¶5 "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." Valenzuela II , 239 Ariz. at 302 ¶ 9, 371 P.3d at 630. We review de novo the applicability of the good-faith exception. State v. Havatone , 241 Ariz. 506, 509 ¶ 11, 389 P.3d 1251, 1254 (2017).

¶6 "The exclusionary rule, which allows suppression of evidence obtained in violation of the Fourth Amendment, is a prudential doctrine invoked [solely] to deter future violations." Valenzuela II , 239 Ariz. at 308-09 ¶ 31, 371 P.3d at 636-37 (citing Davis v. United States , 564 U.S. 229, 236-37, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011) ). "Exclusion is 'not a personal constitutional right,' nor is it designed to 'redress the injury' occasioned by an unconstitutional search." Davis , 564 U.S. at 236, 131 S.Ct. 2419 (quoting Stone v. Powell , 428 U.S. 465, 486, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976) ). Because "a deterrence purpose can only be served when the evidence to be suppressed is derived from a search which the [police] knew or should have known was unconstitutional under the Fourth Amendment," United States v. Johnson , 457 U.S. 537, 565, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982) (White, J., dissenting), the rule is intended to deter only "deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence." Herring v. United States , 555 U.S. 135, 144, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009). Therefore, "when the police act with an objectively reasonable good-faith belief that their conduct is lawful, or when their conduct involves only simple, isolated negligence," the good-faith exception applies because "the deterrence rationale loses much of its force, and exclusion cannot pay its way." Davis , 564 U.S. at 238, 131 S.Ct. 2419 (internal citations and quotation marks omitted); see also A.R.S. § 13-3925 (codifying good-faith exception to the exclusionary rule).

¶7 "Real deterrent value is a 'necessary condition for exclusion,' but it is not 'a sufficient' one." Davis , 564 U.S. at 237, 131 S.Ct. 2419 (quoting Hudson v. Michigan , 547 U.S. 586, 596, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006) ). "For exclusion to be appropriate, the deterrence benefits of suppression must [also] outweigh its heavy costs." Id. (noting that exclusion's "bottom-line effect, in many cases, is to suppress the truth and set the criminal loose in the community without punishment"). Consequently, exclusion of evidence should be a "last resort." Id. (quoting Hudson , 547 U.S. at 591, 126 S.Ct. 2159 ). The state bears the burden of establishing that the good-faith exception applies. Havatone , 241 Ariz. at 511 ¶ 19, 389 P.3d at 1256.

III.

¶8 This case turns on whether police objectively, reasonably relied on "binding appellate precedent" in using the admin per se admonition at the time of Weakland's arrest after Butler but before Valenzuela II . See Havatone , 241 Ariz. at 512 ¶ 24, 389 P.3d at 1257. Stated differently, we must determine whether the law regarding the admonition was "unsettled" at the time of Weakland's arrest, meaning law enforcement officers could not rely on precedent to authorize the illegal search. Id. at 512-13 ¶ 29, 389 P.3d at 1257-58 (citing Davis , 564 U.S. at 250, 131 S.Ct. 2419 (Sotomayor, J., concurring in the judgment)). When making this assessment, we do not require police to have a "crystal ball" in determining what courts may conclude in future cases but rather require them to act in objectively reasonable reliance on then-existing authority. State v. Jean , 243 Ariz. 331, 343 ¶ 45, 407 P.3d 524, 536 (2018) ; see United States v. Leon , 468 U.S. 897, 919 n.20, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) (stating that the good-faith exception requires that police have "a reasonable knowledge of what the law prohibits").

¶9 Mindful of tension between Havatone and Jean , we clarify the standard for the good-faith exception. We noted in Havatone that " Davis instructs that law enforcement acts in good faith if 'binding appellate precedent specifically authorizes a particular police practice.' " 241 Ariz. at 512 ¶ 24, 389 P.3d at 1257 (quoting Davis , 564 U.S. at 241, 131 S.Ct. 2419 ). Although an accurate statement, Davis did not limit the good-faith exception only to circumstances when appellate precedent specifically authorizes a police practice. In fact, in Jean , we rejected the proposition that "to qualify as 'binding appellate precedent under Davis ,' a case 'must specifically authorize the precise conduct under consideration.' " 243 Ariz. at 343 ¶ 45, 407 P.3d at 536 (quoting United States v. Katzin , 769 F.3d 163, 173-76 (3d Cir. 2014) ). Instead, we concluded that the good-faith exception applies if the search was "conducted in objectively reasonable reliance on ... binding appellate precedent ...." Jean , 243 Ariz. at 343 ¶ 47, 407 P.3d at 536 ; see also Valenzuela II , 239 Ariz. at 309 ¶ 31, 371 P.3d at 637 ("[W]hen 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." (quoting Davis , 564 U.S. at 238, 131 S.Ct. 2419 )). We find Jean 's approach more consistent with Davis 's reasoning and the purpose of the exclusionary rule and the good-faith exception to it. See Davis , 564 U.S. at 240-41, 249, 131 S.Ct. 2419 (reasoning that the exclusionary rule does not apply where police reasonably rely on binding appellate precedent because "[p]olice practices trigger the harsh sanction of exclusion only when they are deliberate enough to yield 'meaningfu[l]' deterrence, and culpable enough to be 'worth the price paid by the justice system' " (alteration in original) (citations omitted)). We see no reason to limit the good-faith exception to police practices that appellate precedent specifically authorizes when the rationale for the exception applies with equal force where binding appellate precedent otherwise supports the practice. To the extent that Havatone and Jean conflict, and despite Justice Bolick's reliance on the "specific authorization" standard, infra ¶¶ 41, 48, we reaffirm Jean 's reasonableness approach.

¶10 Weakland contends that the good-faith exception does not apply in her case because Butler "unsettled" the law. We are unpersuaded. Although in Havatone we embraced the somewhat opaque concept (at least in its application) that the good-faith exception should not apply when the law is "unsettled" as to the constitutionality of a police practice, 241 Ariz. at 512-13 ¶ 29, 389 P.3d at 1257-58, merely branding the state of the law between Butler and Valenzuela II as "unsettled" does not repudiate Arizona's appellate courts' repeated authorization of the admin per se admonition.

¶11 The gravamen of Weakland's argument is that the good-faith exception should not apply to her case because, after Butler , the police should have known that administering the admin per se admonition, pursuant to § 28-1321, would be insufficient as an exception to the Fourth Amendment's warrant requirement or would be insufficient, by itself, to establish voluntary consent to the test. In other words, if Butler did not expressly invalidate use of the admonition, it at least "unsettled" the law. Either way, Weakland contends, Butler put police on notice that use of the form was constitutionally dubious. We disagree.

¶12 The issue in Butler was "whether the Fourth Amendment ... requires that a juvenile arrestee's consent be voluntary to allow a warrantless blood draw." 232 Ariz. at 86 ¶ 1, 302 P.3d at 611. Applying Missouri v. McNeely , 569 U.S. 141, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013), this Court held that the Fourth Amendment requires that, "independent of § 28-1321," an arrestee's consent to a warrantless blood draw be voluntary under the totality of the circumstances. Id. at 88 ¶ 18, 302 P.3d at 613. Although this Court assessed the circumstances under which the juvenile defendant assented to the warrantless blood draw after hearing the admonition, including his age, the duration of his detention, the absence of his parents, and his disquieted demeanor, the sufficiency of consent given in response to the admin per se admonition alone was not otherwise before the Court. Id. at 88-89 ¶¶ 20-21, 302 P.3d at 613-14. Indeed, if it were, the Court could have found the lack of voluntary consent based solely on use of the admonition without discussing other factors. Id. at 91 ¶ 32, 302 P.3d at 616 (Pelander, J., concurring) (noting facts also showed that the juvenile's consent in response to the admonition was voluntary and concluding that "had the juvenile court found [the juvenile's] consent voluntary, I would have had no difficulty affirming that ruling, and I doubt my colleagues would have either"). If anything, Butler emphasizes that the totality of the circumstances must be considered in determining compliance with the Fourth Amendment and illustrates that factors such as a juvenile arrestee's age and circumstances can override what otherwise may have been voluntary consent to a blood test following the admonition. See Butler , 232 Ariz. at 88 ¶ 18, 302 P.3d at 613. But it did not implicitly suggest that consent given in response to the admin per se admonition is involuntary, absent other circumstances, as we later held in Valenzuela II . 239 Ariz. at 301 ¶ 2, 371 P.3d at 629.

¶13 In sum, Butler did not address whether use of the admonition was inherently coercive, did not clearly address its effect, and did not expressly question its validity. In fact, Butler failed to meaningfully acknowledge the two binding appellate cases authorizing use of the language on the admin per se admonition- Campbell v. Superior Court , 106 Ariz. 542, 479 P.2d 685 (1971), and State v. Brito , 183 Ariz. 535, 905 P.2d 544 (App. 1995). Consequently, Butler did not "unsettle" the law because it failed to repudiate Arizona appellate courts' existing authorization for use of the admonition.

¶14 Although Weakland strives to expand Butler 's holding beyond its plain terms, Valenzuela II settles the issue and forecloses Weakland's claim that Butler "unsettled" the law concerning use of the admin per se admonition. In Valenzuela II , this Court held that Campbell and Brito constituted binding appellate precedent, sanctioning the language used on the admin per se admonition, and affirmed that "[w]e neither suggested that the admonition ... misstated the law or was coercive, nor ha[d] this Court ever questioned or overruled Campbell or Brito ." Valenzuela II , 239 Ariz. at 309 ¶ 34, 371 P.3d at 637. In doing so, we rejected the argument that continued use of the admin per se admonition reflected "recurring or systemic negligence" in the wake of Carrillo v. Houser , 224 Ariz. 463, 232 P.3d 1245 (2010). Id. In fact, Valenzuela II expressly declined to fault police for "failing to anticipate that we would disapprove the admin per se [admonition] in the wake of Carrillo " when Carrillo was "not dispositive of the issue" and when Arizona courts had "continued to approve the admonition." Id. Valenzuela II leaves no doubt that, at the time of the decision, Arizona appellate courts had continuously authorized use of the existing admin per se admonition.

¶15 That the defendant's arrest in Valenzuela II preceded Butler , whereas Weakland's arrest followed it, is immaterial to our analysis and conclusion that Arizona's appellate courts continued to authorize use of the admonition at the time of Weakland's arrest. In fact, Valenzuela II cited State v. Oliver , No. 2 CA-CR 2014-0359, 2015 WL 4924747 (Ariz. App. Aug. 18, 2015) (mem. decision), involving a post- Butler DUI arrest and warrantless blood seizure that occurred after Weakland's arrest, to illustrate the proposition that "our courts have continued to approve the admonition." Valenzuela II , 239 Ariz. at 309-10 ¶ 34, 371 P.3d at 637-38. In other words, this Court surveyed the legal landscape pre- and post- Butler and concluded that, until its decision in Valenzuela II , our appellate courts had continued to authorize use of the admonition.

¶16 Indeed, Oliver was only one of several post- Butler appellate decisions sanctioning police use of the admonition. See State v. Valenzuela (Valenzuela I ), 237 Ariz. 307, 310 ¶ 7, 315 ¶ 31, 350 P.3d 811, 814 (App. 2015) ; see also State v. Okken , 238 Ariz. 566, 571 ¶¶ 17-18 & n.1, 364 P.3d 485, 490 (App. 2015) (discussing Butler and the statutory requirement of "actual consent before a warrantless search may be performed," yet failing to mention deficiencies with the admonition and focusing, instead, on "other factors" rendering consent involuntary); State v. Pena , No. 2 CA-CR 2013-0241, 2014 WL 3407343, at *2 ¶¶ 6-8 (Ariz. App. July 10, 2014) (noting Butler 's requirement that a breath test is "subject to the Fourth Amendment's constraints," but citing the admonition as a basis, in part, for valid consent); State v. Figueroa , No. 2 CA-CR 2012-0458, 2014 WL 287959, at *4-5 ¶¶ 19-21 (Ariz. App. Jan. 24, 2014) (mem. decision) (citing Butler as requiring compliance with the Fourth Amendment for blood draws, but finding that defendant consented, in the absence of police force, after hearing the admonition). In each of these cases, the court of appeals concluded "that the defendants' consent, obtained in response to the admonition, was voluntary" considering the totality of the circumstances. See Weakland , 244 Ariz. at 84-85 ¶ 23, 418 P.3d at 451-52. The dissents ignore or dismiss these cases. But if Arizona's appellate courts did not interpret Butler as unsettling the law on the use of the admin per se admonition, it would be unreasonable to fault the police for failing to do so. See Davis , 564 U.S. at 241, 131 S.Ct. 2419 (stating that "penaliz[ing] the officer for the appellate judges' error" "cannot logically contribute to the deterrence of Fourth Amendment violations" (citations omitted)).

¶17 Justice Bolick assails the reasoning and result in Valenzuela II concerning the good-faith exception even as he purports to rely upon it. Specifically, he contends that Valenzuela II 's analysis of Bumper v. North Carolina , 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968), and Schneckloth v. Bustamonte , 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), demonstrates that, after Bumper , police should have known that the admin per se admonition was coercive. See infra ¶ 43 (suggesting that because Bumper and Johnson v. United States , 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948), directed the outcome in Valenzuela II , "[i]t is very difficult to argue" that the holding in Valenzuela II "should have come as a surprise"). Necessarily, he suggests that Valenzuela II wrongly applied the good-faith exception. But Weakland does not urge this Court to overrule Valenzuela II , and we see no reason to revisit its holding here.

¶18 Havatone offers Weakland no safe harbor. In Havatone , this Court declined to apply the good-faith exception to the exclusionary rule when police directed a warrantless blood draw, based on alleged exigent circumstances (dissipation of alcohol in the blood), on an unconscious driver suspected of DUI who had been transported out of Arizona for medical treatment. 241 Ariz. at 508 ¶ 5, 512 ¶ 23, 389 P.3d at 1253, 1257. We reasoned that police "should have known that routinely directing blood draws from DUI suspects who were sent out of state for emergency treatment, without making a case-specific determination whether a warrant could be timely secured, was either impermissible or at least constitutionally suspect" because the police practice had "been discredited for over fifty years." Id. at 511 ¶ 20, 512 ¶ 24, 389 P.3d at 1256, 1257. We noted, further, that "no binding precedents specifically authorized" the police practice. Id. at 512 ¶ 28, 389 P.3d at 1257.

¶19 Here, police operated in a distinctly different legal landscape from that in Havatone . Unlike there, where courts had discredited the police practice for over fifty years and no binding precedents specifically authorized it, Arizona appellate courts had authorized police reliance on the language used in the statutory admin per se admonition for over forty years at the time of Weakland's arrest. And even if Butler presaged future court disavowal of the admonition, it did not foreclose its use. Cf. Leon , 468 U.S. at 919 n.20, 104 S.Ct. 3405 (holding that the good-faith exception requires "a reasonable knowledge of what the law prohibits"). To the contrary, in Butler' s wake, Arizona's trial and appellate courts continued to implicitly or expressly authorize use of the admonition.

IV.

¶20 We reaffirm our conclusion in Valenzuela II that, until that decision, our courts had continued to authorize use of the admonition. It is unreasonable to require the police to predict a shift in the law when our trial and appellate courts failed to do so. The deterrent purpose of the exclusionary rule does not apply here because the police followed binding appellate precedent that persisted in Butler 's wake. We should not endeavor to divine "unsettled" law where none exists merely to constrain application of the good-faith exception. Such an approach turns the purpose of the exclusionary rule on its head. It is the exclusionary rule, not the good-faith exception to it, that we turn to as a "last resort." See, e.g. , Leon , 468 U.S. at 918-19, 104 S.Ct. 3405 (reasoning that "even assuming that the [exclusionary] rule effectively deters some police misconduct and provides incentives for the law enforcement profession as a whole to conduct itself in accord with the Fourth Amendment, it cannot be expected, and should not be applied, to deter objectively reasonable law enforcement activity"). We decline to invoke the rule to penalize the police for what can, at worst, be described as appellate judges' error in continuing to approve consent in response to the admin per se admonition after Butler , and we will not prescribe the "bitter pill" of exclusion where we find that police engaged in neither deliberate, reckless, or grossly negligent conduct, nor recurring or systemic negligence. See Davis , 564 U.S. at 237, 240-41, 131 S.Ct. 2419.

¶21 We vacate the court of appeals' opinion and affirm Weakland's convictions and sentences.

PELANDER, J., dissenting.

¶22 I respectfully disagree with the majority's conclusion that the good-faith exception to the exclusionary rule applies to this case. Although I agree with Justice Bolick's conclusion that "the continued use of the admonition alone to establish voluntary consent was of dubious constitutionality following [ State v. ] Butler , [232 Ariz. 84, 302 P.3d 609 (2013) ]," infra ¶ 40 (Bolick, J., dissenting), I write separately to explain my reasoning because my approach differs from his.

¶23 Weakland's consent to a blood draw directly followed the arresting officer's telling her twice, pursuant to an "admin per se" form, that "Arizona law requires you to submit to and successfully complete" the blood test. In State v. Valenzuela (Valenzuela II ), 239 Ariz. 299, 301 ¶ 2, 309 ¶ 33, 371 P.3d 627, 629, 637 (2016), we held 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" for providing a blood sample and "cannot excuse the failure to secure a warrant." But we found that "[t]he good-faith exception applie[d]" because the arresting officer "followed binding precedent that had sanctioned use of the admonition read to Valenzuela" at the time of his 2012 arrest. Id. at 309 ¶¶ 32-33, 371 P.3d at 637 (citing Campbell v. Superior Court , 106 Ariz. 542, 546, 479 P.2d 685, 689 (1971), and State v. Brito , 183 Ariz. 535, 538-39, 905 P.2d 544, 547-48 (App. 1995) ).

¶24 The next year, in State v. Havatone , 241 Ariz. 506, 512 ¶ 28, 389 P.3d 1251, 1257 (2017), this Court found the good-faith exception inapplicable when "no binding precedents specifically authorized" the practice of warrantless, nonconsensual blood draws from unconscious DUI suspects, and "Arizona case law regarding a per se exigency was, at most, unsettled." I dissented in that case and would have applied the good-faith exception. Id. at 521 ¶ 62, 389 P.3d at 1266 (Pelander, J., concurring in part and dissenting in part). But unlike Havatone , this case does not involve "a presumptively valid state statute" that "specifically and expressly" authorized the practice in question. Id. at 515 ¶ 38, 521 ¶ 63, 389 P.3d at 1260, 1266 (citing A.R.S. § 28-1321(C) ). Nor does application of the exclusionary rule in this case impose on officers an "expect[ation] to anticipate or predict a future change in our case law." Id. at 521 ¶ 63, 389 P.3d at 1266.

¶25 More recently, addressing facts predating United States v. Jones , 565 U.S. 400, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012), this Court found the good-faith exception applied to officers' installation of a GPS device on a suspect's vehicle in 2010. State v. Jean , 243 Ariz. 331, 342-43 ¶¶ 40-47, 407 P.3d 524, 535-36 (2018). We reasoned that the officers conducted the search "in objectively reasonable reliance" on prior, binding United States Supreme Court cases, id. at 343 ¶ 47, 407 P.3d at 536, and we rejected the argument that "to qualify as 'binding appellate precedent under Davis [v. United States , 564 U.S. 229, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011) ],' a case 'must specifically authorize the precise conduct under consideration,' " id. ¶ 45 (quoting United States v. Katzin , 769 F.3d 163, 176 (3d Cir. 2014) ).

¶26 One could argue, as the amicus curiae Arizona Attorneys for Criminal Justice does, that some tension exists between Havatone and Jean . Havatone interpreted and applied the good-faith exception narrowly, finding "recurring or systemic negligence" that precluded application of the exception, 241 Ariz. at 511 ¶ 21, 389 P.3d at 1256, in part because "Arizona case law in effect at the time of Havatone's blood test did not specifically authorize[ ]" the precise conduct at issue, namely, the "particular police practice of directing warrantless, nonconsensual blood draws from unconscious DUI suspects absent exigent circumstances," id. at 513 ¶ 30, 389 P.3d at 1256 (alteration in original) (citation omitted) (internal quotation marks omitted); see also id. at 512 ¶ 24, 389 P.3d at 1257. Jean , in contrast, took a less restrictive view, concluding that the good-faith exception applied because "the rationale underpinning" the prior Supreme Court precedent authorized the limited GPS monitoring in that case, even though the Court had not specifically authorized that precise conduct but only similar conduct in beeper cases. 243 Ariz. at 343 ¶ 45, 407 P.3d at 536 (internal quotation marks omitted). These divergent views regarding the scope of the good-faith exception are also illustrated in the majority and dissenting opinions in Jean . Compare id. at 342-43 ¶¶ 40-47, 407 P.3d at 535-36, with id. at 343-45 ¶¶ 49-57, 407 P.3d at 536-38 (Bales, C.J., dissenting in part and dissenting from the judgment).

¶27 Importantly, contrary to Justice Bolick's suggestion, infra ¶ 48, Davis does not resolve this dispute. The outcome in Davis is consistent with either approach, and language in Davis supports both views. In Davis , police officers engaged in the precise conduct specifically authorized by Eleventh Circuit precedent. 564 U.S. at 239, 131 S.Ct. 2419. The Court concluded that relying on that precedent to engage in the same conduct authorized by it was objectively reasonable. Id. at 239-41, 131 S.Ct. 2419. But the Court did not limit application of the good-faith exception to those circumstances. Instead, it broadly held that "the exclusionary rule does not apply" "when the police conduct a search in objectively reasonable reliance on binding appellate precedent," without setting forth the boundaries of that rule. Id. at 249-50, 131 S.Ct. 2419 ; see also id. at 232, 131 S.Ct. 2419.

¶28 In my view, Jean 's formulation and application of the good-faith exception is correct and better serves the values supporting the exclusionary rule and this exception to it. See Davis , 564 U.S. at 240, 249, 131 S.Ct. 2419 ;

Jean , 243 Ariz. at 343 ¶ 46, 407 P.3d at 536. Thus, I agree with the majority on that point. See supra ¶ 9. In a world with evolving technology and limited judicial resources, the validity of police officers' conduct should not hinge on appellate courts previously having specifically authorized every particular practice that officers might engage in or bear the risk that evidence will be suppressed if a practice is subsequently declared unconstitutional. This, of course, is especially true when a police officer can reasonably interpret those appellate decisions that do exist as authorizing related or similar practices based upon the rationales, principles, and reasoning that those decisions set forth. Under those circumstances, it is hard to understand what the deterrent value is in suppressing evidence when a future court later determines that a practice is unconstitutional. As this Court aptly observed in Jean , " Davis requires good faith and reasonableness, not a crystal ball." 243 Ariz. at 343 ¶ 45, 407 P.3d at 536.

¶29 Any disparity between Havatone and Jean , however, is inconsequential and neither affects nor changes the outcome here. Under either approach to the good-faith exception, Butler sufficiently unsettled the aggregate of relevant Arizona case law relating to police officers' use of this "admin per se" form to preclude application of the exception in this case. Applying Havatone , Justice Bolick's dissent explains why, at the time of Weakland's post- Butler arrest in 2015, "a blanket policy to read the admonition but not to otherwise establish consent could not have been made in good faith, and therefore the good-faith exception to the exclusionary rule should not apply." Infra ¶ 53. But in reaching that conclusion, Justice Bolick's dissent implicitly questions the reasoning and result in Valenzuela II and disregards Jean , while neither the majority nor I do. See supra ¶¶ 9, 17.

¶30 Nonetheless, the same conclusion obtains under Jean . The rationale, principles, and reasoning underlying this Court's analysis in Butler undermine the State's claim that the aggregate of relevant Arizona case law at the time of Weakland's arrest could reasonably be understood as authorizing the practice of obtaining constitutionally adequate consent to blood testing by reading an "admin per se" form to an arrestee that instructs the arrestee that he or she is "require[d]" to submit to testing. Three reasons support this conclusion.

¶31 First, Butler expressly rejected the notion that Arizona's implied consent statute "requires" a person to submit to blood testing, which directly contradicts the language in the "admin per se" form later used when Weakland was arrested. This Court stated that the "consent" under that statute "does not always authorize warrantless testing of arrestees." Butler , 232 Ariz. at 88 ¶ 17, 302 P.3d at 613 (quoting Carrillo v. Houser , 224 Ariz. 463, 465 ¶ 10, 232 P.3d 1245 (2010) ). Rather, we stated that the implied consent law directs an officer "to ask the arrestee to submit to the test, and the arrestee may then refuse by declining to expressly agree to take the test." Id. (emphasis added). "If the arrestee refuses , the statute specifies that a warrant is required to administer the test and the arrestee shall have his license suspended." Id. (emphasis added). These statements cannot reasonably be understood in good faith as authorizing an officer to admonish DUI arrestees that they are "require[d]" to submit to testing.

¶32 Second, Butler held that "independent" of the implied consent statute, "the Fourth Amendment requires an arrestee's consent to be voluntary to justify a warrantless blood draw." Id. ¶ 18. That statement cannot reasonably be understood in good faith as authorizing an officer to assume or infer that an arrestee's consent for Fourth Amendment purposes is voluntary based solely on (i.e., entirely dependent upon) the fact that the arrestee submitted to testing pursuant to an admonition that, for the reasons discussed above, Butler concluded erroneously misstates the implied consent statute.

¶33 Third, in support of the Butler trial court's finding that voluntary consent was lacking in that case, we noted that the officer (pursuant to the admin per se form) had twice told the suspect that he was "required to submit" to blood testing. Id. at 89 ¶ 20, 302 P.3d at 614. Far from authorizing the practice of reading that form to an arrestee and then assuming or implying based on that fact alone that the arrestee's subsequent submission to testing constituted voluntary consent, this Court included that precise fact as a reason for upholding the trial court's finding that the suspect's consent was involuntary . Our including that fact as a reason for finding an arrestee's consent involuntary for Fourth Amendment purposes cannot reasonably be understood in good faith as authorizing an officer to obtain constitutionally adequate consent to blood testing by reading an "admin per se" form to an arrestee that instructs the arrestee that he or she is "require[d]" to submit to testing.

¶34 The majority contends, however, that " Butler did not 'unsettle' the law." Supra ¶ 13. According to the majority, "the sufficiency of consent given in response to the admin per se form alone" was not at issue in Butler , supra ¶ 12, and that case "failed to meaningfully acknowledge the two binding appellate cases authorizing use of the language on the admin per se form- Campbell v. Superior Court , 106 Ariz. 542, 479 P.2d 685 (1971), and State v. Brito , 183 Ariz. 535, 905 P.2d 544 (App. 1995)." Supra ¶ 13. These assertions are unpersuasive.

¶35 Butler did address the sufficiency of consent after the admonition-indeed, we expressly rejected the State's arguments that "the 'consent' in § 28-1321(A) either constitutes an exception to the warrant requirement or satisfies the Fourth Amendment's requirement that consent be voluntary." 232 Ariz. at 88 ¶ 17, 302 P.3d at 613. Because the minor involved in Butler did consent-both verbally and in writing-after being given the per se admonition, see id. at 86 ¶ 4, 302 P.3d at 611, our affirming the juvenile court's ruling that the consent nonetheless was involuntary necessarily implies that the mere fact that a suspect agrees to the test after the admonition does not suffice to establish voluntariness. With respect to Campbell and Brito , neither of those cases expressly discussed whether, apart from the implied consent statute, voluntary consent is required for a warrantless blood draw or whether acquiescence to a blood draw after the admonition itself establishes such consent (the issues Butler did decide). Thus, the majority's assertion that Butler failed to acknowledge "binding appellate cases" is incorrect. Supra ¶ 13. Indeed, in Butler the State did not contend that Campbell -much less Brito -somehow established that the consent involved in Butler was voluntary. Thus, there was no reason in Butler to discuss Campbell or Brito because they were not pertinent to the issues before the Court, much less "binding." Although those cases justified an officer's good-faith use in 2012 of the admin per se form that contained the "Arizona law requires" language, see Valenzuela II , 239 Ariz. at 301 ¶¶ 4-5, 309-10 ¶¶ 32-34, 371 P.3d at 629, 637-38, that cannot be said post- Butler for the 2015 arrest and search of Weakland here.

¶36 Application of the good-faith exception in this case requires the Court to take an even broader view of that exception than set forth in Jean . In Jean , we applied the good-faith exception because "the rationale underpinning" prior Supreme Court precedent could be logically and reasonably extended from beepers to GPS monitoring. 243 Ariz. at 343 ¶ 45, 407 P.3d at 536 (quoting Katzin , 769 F.3d at 173-74 ). Significantly, though, at the time of the police officers' GPS monitoring in Jean , no United States Supreme Court case had explicitly or implicitly overruled or questioned its prior case law or otherwise suggested that GPS monitoring might be or likely is impermissible. That is precisely what made the officers' reliance on "the rationale underpinning" the prior cases reasonable. Stated differently, the officers in Jean could extract principles from the beeper cases and reasonably extend those principles to a new fact pattern, GPS monitoring, but they did so without ignoring authority cutting the other direction. Under those circumstances, this Court correctly found no deterrent value in suppressing the GPS monitoring evidence and correctly applied the good-faith exception. Id. ¶¶ 45-47.

¶37 But that is not the situation here. If we assume (and absent any facts in the record, we can only assume) that the police officer in this case relied on this Court's interpretation of the implied consent statute in Campbell (a 1971 decision) and the court of appeals' decision in Brito (a 1995 decision), the officer did so while ignoring this Court's contrary interpretation of the implied consent statute and analysis of constitutionally adequate consent in a subsequent, and much more recent, case. Butler (our 2013 decision) plainly cast doubt on whether the "admin per se" form accurately stated the law and whether a person's submission to testing after merely being read those admonitions could constitute voluntary consent for purposes of the Fourth Amendment, obviating the need for a search warrant. Unlike in Jean , arguably there was authority on both sides of the scale here. Furthermore, unlike in Davis , the police officers did not follow, act in "strict compliance" with, or "scrupulously adhere[ ]" to the aggregate of relevant Arizona case law "to the letter." 564 U.S. at 239, 249, 131 S.Ct. 2419. Nor could they have done so because the relevant law was, at best, unclear. But rather than "err on the side of constitutional behavior," Havatone , 241 Ariz. at 513 ¶ 29, 389 P.3d at 1258 (quoting United States v. Johnson , 457 U.S. 537, 561, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982) ), the officer proceeded in the face of "unsettled" law, id. at 512 ¶ 28, 389 P.3d at 1257.

¶38 Therefore, under these circumstances, unlike in Jean and Davis , there is deterrent value in suppressing the blood draw evidence. Although Havatone , in my view and the majority's, interpreted the good-faith exception too narrowly, this Court correctly stated there that in " 'close' cases" police officers should err on the side of protecting citizens' constitutional rights. See id. at 513 ¶ 29, 389 P.3d at 1258 (quoting Johnson , 457 U.S. at 561, 102 S.Ct. 2579 ). The arresting officer did not do so here.

¶39 Finally, in determining for Fourth Amendment purposes whether a DUI arrestee's consent was voluntary, we consider the totality of circumstances, which might include but are not necessarily limited to the arrestee submitting to blood testing after being given the (now invalid) "required by law" admonition. See Valenzuela II , 239 Ariz. at 305-06 ¶ 21, 371 P.3d at 633-34 (holding 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"); Butler , 232 Ariz. at 87 ¶ 13, 302 P.3d at 612 ("Voluntariness is assessed from the totality of the circumstances."). In this case, however, the record does not reflect any facts that bear on or might support a finding of voluntary consent other than Weakland's submission to blood testing after the "required by law" admonition was given to her. And, at oral argument in this Court, the State conceded that no other facts suggest voluntary consent under the totality of circumstances. Accordingly, I respectfully dissent from the majority's holding that the good-faith exception applies to this case and would instead apply the exclusionary rule and reverse the trial court's order denying Weakland's motion to suppress.

BOLICK, J., joined by BALES, C.J., dissenting.

¶40 The sole question before the Court is whether, following our decision in State v. Butler , 232 Ariz. 84, 302 P.3d 609 (2013), it was objectively reasonable for a police department to view acquiescence to the admonition at issue, standing alone, to establish voluntary consent to a blood draw, thus allowing admission of the blood test as evidence notwithstanding that the search violated Weakland's constitutional rights. Because the continued use of the admonition alone to establish voluntary consent was of dubious constitutionality following Butler , I respectfully dissent.

¶41 In Davis v. United States , the U.S. Supreme Court held that evidence resulting from an unconstitutional search would be suppressed unless the police were acting in good faith on "binding appellate precedent [that] specifically authorizes a particular police practice." 564 U.S. 229, 241, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011). In State v. Havatone , we held that "[w]hen the Fourth Amendment violation occurred not as the result of an officer's fact-specific determination that obtaining a warrant is infeasible but pursuant to department practice making such determination unnecessary, we impute to the law enforcement agency the responsibility to assure that unlawful seizures will not occur." 241 Ariz. 506, 511 ¶ 22, 389 P.3d 1251, 1256 (2017) (citing Davis , 564 U.S. at 240, 131 S.Ct. 2419 ). Application of the exclusionary rule where the law is "unsettled," or the constitutionality of a practice is "dubious," provides deterrence against unconstitutional behavior. Id. at 512-13 ¶ 29, 389 P.3d at 1257-58. Indeed, if the rule "is not applied in 'close' cases, 'law enforcement officials would have little incentive to err on the side of constitutional behavior.' " Id. at 513 ¶ 29, 389 P.3d at 1258 (quoting United States v. Johnson , 457 U.S. 537, 561, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982) ).

¶42 The use of the admonition alone to establish voluntary consent was questionable long before Butler . The U.S. Supreme Court held in Bumper v. North Carolina that "[w]hen a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given. This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority." 391 U.S. 543, 548-49, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968) (footnote omitted). Yet that is exactly the practice on which the majority bases the good-faith exception here, fifty years later.

¶43 Indeed, when we ruled the practice unconstitutional in State v. Valenzuela ( Valenzuela II ), the Court acknowledged that it was applying well-settled law when it stated that "[t]he Bumper line of cases survives to invalidate any consent given only in acquiescence to an assertion of a lawful authority to search." 239 Ariz. 299, 304 ¶ 17, 371 P.3d 627, 632 (2016) (citing Florida v. Royer , 460 U.S. 491, 497, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (plurality opinion)). The Court read Bumper and Schneckloth v. Bustamonte , 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), in tandem "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." Valenzuela II , 239 Ariz. at 304 ¶ 17, 371 P.3d at 632. In concluding that the State failed to meet its burden to demonstrate that Valenzuela's consent to the tests was voluntary, the Court remarked that " Bumper and Johnson [v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948) ] direct this outcome." Valenzuela II , 239 Ariz. at 306 ¶ 22, 371 P.3d at 634. It is very difficult to argue that an outcome directed by decisions more than a half-century ago should have come as a surprise.

¶44 After our ruling in Butler , reliance solely on acquiescence to an admonition asserting legal authority to establish voluntariness was even more untenable. At the very least, the law was at best unsettled, which is an insufficient basis for the good-faith exception to the exclusionary rule. See Havatone , 241 Ariz. at 512-13 ¶ 29, 389 P.3d at 1257-58 ; see also United States v. Lara , 815 F.3d 605, 613 (9th Cir. 2016) (holding the good-faith exception does not apply where "the appellate precedent, rather than being binding, is (at best) unclear"). In Butler , the State argued that tests administered under A.R.S. § 28-1321 were not subject to a Fourth Amendment voluntariness analysis-an argument we rejected. 232 Ariz. at 87 ¶¶ 9-10, 302 P.3d at 612. And we rejected the State's argument that "consent" in the statute satisfies the Fourth Amendment's requirement that consent be voluntary. Id. at 88 ¶¶ 17-18, 302 P.3d at 613. We held that, based on the totality of the circumstances, "the Fourth Amendment requires an arrestee's consent to be voluntary to justify a warrantless blood draw." Id. ¶ 18. Given that it was already well established that a prosecutor could not prove voluntariness based solely on assertion of authority, it should have been clear after Butler that acquiescence to the admonition alone would not suffice. Indeed, it is difficult to imagine a lawyer advising a police department that Butler raised no serious doubt about such a policy.

¶45 The majority does not dispute that the police should not rely on unsettled doctrine. Instead, it asserts that the term "unsettled" is "opaque," supra ¶ 10, which it is not. See Unsettled , Webster's Third New International Dictionary (3d ed. 2002) (defining "unsettled" as "not decided or determined" or "not resolved or worked out"). The majority contends that Butler did not leave the law unsettled because Butler "did not address whether use of the admonition was inherently coercive, did not clearly address its effect, and did not expressly question its validity." Supra ¶ 13. The majority is conflating two distinct issues: (1) whether acquiescence in a search after the admonition establishes that it was voluntary for Fourth Amendment purposes without regard to other circumstances, a proposition Butler clearly rejects; and (2) whether the use of the admonition is inherently coercive and any consent given in response is therefore involuntary, the issue later addressed in Valenzuela II . The holding in Butler on the first issue was sufficient to cast doubt on resolution of the second issue. The Court noted that even under § 28-1321(A), "the officer is directed to ask the arrestee to submit to the test, and the arrestee may then refuse by declining to expressly agree to take the test.... We hold now that, independent of § 28-1321, the Fourth Amendment requires an arrestee's consent to be voluntary to justify a warrantless blood draw." Butler , 232 Ariz. at 88 ¶¶ 17-18, 302 P.3d at 613. Weakland's arrest was after Butler , and consent was not voluntarily conferred, as required by Butler . Thus, the warrantless blood draw, which all now concede was unconstitutional, could not have occurred in good faith.

¶46 The majority then says that "even if Butler presaged future court disavowal of the admonition, it did not foreclose its use." Supra ¶ 19. That depiction states the constitutional equation backward: we do not determine good faith based on whether the police have engaged in a practice the courts have clearly foreclosed, but rather on whether the courts have expressly authorized the practice. Davis , 564 U.S. at 241, 131 S.Ct. 2419. And it is not enough if the question is debatable. See Havatone , 241 Ariz. at 512-13 ¶ 29, 389 P.3d at 1257-58. The exclusionary rule's deterrent effect against unconstitutional warrantless searches is hardly advanced if the state can avoid consequence merely by plausibly asserting that it did not read binding precedent as unequivocally foreclosing a particular practice.

¶47 The majority counters that "Arizona appellate courts had authorized police reliance on the language used in the statutory admin per se admonition for over forty years at the time of Weakland's arrest." Supra ¶ 19. Indeed, courts frequently focused on the admonition's language, especially in the context of suspending a driver's license for failure to consent. But what our courts have never done, and what is at issue here, is to authorize the use of the admonition, standing alone, to establish voluntary consent under the Fourth Amendment, precisely the issue presented in Butler . Absent such authority, or in light of an unsettled state of law, we should not find the good-faith exception applicable.

¶48 The majority contends we were wrong in Havatone to require binding appellate authority specifically authorizing the practice in question, instead preferring the more flexible good-faith standard articulated in State v. Jean , 243 Ariz. 331, 407 P.3d 524 (2018). Supra ¶ 9. Of course, the requirement of binding appellate precedent specifically authorizing the practice in question originated not in Havatone but in the U.S. Supreme Court's decision in Davis . See 564 U.S. at 241, 131 S.Ct. 2419. Regardless, Justice Pelander, who authored the relevant standard in Jean , points out in his separate dissenting opinion that under either the Jean or Havatone standard, it is clear that " Butler sufficiently unsettled the aggregate of relevant Arizona case law relating to police officers' use of this 'admin per se' form to preclude application of the exception in this case." Supra ¶ 29.

¶49 The majority contends, supra ¶ 13, that the requisite binding appellate authorization is supplied by Campbell v. Superior Court , 106 Ariz. 542, 479 P.2d 685 (1971), and State v. Brito , 183 Ariz. 535, 905 P.2d 544 (App. 1995), abrogated by Valenzuela II , 239 Ariz. 299, 371 P.3d 627, which as the Court observed in Valenzuela II had not been "questioned or overruled," 239 Ariz. at 309 ¶ 34, 371 P.3d at 637. But neither case provides the express authorization necessary to avoid consequence for the Fourth Amendment violation.

¶50 In Campbell , the Court considered various challenges to the implied consent law in the context of a DUI suspect's refusal to take a breath test, which resulted in a suspended license. 106 Ariz. at 544-45, 479 P.2d at 687-88. As relevant here, the Court concluded in a single sentence that the statute did not violate the Fourth Amendment. Id. at 554, 479 P.2d at 697 (citing Schmerber v. California , 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) ). Nor have we ruled the statute unconstitutional in Valenzuela II or here. The Court's core holding in Campbell , applicable in the context of a civil proceeding, was that it is "reasonable under the circumstances to require a person to submit to a chemical test of his blood, brea[t]h or urine if arrested for driving while intoxicated or face a six months suspension of his driver's license." 106 Ariz. at 546, 479 P.2d at 689. No warrant or voluntariness issues were before the Court in Campbell , and no issues relating to civil penalties are before us here. Given the markedly different context and issues presented, Campbell provides scant (if any) support for the proposition that acquiescence to the admonition establishes voluntary consent.

¶51 In Brito , the court of appeals dealt with a criminal defendant who also refused to take a breath test-again presenting no issues involving consent or warrants. 183 Ariz. at 537, 905 P.2d at 546. Rather, the defendant argued that the admonition misstated the law. Id. at 538, 905 P.2d at 547. It is somewhat difficult to understand the court's holding, for it says both that a defendant does not have an "unfettered right to refuse" the tests, but also that "he may refuse the request" although "the refusal has consequences." Id. Regardless, like Campbell , the opinion says nothing about when a warrant is required or whether acquiescence to the admonition establishes voluntariness. Thus, neither decision authorizes reliance on the admonition to establish consent.

¶52 Our subsequent discussions of Butler demonstrate that the decision, at the least, unsettled the law. In Havatone , we emphasized that Butler held that § 28-1321"does not relieve the state of establishing voluntary consent ... to justify warrantless blood draws from DUI suspects." 241 Ariz. at 510 ¶ 16, 389 P.3d at 1255 (citing Butler , 232 Ariz. at 87-88 ¶¶ 12-13, 18, 302 P.3d at 612-13 ). In Valenzuela II , the Court observed that "we have rejected the contention that the implied consent law operates to prospectively provide consent to a search for Fourth Amendment purposes." 239 Ariz. at 307 ¶ 25, 371 P.3d at 635 (citing Butler , 232 Ariz. at 88 ¶ 18, 302 P.3d at 613 ). The Court stated that it has "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 consent to search was freely and voluntarily given." Id. at 305 ¶ 20, 371 P.3d at 633 (emphasis added) (citing Butler , 232 Ariz. at 88-89 ¶¶ 19-20, 302 P.3d at 613 ). Given these apt readings of Butler , it is difficult to apprehend Valenzuela II 's holding as upending settled and binding appellate precedent rather than as a logical next step that resolved any lingering uncertainty.

¶53 By the time of Weakland's 2015 arrest, our decisions clearly established that the implied consent statute "generally does not authorize law enforcement officers to administer the test without a warrant unless the arrestee expressly agrees to the test," Carrillo v. Houser , 224 Ariz. 463, 463 ¶ 1, 232 P.3d 1245 (2010) ; and that constitutionally, the State must prove under the totality of the circumstances that the consent was voluntary and express, and not merely implied, Butler , 232 Ariz. at 88 ¶¶ 18-19, 302 P.3d at 613. At that point, a blanket policy to read the admonition but not to otherwise establish consent could not have been made in good faith, and therefore the good-faith exception to the exclusionary rule should not apply. At the same time, excluding the evidence here would incentivize law enforcement officials to more carefully monitor and apply the law, to err on the side of obtaining a warrant, and therefore to avoid the need for a court to exclude evidence in future cases.

¶54 The majority's opinion significantly expands the good-faith exception. Instead of requiring binding appellate precedent that expressly authorizes the practice, it finds good faith where there is a smidgeon of authority and an abundance of doubt. As Justice Pelander aptly characterizes it, instead of erring on the side of constitutional behavior, the police "proceeded in the face of 'unsettled' law." Supra ¶ 37. For those reasons, with great respect to my colleagues, I dissent.

      Justice Bolick asserts that our notice of these unpublished decisions does not support our position because they cannot constitute binding appellate authority pursuant to Arizona Supreme Court Rule 111(c). Infra ¶ 49 n.4. We do not cite these unpublished decisions as authority, but rather as proof of a factual point - that appellate courts continued to approve the admonition after Butler .

      The United States Supreme Court has repeatedly debated the purported costs and benefits of the judicially created exclusionary rule in its Fourth Amendment jurisprudence. See, e.g. , Utah v. Strieff , --- U.S. ----, 136 S.Ct. 2056, 195 L.Ed.2d 400 (2016) ; Hudson v. Michigan , 547 U.S. 586, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006). But this case involves only the good-faith exception to the exclusionary rule, not the underlying purposes, policies, or continued viability of the rule itself, which the Supreme Court still recognizes. And, as the majority acknowledges, the State "bears the burden of establishing that the good-faith exception applies." Supra ¶ 7.

      Indeed, given this Court's ruling in Butler , I warned that "the safest course of action for law enforcement might simply be to obtain search warrants, when reasonably feasible, for obtaining blood samples in DUI investigations." 232 Ariz. at 92 ¶ 37, 302 P.3d at 617 (Pelander, J., concurring). Had that warning been heeded almost two years later when Weakland was arrested, the State's reliance on the good-faith exception would be unnecessary.

      The majority also cites unpublished court of appeals decisions that ostensibly support its position that appellate decisions sanctioned police use of the admonition. Supra ¶ 16. But they cannot constitute the requisite binding appellate authority required to trigger the application of the good-faith exception. See Ariz. R. Sup. Ct. 111(c).