State v. Chavez9/14/2004
isdiction holding otherwise.
10 And, as one Florida appellate court colorfully stated in Edwards, "We cannot think of a more apt illustration of such breach of the individual and collective peace ... than to have a drunk driver at the wheel of a killing machine that is going all over the road and scaring oncoming drivers to death rather than killing them." 462 So.2d at 582; see also Hudson v. Commonwealth, 266 Va. 371, 585 S.E.2d 583, 588 (2003) (dangerous driving constitutes breach of peace, regardless whether driver under influence of intoxicants).
11 In a case virtually on all fours with this one, United States v. Sealed Juvenile 1, 255 F.3d 213 (5th Cir.2001), an off-duty federal customs officer in Texas observed a pickup truck being driven erratically, veering in and out of its proper lane, variously crossing the center line and moving onto the emergency shoulder of the road. Safety concerns finally prompted the officer to stop the truck, in which he found over 700 pounds of cocaine, which the juvenile driver later moved to suppress as evidence, arguing the customs officer had lacked authority to stop her.
12 The Fifth Circuit cited Texas authority holding that any traffic violation that "is egregious enough to threaten disaster and disorder or pose a potentially perilous public risk ... may constitute a breach of the peace," id. at 218, and also noted that the determination whether a given act constitutes a breach of the peace requires a case-by-case analysis of the facts and surrounding circumstances. Under the facts present there, the court concluded the juvenile's erratic driving had endangered her own life and the lives of other motorists and thus constituted a breach of the peace. Id. We believe the same was true of Chavez's drunken driving as observed and described by Ranger Corella here.
13 We also further disagree with Chavez's contention that a breach of the peace in Arizona is confined to the six instances of disorderly conduct enumerated in § 13-2904(A). Unlike the offense of disorderly conduct, which is a creature of statute, breach of the peace has its roots in the common law. 12 Am.Jur.2d Breach of Peace and Disorderly Conduct §§ 1, 24. The two concepts overlap but are distinguishable, id., and, "while disorderly conduct can include a breach of the peace, breach of the peace is not limited to behavior prohibited by the disorderly conduct statutes." Id. § 1.
14 We also reject Chavez's contention that, even if his DUI offense was a breach of the peace for purposes of § 13-3884(1), his arrest was illegal because Corella lacked probable cause to arrest him for the offense. As the Fifth Circuit noted in Sealed Juvenile 1, the Fourth Amendment's prohibition against unconstitutional searches and seizures applies only to government agents; it does not limit the actions of private citizens. "[A] private citizen's actions, even if wrongful, do not fall under the ambit of the Fourth Amendment." Id. at 216 (citation omitted); see also Burdeau v. McDowell, 256 U.S. 465, 475, 41 S.Ct. 574, 576, 65 L.Ed. 1048, 1051 (1921) (Fourth Amendment's protection against unlawful searches and seizures applies only to governmental action, not to private parties); State v. Weekley, 200 Ariz. 421, 16, 27 P.3d 325, 328 (App.2001), quoting Walter v. United States, 447 U.S. 649, 662, 100 S.Ct. 2395, 2404, 65 L.Ed.2d 410, 421 (1980) (Blackmun, J., dissenting) (Fourth Amendment does not apply " 'to a search or seizure, even an unreasonable one, effected by a private individual' "). Because the parties effectively agree that Corella's actions in stopping and detaining Chavez must be viewed not as the actions of a law enforcement officer or state agent but as *1097 those of a private citizen, see generally Gustke, the Fo
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