In a recent opinion in an Arizona sexual abuse case, the court denied the defendant’s request for a new verdict. A jury had convicted of a mixture of twenty-five felony and misdemeanor counts, including felonies of molestation of a child and sexual conduct with a minor, as well as misdemeanors of indecent exposure and contributing to the delinquency of a minor. On appeal, the defendant argued that some of the evidence used to find him guilty should have been suppressed; namely, when officers searched his cell phone and found incriminating photos, they were not actually authorized to be looking through his personal property. The court disagreed, finding the warrant that the officers used gave them permission to search the defendant’s phone.

The Facts of the Case

According to the opinion, the defendant was convicted after having molested his stepdaughter from the time that she was eight years old. The abuse remained constant throughout the victim’s childhood, and when the victim turned sixteen years old, the defendant began having sexual intercourse with her. In 2015, the victim and her biological father reported the incidents to the police, and a formal investigation began. During this investigation, detectives learned that the victim and the defendant had exchanged photographs of each other’s genitals over text message, as well as that the defendant had recently taken her cell phone away from her.

A few days later, police officers secured a search warrant, which identified fifteen specific items that the police were authorized to search. These items included the defendant’s cell phone and other electronic devices. A search of his cell phone led to the discovery of several nude photos of the victim, including photos of the defendant and the victim having sex.

Continue reading

In a recent opinion from an Arizona court involving child pornography, the defendant’s request for the court to reconsider his guilty verdict was denied. The defendant was found guilty of sexual exploitation of a minor under the age of fifteen. He filed a motion to suppress evidence, arguing that the officers who found incriminating information did not have the kind of warrant they needed to be able to legally search his home. The appellate court denied the appeal because it found that the warrant was, in fact, valid, even though it had been five months between when the warrant was issued and when the officers made use of the warrant to search for evidence.

The Facts of the Case

According to the opinion, AOL Inc. filed a report in March 2014 after having discovered an email with the subject line, “Re: trade” with an image attached that appeared to contain child pornography. Once officers in Arizona received notice of the image, they subpoenaed the internet service provider to obtain subscriber information for the person who sent the email. Five months later, the officers followed the warrant’s information to the defendant’s home address. They discovered hundreds of images that were classified as child pornography. While the officers were in the defendant’s home, the defendant also admitted to having possessed and distributed child pornography for several years.

Recently, an Arizona appellate court addressed the lower court’s new changes in procedure made in response to the Covid-19 public health emergency. The appellate court denied a defendant’s challenges to these changes, which included the option for potential jurors to appear by video instead of in-person and the decrease in peremptory strikes during jury selection.

The Facts of the Case

While traveling on a highway in a pickup truck, the defendant was stopped by law enforcement for a mud flap violation. The defendant consented to a dog sniff, which led to the officers finding drugs in the truck. The defendant filed a motion to suppress the drugs being used as evidence against him at trial, arguing that he was detained for a time that was longer than necessary for officers to complete the traffic citation. The lower court denied the motion.

While the defendant awaited his trial, the Arizona Supreme Court modified court operations in response to the Covid-19 public health emergency. Typically, in the Arizona jury selection process, each party is allowed up to six peremptory strikes, or in other words the ability to choose up to six individuals who they would like to excuse from serving on the jury. In response to the pandemic, the Supreme Court decreased the number of peremptory strikes that each party could make, changing it from six strikes to two. Additionally, the Supreme Court authorized the use of technology for virtual jury selection instead of in-person jury selection.

Continue reading

In a recent opinion written by an Arizona appellate court, a defendant appealed a lower court’s denial of his to suppress the physical evidence found in his backpack after a murder. The appellate court affirmed the denial of his motion to suppress, finding that the defendant’s Fourth Amendment protections were not violated since the backpack search was a routine inventory search and that the evidence would have been inevitably found because of a warrant filed by police.

The Facts of the Case

According to the opinion, the defendant was found with a bloody knife, a store receipt, and a cell phone, which linked him to the murder of a store worker who was attacked in the store’s parking lot after refusing to hand over his car keys. The defendant argued that he acted out of self-defense at a bus station, but the DNA on the bloody knife and on the defendant’s clothes belonged to the store worker and no disturbance was reported at a bus station that night. Surveillance video showed the defendant getting out of the stolen vehicle to enter a store about an hour after the store worker was killed.

Recently, the Arizona Court of Appeals issued an opinion in an Arizona robbery and felony-murder case. In its opinion, the court affirmed the lower court’s decision to deny the defendant’s motion to preclude an identification made by a witness.

The Facts of the Case

According to the court’s opinion, the defendant and four other individuals robbed an armored truck as two security guards attempted to refill an ATM. One of the individuals fired a rifle at the security guards, and a security guard fired a gunshot back. The shot fired by the security guard was fatal.

The defendant’s DNA was found on a rifle left near the scene of the crime, in addition to the deceased individual’s cell phone being found at the scene of the crime. The call records from the cell phone revealed that the defendant and the deceased had been in communication on multiple occasions and that the defendant had traveled to and from the location of the crime on the day of the incident. The State was authorized to conduct a wiretap on the phones of the suspects, leading to the defendant being arrested.

Continue reading

Recently, a state appellate court issued an opinion in an Arizona drug case involving the automobile exception to the search warrant requirement. According to the court’s opinion, an officer initiated a traffic stop of a vehicle with two passengers after noticing the vehicle swerve across the fog line of a highway in Arizona. During the traffic stop, the officer smelled marijuana, saw a marijuana dispensary bag, smelled air fresheners in the vehicle, and noticed a radar detector on the windshield. The officer used a plate reader to determine that the vehicle had driven into California earlier that day and had made a similar one-day trip to California a few months ago.

The officer determined that the driver was not impaired. As the officer was preparing paperwork to issue a warning, the officer asked the driver about their relationship to one another and where they were headed, to which the driver responded. After escorting the driver back to his car, the officer questioned the other passenger about their relationship to one another and where they were headed. The driver of the vehicle and the passenger of the vehicle gave different answers. The passenger then admitted to there being a small amount of marijuana in the dispensary bag. The officer issued the warning.

The officer then asked the driver about the bag, and the driver stated that there was no marijuana in the car. Neither passenger presented a medical marijuana card. The officer detained both passengers and found various drugs and instruments in the vehicle.

Law enforcement agencies often use traffic stops or other small municipal code violations as a pretext to investigate a suspect for more serious criminal activity. Many arrests and convictions for serious crimes occur only after a law enforcement officer has stopped or detained a suspect for a less serious offense, and decided to expand the scope of their investigation to look for evidence of further criminal activity. These law enforcement tactics are permissible in some circumstances, however, if a police officer expands the scope of a minor traffic stop without legal justification, it may be possible for a defendant to suppress any evidence obtained through the officer’s unlawful tactics. The Arizona Court of Appeals recently issued an opinion in an appeal filed by a man who was convicted of several serious offenses after he was stopped for violating traffic laws.

The defendant in the recently decided appeal is a man who was convicted of several felony offenses relating to drugs and weapons that he allegedly had in his vehicle and were discovered after a traffic stop. According to the facts discussed in the appellate opinion, the defendant had been under investigation for several months for alleged drug activity, however, he was initially stopped by a uniformed officer after he was witnessed violating several minor traffic laws. After the defendant was stopped, several rounds of questioning ensued as to his reason for being in the area. The officer also administered field sobriety tests waiting for a K-9 unit to arrive. After some delay, the police dog arrived and alerted the officer to narcotics in the vehicle. A subsequent search of the vehicle discovered significant amounts of drugs and weapons. The defendant was arrested, charged, and ultimately convicted.

After his conviction, the defendant appealed to the Arizona Court of Appeals, challenging the trial judge’s decision to allow the evidence discovered at the traffic stop to be used at trial. The defendant argued that the officer exceeded the scope of the traffic stop and unreasonably delayed the stop in order to allow time for the K-9 unit to arrive and search for the drugs. The appellate court did not completely agree with the trial judge’s ruling that the scope of the traffic stop was not expanded; however, the court upheld the ruling and conviction because the defendant was the subject of an ongoing narcotics investigation, and the law enforcement agents involved all had reasonable suspicion to perform a search based on the evidence gathered in the months-long investigation, as well as what they had witnessed the day of the arrest. As a result of the appellate ruling, the defendant’s conviction will stand, and he will be required to serve out his prison sentence.

Over the past decade, more states are coming to realize the detrimental—and unfair—effects that result when applying existing laws. For example, laws imposing mandatory minimum punishments, the system’s failure to account for mental health issues (including addiction), and harsh collateral consequences that come along with a conviction have all started to get a second look. Recently, Arizona Governor Doug Ducey signed several bills into law bringing Arizona in line with the many other states that are making significant efforts to adjust what many consider to be a broken criminal justice system.

Specifically, HB 2318 and 2319 address the state’s harsh sentencing system and the impact of a conviction for a non-violent drug crime.

HB 2318

House Bill 2318 deals with first-time offenders who may otherwise receive a disproportionately high sentence. The Bill deals with a situation where a person is convicted of one or more felony offenses that were either consolidated for trial or do not count as “historical prior felony convictions.” Under the old law, a person with two or more offenses was considered a repeat offender, meaning they faced significantly higher penalties. However, for arrests taking place after March 24, 2021, consolidated felony cases will be considered a “single offense” for sentencing purposes.

Continue reading

Your Essential Resource Guide to Current Cannabis Laws in light of recent landmark case ruling, and new Arizona legislation

Series: Part 1 of 2

The AMMA Cannabis Controversy

cannabis-hashish-laws-criminal-defense-attorney-Phoenix-AZ-300x220It’s been nearly a decade since the state passed the Arizona Medical Marijuana Act (AMMA).

According to the DHS statistics for 2018, the number of active qualified Arizona medical marijuana cardholders totaled 198,017.  At year-end, there were an additional 108,819 new applications pending for qualified patient status under the AMMA.

Amidst the success of the program, the state has continued to grapple with how to interpret the law.

The most recent  controversy was whether qualified patients had immunity under the AMMA law to possess hashish, resin, or  other forms of cannabis besides dried leaves, buds and flowers.
Continue reading

When is Your Consent to a DUI Breath or Chemical Test Considered Involuntary, under the State's Implied Consent Law? 

Truck-DUI-Implied-Consent-Criminal-Defense-Attorney-Mesa-AZ-21-150x150A DUI breathalyzer or chemical test is considered a protected search under the 4thAmendment of the U.S. Constitution. This means that police need a warrant with probable cause to conduct a DUI breath, blood or urine test, even under Arizona’s Implied Consent law.

There are a few exceptions to the warrant rule, one of which is voluntarily consent.  If the driver expressly consents to a breath or chemical test, the officer is not required to have a warrant.

Arizona courts have held that if a person was coerced by the officer to take the DUI test then their consent is not voluntary (State of Arizona v. Valenzuela, 2016).  An involuntary consent does not relieve police of the requirement of obtaining a warrant.

Contact Information