Articles Posted in Arizona Criminal Defense

Arizona Court of Appeals: Mistake of Law must be Objectively Reasonable to Avoid Suppression of Evidence obtained after the Stop

police-stop-unlawful-2-300x203Can an Arizona Police Officer’s misreading of a clear and unambiguous law give rise to reasonable suspicion, thereby making a stop lawful?

This was a question for a recent Arizona Appeals Court to decide. In the case, the court considered whether a deputy had reasonable suspicion to stop a driver because the officer thought the rear display light on his vehicle was unlawful.

This article takes a closer look at how defense successfully challenged an unlawful police stop due to the police officer’s mistake of law with these topics:

U.S. Supreme Court excuses unlawful police stop due to suspect’s outstanding arrest warrant: How to protect your rights if you have a warrant

The aftershocks still linger following U.S. Supreme Court Justice Sonia Sotomayor’s eruptive and indignant dissent in this case:

 “The Court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violation of your Fourth Amendment rights. Do not be soothed by the opinion’s technical language: This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants—even if you are doing nothing wrong…”  

– Justice Sonia Sotomayor, US Supreme Court

US-Constitution-10The incident began with an unlawful police stop of a man leaving a private residence.

The suspect was arrested after the police officer learned the suspect had an outstanding warrant.

Illegal drugs were found in the suspect’s possession, after the officer searched him.

The search was conducted incidental to the arrest, as a result of the outstanding warrant for a traffic violation.

The U.S. Supreme Court decided that even though the stop was unlawful, it was not flagrant.

So they allowed the drug evidence to be admitted and used against the suspect to prosecute the illegal drug possession charges.

In this article we outline the case, the U.S. Supreme Court decision, and how it impacts your 4th Amendment rights, especially if you have an outstanding warrant for arrest.  Continue reading

Criminal Defense Challenges for Prohibited Possession of Firearms Charges in Arizona

                                                        Questions before the Court


The Arizona Rules of Criminal Procedure afford parties the right to request a change of judge before trial.  But these rights are not without limitations.

In a recent case, an Arizona appellate court reviewed a defendant’s conviction for misconduct involving weapons.  The appeal centered around two arguments, one being the defendant’s request for a new judge.

First, defendant had requested a peremptory change of judge under Arizona Rule of Criminal Procedure 10.2, which was denied by the trial court.

Secondly, the defendant challenged the sufficiency of the evidence used to obtain the conviction.

In this article we will also, take a closer look at the arguments, and summarize three concepts related to the Rules of Criminal Procedure for trial, which were addressed in this case:

  • The Right of the Parties to Request Change of Judge;
  • Special Actions v. Direct Appeals; and
  • Judgement of Acquittal

We will also discuss the proceedings, final ruling, the right to bear arms, procedural and evidentiary challenge in trial, and criminal defense for weapons charges.

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Your Guide to Understanding Risks and Consequences of Fentanyl-laced Heroin

guns-needlesjpg-1--226x300Imagine the lethal game of “Russian Roulette”, but with different rules of chance.

Let’s say the chambers in a revolver with 6 rounds are all loaded with bullets, with the exception of only one chamber.

As if the risks weren’t enough in the traditional game.  They just increased drastically.

Now it means there is an only one in six chance you will survive the game, instead of a 5 in six chance of survival.

That leaves the player with less than 17% chance of survival, and an 83% chance of fatality.

Those are near the same odds of fatality when a person uses heroin laced with the super opiate known as Fentanyl.

Officials in Arizona as well as other parts of the country are on high alert as it leaves a path of fatalities and grieving families to mourn the loss of loved ones.

The Centers for Disease Control collected data that concluded that over the last 15 years, overdose deaths involving prescription and illicit opioid overdose deaths surged, and that this spike was largely driven by heroin.

In this article we will discuss the following topics intended to raise awareness and to provide general resource information.  Topics include:

  • Fentanyl & Signs of Fentanyl Overdose
  • Fentanyl Laced – Heroin – A Lethal Mix
  • Fentanyl – Laced Heroin Law Enforcement Seizures, and Trends
  • Narcotic Laws and Penalties including Fentanyl –Laced Heroin in Arizona
  • Good Samaritan Laws: Proposed Legislation
  • How to Detect Heroin Laced Fentanyl
  • Arizona Criminal Defense for Narcotic Drug Crimes

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Arizona Court of Appeals Upholds K-9 Search of Vehicle; Police not required to advise that Drug K-9 will be used with Voluntary Consent; Your Rights in Vehicle Searches Q & A

Drug-K-9-Phoenix-AZ-1-219x300-221x300In a recent case ruling the Arizona Court of Appeals upheld a woman’s conviction for possession for sale of methamphetamine and drug paraphernalia.

The central issue in the Appeal was whether or not a K-9 drug search of her vehicle was within the scope of a voluntary consent to search she agreed upon.

Case Facts and Court Opinion

The case arose when an officer stopped the defendant for a cracked windshield and speeding. The officer issued a written warning and a repair warning.

Following the issuance of citations, the officer asked the driver if he could search the vehicle.

The driver answered yes.  The officer then gave her a consent-to-search form that was written in both English and Spanish. The officer and the driver conversed in English.

The form the officer gave her was written in both English and Spanish.

The suspect read and signed the Spanish portion of the consent form.  The officer asked her if she understood what she had signed. She acknowledged that she understood.

The consent-to-search form which the driver signed was central to this ruling.  With it, she consented to the following terms:

  • She could refuse to have her vehicle searched;
  • She could withdraw her consent to search at any time;
  • Evidence found during the search could be used against her in court;
  • The consent did not include property of other passengers in the vehicle.

Following the signing and affirmation of consent, the officer instructed the suspect and the passengers to leave the car and stand 20 feet away.

The officer then went to retrieve his drug K-9 from the patrol car to conduct a search of the suspect’s vehicle.

The officer would later testify that the defendant was standing where she could see him remove the K-9 from the car.

The suspect did not say anything to the officer at that time. She did not object to the K-9 search, or withdraw her consent at any point during the K-9’s search.

The vehicle’s exterior with the K-9, did not elicit an alert.  However, upon investigation of the interior, the dog directed a positive response at a purse on the driver’s seat.

The dog went back to the patrol car, and the officer searched the purse.  The officer found methamphetamine (meth) inside the purse.  The suspect confirmed that the purse with the meth inside belonged to her.

The defendant filed a motion to suppress the evidence. She argued that seizing the methamphetamine was a Fourth Amendment violation because the K-9 search was outside the scope of her consent.

The trial court found that  Continue reading

Arizona Court of Appeals: A search subject to probation terms significantly diminishes privacy rights


If you are placed on probation for a drug crime in Arizona, you have a reduced expectation of privacy than you had before.

This means that, depending on the probation conditions, the privacy protections you thought you had under the Fourth Amendment of the United States Constitution related to search and seizure may not apply.

In a recent Court of Appeals case  the state of Arizona appealed after the lower court granted a defendant’s motion to suppress the evidence of a warrantless search.

In this article we will examine a recent Court of Appeals case which centered around the challenge of a warrantless search at the residence of a probationers.

We will also take a closer look at some key legal concepts that the court examined in the process establishing a ruling in this case.  The legal concepts we will discuss following the overview and court ruling summary include:

  • Privacy rights for warrantless searches under the U.S. Constitution 4th Amendment;
  • Privacy rights for warrantless searches of a person’s residence under the Arizona Constitution Article 2, Section 8;
  • A comparison of the two, and discussion as to why the more liberal privacy rights afforded under Arizona law did not apply;
  • Assessing “Totality of the Circumstances” for reasonableness of a warrantless search on a probationer’s residence.

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1st Place – The Expert Institute 2015 Best Legal Blog Contest

“Feeling gratitude and not expressing it is like 

wrapping a present and not giving it.”

-William Arthur Ward  

The Expert Institute recently announced the results of their 2015 Best Legal Blog Contest.



Though heard often, these two words carry the utmost sincerity, gratitude and appreciation.  

Thanks to all friends, friends of friends; family, extended families, and neighbors.

Thanks to peers, peer networks; social media friends, connections, communities, and groups who voted and shared to their own friend networks and campaigned on my behalf.

Thanks to all loyal readers of our blog.

Thanks to all of you for whom I have not had the fortune of meeting, but still you voted, shared, and showed your support in the The Expert Institute 2015 Legal Blog Contest.

Thanks to all the guest authors who have contributed to the Blog articles.  You have added value, authority, and enriched the content and benefit for the readers.

Thank-you to all contestants for your unique and interesting Blogs. They were of the highest quality and benefit to readers.   It was an honor to be competing with your Blogs.  I knew that winning would no easy task for any contestant.

Congratulations to all the winners in all categories.  Your victories were well deserved.

Thanks to the Sponsor of the campaign, The Expert Institute hosting this well run contest.

Thanks to Joe O’neill, Senior Associate, Marketing, at The Expert Institute, who kept us informed and well instructed throughout the contest.  He worked very hard to make it a huge success.

“Depth of friendship does not depend on length of acquaintance.”  – Rabindranath Tagore

                         Lessons Learned                                 

I learned that participation in an industry contest is a lot harder than it looks.

I learned that while you might have the best blog entry in the contest, it will not be recognized as such, unless you promote it.

I learned that to be a competitive, you must set aside your pride, and ask for help.  There is no indignity in teamwork.

I learned that creative, enthusiastic, and committed volunteers are the key to success.

I learned that people  genuinely are willing to help if asked, and want to see you succeed.  In the least, if they took the time to vote, they want to make sure it counts.

I learned that others will take the contest only as seriously as you do.

I learned contests can be a lot of fun.  I enjoyed engaging with old friends on social media, and making many new friends at the ones.

I learned that if you look for the goodness in others, and expect the best in them, you will find it.

I learned that there are no strangers on Social Media.

There are no strangers here; Only friends you haven’t yet met.

– William Butler Yeats

                                                                 Memorable Moments 

There were a lot of memorable moments  behind the scenes during the contest. This was especially the case, in the way of comments and interactions on social media.

Interacting helped me to identify three key elements which I think will help anyone succeed:

  1. Strategy, teamwork, and utilization of every your resource in your arsenal;
  2. Work hard until the last minute of the race; reach high for 1st place; and never give up;
  3. Have fun; Let people give what they wish to give. Accept graciously. Acknowledge every act of support.

I.  Strategy, teamwork, and utilization of every resource in your arsenal

Google Plus Community Post  – These are just a few of 36 comments on this Post 

(Throughout the post are comments in red to illustrate my reality checks at the time).    

Me Post: What do you all think about this integration of “We Dig” movement, “Collections” and  our “Campaigns” all in one?   Also, I would really would appreciate your “We Dig” Vote for my Blog!  

Monika: Sorry it won’t let me vote…

(Wait, wait, this can’t be happening…OK, Just breathe).

Me:  Thank-you for trying, and thank-you for the heads up so I an check it out. Anyone should be able to vote. 🙁  I need to check this out. 

George:  I can dig it. If I were you I would add some blog posts into your collection.

(I didn’t expect to get help with campaign strategy. And I need all the help I can get. Go George!) 

Fran:  I think you’re right on. How could I not vote for fellow Arizonian.

 (This might just work. The Arizona home team approves). 

Melinda: Great idea. I voted and it went through even though it said “already voted”.

 (I wonder how many people tried to vote and couldn’t?  Oh no, it’s Saturday, and we won’t be able to contact The Expert Institute for guidance.  How many votes will I lose this weekend?  We’re doomed.) 

Patti:  We Dig Voting for James Novak! Done. Good luck.  

(OK, calming down now. Patti’s vote counted.) Outsourcing Strategy, Teamwork, Al.lTust 3   

George: You need to include a CTA in each post.

(Wow, George is sharing more ideas for strategy. I’m not leaving this thread for anything. George, you rock!) 

Me: George what’s a CTA? 

George:  “Call to Action”. 

(Oh, right…I knew that:-) 

Sue: I have voted for you James Novak. And I love the We Dig image. 

(OK Litmus test for “We Dig” passed.)

Jim:  After clicking the link, I saw an orange button on your website that said “Already Voted 54+” At first I was baffled thinking it implied the button was incorrectly reflecting that somehow I had already voted. I searched around to see if there was some other button I could push. Finding none, I said “What the heck” and clicked on the orange button to see what would happen. Darned if it didn’t refresh and say “Voted 59+”. What?!… 

(Jim wanted to make sure his vote counted as much as I did! How cool is that? He was on a mission to find out, so that we could share instructions in posts for people. Right on Jim!) 

Monica:   I tried it again! And now, in this minute, the voting seems to run in the correct way:
Click on: “vote” (=thumbs up) on the left side. Immediately the number will count one up   etc.

(Monica then provides step by step instructions on the correct way to cast your vote. Go Monica!)            

II. Work hard until the last minute of the race; reach high for 1st place

“Donny” Campaigning on Facebook

Helping Hand 3 _FullDonny: James, where are we?                                           

Me: We’re in 5th place.   

Donny:  That’s not good enough….

Me: We’re in 4th place…

Donny: Where are we now?

Me: Oh my gosh, we just moved to 3rd place! 

Donny: That won’t do. We’re not done here… 

I was excited to be in 3rd or 4th place, up from 9th. But Donny wouldn’t settle for that.  He reminded me that we were in to win.  No slowing down or settling with less.   Rock on Donny! 

III. Acknowledge every act of support; Let people give what they wish to give, and accept graciously.

“T.L.”  Campaigning Everywhere!gift-orange-10-300x229

T.L:  James, How many now?                            

Me:  1800  and something.                                

T.L:  That’s not enough. I told my family, and called on more of them in Vietnam.  I told them that everybody loves James’ blog.  I told them that you help a lot of people when they make a mistake like getting a DUI, and get arrested. So they need to vote for your blog.     

Me:  Thank-you so much!  

T.L:  My daughter also teaches Taekwondo Class and has lot’s of students.  She is going to spread the word there and ask them to share with their friends too.      Kicking2-150x150

Me.  Wow. that’s awesome. Please extend my thanks to her for that. 

T.L:  And I told my friend that if she spreads the word I will make her some egg noodles. She loves my egg noodles!   rice-1329209-639x493

Me: T.L.  Great! Let’s have a voting – egg noodle party. What can I bring?  

T.L. was a loyal and generous volunteer. She never stopped giving and campaigning. She was creative and tapped into everything in her arsenal. Thank-you T.L. I will be forever grateful. Now about that egg noodle party… 

The Law Office of James Novak is committed to the goal of providing high quality law educational resources and articles you can use.

We have great articles and topics in store for the end of the year 2015 and 2016. We hope you stay connected for more interesting and resourceful articles.

Thank-you again everyone!

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Aggravated Assault – Justification – Crime Prevention Defense: Arizona Court of Appeals Overturns Conviction

  ♦ Featuring Tips from Authorities: How to Safely Respond (or not) to Road Rage ♦

Our Federal and State Constitutions afford us the right to bear arms, to protect ourselves, our families, and others from immediate harm due to serious crimes in progress.

So why then, must we be concerned with facing criminal charges if we exercise those rights?


The answer to this question is two-fold:

First there’s a fine line between what we may feel is justified and what the language of the law dictates.

Second,  the police, prosecution, court and jury may not feel the actions were as justified as we did under the same circumstances.

So while it is true we have these rights, we must be prepared to defend our actions.

In this article we outline a recent Arizona Court of Appeals case that began as a road rage incident.

The defendant was convicted of Aggravated Assault with a deadly weapon.  He appealed his conviction, challenging the jury instructions provided in the trial.

At the heart of the case were two important legal concepts, that proved to be central to the verdicts:

  1. Arizona’s “Justification – Crime Prevention” Defense;
  2. The importance of accurate and complete Jury Instructions

The discussion topics in this article are broken down into the following 8 segments:

  • Incident – Circumstances that led up to the incident;
  • Why the Jury got it Wrong/ Why the jury ruled the way they did;                                 Little-Man-Magnifying-Glass-Colorr-300x300
  • Appeals Court Extended Summary;
  • Arizona’s 15 Justification Defenses;
  • Justification Use of Force – Crime Prevention;
  • Arizona Aggravated Assault with Deadly Weapon Laws;
  • What to do if you find yourself the target of Road Rage;
  • Criminal Defense for Aggravated Assault Charges in Arizona

                                                           Part I –  The Incident  

The defendant was driving with his fiancé and her 4 year old daughter in the vehicle.

Following a minor traffic mishap, another driver began honking and tailgating them.

The angry driver (victim) pulled up alongside the defendant’s vehicle in road rage.

The angry driver waved a gun while pulled up next to their vehicle, frightening the passengers.

At the next stop light, the defendant got out of his vehicle, and brandished his own gun.

The defendant stood there, with his gun. But he did not move to harm the victim;

The light turned green.  The defendant got back in his vehicle, and drove away.

The victim continued to chase him, and ran two red lights in the process.

The victim then called #9-1-1 reported the defendant.

The Police dispatcher repeatedly urged the victim to stop chasing the defendant, and to return to a nearby shopping center to meet an awaiting police officer.

The victim did not immediately obey the dispatcher, but did finally retreat and return to the shopping center.

The victim then took a detour to another area of the shopping center before meeting the officer.

Once stopped, the officer searches the victim’s vehicle but did not find any weapons. The victim denies having a gun.

The defendant was subsequently charged with aggravated assault with a deadly weapon.

The defendant chose to go to trial to prove his innocence.

The jury found the defendant guilty. He was sentenced to 5 years in prison for Aggravated Assault with a deadly weapon.  Read More… Continue reading


Why Two Appeals Court Rulings Contrasted: Justices Review Effects of AMMA on Marijuana Odor on Probable Cause.

In late July, two different Appeals Courts in Arizona released contrasting opinions involving appeals to dismiss the Marijuana evidence due to lack of probable cause for the search.

In both cases the defendants argued the because of the Arizona Medical Marijuana Act (AMMA), the smell of Marijuana should not be used for determination of Probable cause.

In one case the conviction was reversed.  In the other case the conviction was affirmed.  Here we find out why they differed.

Arizona Appeals Court Ruling – Case #1 (No. 2 CA-CR 2014-0181)

On July 20, 2015, the Arizona Court of Appeals Division Two issued the first ruling.

The Court considered the effect that the Arizona Medical Marijuana Act (AMMA) had on probable cause to for issuance of search warrant, based on an odor of Marijuana.

In this case, the Appeals Court ruled that the scent of marijuana alone was insufficient evidence of criminal activity.

Therefore, it was not adequate to justify probable cause for search and seizure warrant.

The Appeals Court held that in order to satisfy the probable cause standard, the scent of the Marijuana would need to be combined with other evidence or facts, which were not presented in this case.

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Police officers are not exempt from search warrant requirements, in order to perform community caretaking duties.

Unlawful Home Search Under the Fourth Amendment of the U.S. Constitution and the Arizona Constitution, you have a right to be free from unreasonable searches and seizures.
This means that in most cases, a warrant is required to search your home, with few exceptions.

The exceptions include situations where “exigent circumstances” exist.

This allows police to make a warrantless entry when they have probable cause to arrest a suspect who has fled, or to stop the imminent destruction of evidence.

Another exception is that the police may make a protective sweep incident to a lawful arrest.

Still another exception is an entry due to an objectively reasonable basis for believing someone within the house needs immediate aid.

Recently, the Arizona Supreme Court limited warrantless searches in connection with the “Community Caretaking Exception,” which is the topic of this discussion.

The Incident

In this case, police officers and paramedics went to the defendant’s residence after receiving calls from neighbors, complaining that the defendant was behaving erratically.

When police and paramedics arrived, the defendant told them that he and his family had been handling up to seven pounds of mercury inside the home, which was being kept in the home in a glass jar.

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