Articles Posted in Arizona Criminal Defense

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.

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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.

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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.

Arizona Supreme Court clarifies standards for determining if a fundamental and prejudicial error occurred at trial.

Drug-Courier-Proling-Laws-Criminal-Defense-Attorney-Mesa-AZ-150x150The U.S. Supreme Court has long held that when the prosecution uses drug courier profiling evidence mainly as a way to prove guilt, it violates a person’s constitutional right to a fair trial.

While police can use drug courier profiling evidence to establish reasonable suspicion for purposes of stopping someone to investigate a crime, this evidence cannot be used at trial largely to prove they are guilty.

This is because by doing so, the defendant is essentially prosecuted for the conduct of others, rather than that of the defendant.

Arizona lawmakers recently passed House Bill 2007 (HB2007), adding an aggravating circumstance to the list of 26 that were previously enumerated in the statute.  The law became effective August 3, 2018.

The newest aggravating circumstance is triggered when a defendant “uses a mask or other disguise to obscure the defendant’s face to avoid detection” during a crime.

To be clear, the new aggravating circumstance doesn’t criminalize wearing a disguise.  Rather, it allows for an increased punishment for those who are convicted of committing a crime, while wearing a mask or disguise.

Your Rights and Arizona GPS laws 

The U.S. Supreme Court previously held that Global Positioning System (GPS) tracking on a driver’s vehicle comprises a search under the 4th amendment. This means that police need a warrant to conduct GPS tracking on a vehicle owned or driven by a suspect when the vehicle is legally in their possession.

Earlier this year, the Arizona Supreme Court issued a landmark opinion in an Arizona drug trafficking case in which the passenger in a GPS tracked vehicle was arrested in addition to the suspect driver.

In the case, the Arizona Supreme Court ultimately affirmed the defendant’s conviction, finding that the officers who conducted the search relied on previous case law in place, that held the conduct was permissible.  With that, the court determined that the police acted properly and did not suppress the evidence, based on the good faith exception.

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Arizona jails and prisons have measures in place to assure no criminal activity is in progress related to the defendant’s communications.

Authorized jail and prison officials screen mail, and record suspects’ phone calls.

The information they obtain may be used to prosecute pending or future criminal charges. The exception to this would be privileged  communications between a defendant and their criminal attorney.

The Arizona Supreme Court recently ruled that enhanced sentencing does not apply if the victim is fictitious.

Under Arizona’s Dangerous Crimes against Children statute (DCAC), a person convicted of a sexual crime against a child is subject to enhanced sentencing. These penalties are severe and designed to provide greater punishments to those convicted of the offenses.

The question for the Court in this case was whether or not enhanced sentencing should be imposed under A.R.S. § 13-705(P) (1), when there was no actual victim.

Arizona Supreme Court Limits Admissibility of “Cold” Expert Testimony

If you were arrested for domestic violence or assault, the prosecution may attempt to use profiling evidence or “cold” expert witness testimony against you.

Profiling evidence  and “cold” expert witness testimony is not always admissible.  The decision about admissibility is a decision for the court.  When making this determination the court will consider the rules of criminal evidence, content, relevance and objectivity of the testimony.

If improper witness testimony is admitted, it can potentially lead to an unfair guilty verdict. Therefore,  proper challenges should be made as to the admissibility of planned expert witness testimony.

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