Articles Posted in Arizona Drug Charges

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

Arizona Supreme Court Limits Use of Entrapment Defense in Cocaine Case

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Is this too difficult to imagine?

You’ve just been released from prison. You are struggling to become a productive member of society.

You’re looking for job, and trying to get your life on back on track.

So far, no employer has been willing to hire you, due to your criminal record.

You’ve sold nearly everything you own, including your car to pay outstanding debts, and to try and make ends meet.

Day after day you wait for the bus to take you to town so you can continue your job search.

Then one day, you are approached by a man while waiting for your bus. The man asks you if you will purchase $20.00 of crack cocaine.  He offers to pay you $10.00 to do the deal.

You hesitate, and think that selling drugs again was the last thing you ever intended to do.

Weary, desperate, and hungry, you err in judgement and agree.

The man takes you to buy the drugs from an acquaintance.  You buy the cocaine for him.   You give him the cocaine, and he pays you.

Following the exchange of drugs and money, the man immediately arrests you.

You now face returning to prison, and serving 8 to 10 more years for selling illegal drugs while on parole.

The man who approached you at the bus stop was an undercover police officer.  You were clearly entrapped.

But you will not have a chance to gain an acquittal based on the entrapment defense, without doing this one very important thing…

That is, if you wish to challenge the charges by utilizing the entrapment defense, you must admit to the substantial elements of the crime.

In simple terms, you will need to admit that you committed the criminal act for which you were charged.

You are confused by this.  It goes against everything you understood about your 5th Amendment rights and protections against self-incrimination.  So you do not admit to the crime.

But the fact is, it doesn’t matter how much police deception or inducement was involved.  Unless you are prepared to formally admit to the substantial elements of the crime, either in testimony or stipulation, the entrapment defense will not apply.

You are convicted and sentenced to return to prison to serve 9 more years.  Your freedom was short lived.

Not only is this scenario imaginable, but the the high court of Arizona recently heard a case with similar circumstances. This statutory requirement was affirmed in that case.

The Arizona Supreme Court held that the entrapment defense afforded under A.R.S. 13-206, is reserved for cases in which the defendant admits to the substantial elements of the crime.

In this article we examine the often misunderstood entrapment defense, and include the following featured topics:

  1. Overview of recent Arizona Supreme Court ruling in a cocaine case;
  2. 7 questions and answers regarding application of the entrapment defense;
  3. The requirements of making a valid entrapment claim in Arizona;
  4. The burden of proof for entrapment;
  5. Arizona entrapment law A.R.S.  12 – 206;
  6. 10 other drug crimes defenses besides entrapment;
  7. Criminal defense for drug charges in Phoenix AZ

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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: No “conspiracy” without evidence of electronic communication with anyone else besides buyer and seller

cell-phone-tower-drug-crimes-1309712-640x960-202x300In a recent Arizona Supreme Court drug case, a man convicted of 11 drug-related crimes was sentenced to concurrent, consecutive presumptive terms of imprisonment.

The defendant appealed, challenging five convictions related to violations of A.R.S. § 13-3417(A) to facilitate or conspire to commit felony drug crimes.

In this article we provide an overview of the case and the Appeals Court Ruling; how it impacts Arizona; and privacy rights v. the public safety debate of cell phone searches.

This article also includes a special featured segment by Scott Greene, Senior Technology Forensics Expert, who will provide additional insight into cell phone and mobile device forensics.

Case Overview

The case arose when Arizona narcotics agents were told that the defendant was selling drugs.

An undercover agent began talking to the defendant by cell phone and arranged to buy methamphetamine from him.  Below is the outcome of the efforts initiated by the undercover agent:

  • The first transaction took place as planned.
  • The agent again contacted the defendant and arranged another purchase. However, the woman who was supposed to deliver the drugs never showed up to complete the sale.
  • Another purchase was set up, and as a result, the defendant’s co-defendant (another person charged in the crime) sold the meth to the agent.
  • The next transaction did not go through because only the undercover agent arrived and no one met him to complete the sale.
  • The next transaction resulted in another codefendant meeting the agent and selling him rock salt rather than meth.
  • Two weeks later, the police arrested the defendant. Upon searching him, they found a bag of marijuana in his possession, as well as the cell phone with the same phone number used by the undercover agent to initiate the sale.

The defendant and his two codefendants were indicted on multiple counts, found guilty, and sentenced. The defendant appealed.

The appellate court was faced with the issue of whether the defendant, who was the seller in the drug transaction, was properly convicted of an A.R.S. § 13-3417(A) violation.

The primary question was whether or not there was sufficient evidence to prove that the defendant used a wire or electronic communication to “facilitate” or “conspire” to commit the felonies.

This question evolved around the fact that there was no other evidence presented involving wire or electronic communications by the defendant except for that of the buyer, the undercover agent.

The defendant also argued that the offenses that were charged in connection with the wire communications statute involved the sale of rock salt, an imitation substance that falls under A.R.S. chapter 34.1 for Imitation Drugs; not chapter 34 for Drug Offenses, or chapter 23, for Organized Crimes, Fraud or Terrorism, as stated in the language of the statute pertaining to the wire communications statute.

The state responded that the cell phone was used to communicate with the undercover agent about the sale of an unlawful  drug.

Therefore, it was irrelevant that the drug was an illegal imitation substance provided after the communication.

The appellate court explained that they found no published precedent case that interprets the statute.

Therefore, in these situations the court looks to the plain language and the meanings of “facilitation” and “conspiracy” in its effort to interpret the statute.

An Arizona statute provides that “facilitation” is committed if someone who knowingly provides another with the means or opportunity to commit a crime.  They do so, knowing that the other person is committing or intends to commit the crime.

An Arizona statute provides that a “conspiracy” is committed when three elements exist:

  1. At least one of them or someone else will act in ways that constitute that crime; and
  2. Someone agrees with one or more people, intending to promote or help in the committing of a crime; and
  3. One of the people commits an overt act to further that crime.

The court used these statutory definitions of facilitation and conspiracy to interpret the wire communications statute.

It held that prohibited use of a wire or electronic communication is to knowing or with intent:

  • Provide someone else with the means and opportunity to commit a crime; or
  • To agree with someone else, that one of them, or another will act in ways that constitute a crime and commit an overt act to further the crime.

In several of the sales, the defendant was the seller and the agent was the buyer, and both were necessary to the transaction.

The defendant didn’t use the phone to facilitate or promote anyone else’s efforts to complete the sale, nor was their evidence that the defendant was conspiring with anyone else about the sale.

The defendant’s communications with the other people who delivered the drugs in certain transactions were in person.

In other transactions, the undercover agent came to buy drugs, but the defendant didn’t show up to sell them.   Continue reading

Arizona Supreme Court Ruling: AMMA Users have an Affirmative defense for DUI. They can show they did not have a high enough concentration of THC to cause impairment.

marijuana smoke 3 LargeThe Arizona Supreme Court provided a unanimous decision in a recent Marijuana DUI ruling.  The court took a closer look at how the AMMA impacts prosecution.

The Supreme Court ruled that Medical Marijuana card holders are not immune from prosecution under the state’s DUI law, which prohibits drivers from having in their blood marijuana or another chemical compound that causes impairment.

At the same time, the court also ruled cardholders, do in fact, have a limited affirmative defense under the AMMA. But it is a limited DUI Defense. The AMMA does not, and does not provide general immunity from prosecution.

If a qualified user is facing marijuana DUI charges, they can provide a evidence or testimony showing they didn’t have a high enough concentration of the active ingredient THC, in Marijuana, to cause driving impairment.

If they are successful in their challenge of impairment, they may avoid a conviction.

Overview  

This article will cover the following topics:

  • Arizona Supreme Court Ruling on Marijuana DUI;
  • Impacts of Ruling on Arizona Drivers;
  • Affirmative Defenses in Arizona;
  • When the Safe Harbor defense for Medical Practitioner Prescribed Drugs applies;
  • 5 types of evidence that can be used to provide a showing of non-impairment;
  • How many puffs does it take to cause Driver Impairment? 
  • Criminal Defense for Marijuana DUI Charges Mesa AZ

   Arizona Supreme Court Case Overview

Petitioners made no effort to show that the marijuana was in an insufficient concentration to cause impairment.” –  Arizona Supreme Court 

The case involved two defendants, both charged with two counts of driving under the influence:  a violation of A.R.S. § 28-1381(A)(1) and a violation of A.R.S. § 28-1381(A)(3).

The former, (A)(1), prohibits someone from driving while under the influence of any drug if he or she is impaired to the slightest degree.

The latter, (A) (2), prohibits driving while there is any of certain enumerated drugs or their metabolites in the person’s body. Both defendants had taken blood tests that showed they had marijuana and its metabolites in their bodies.

One of the defendants wanted to present evidence of her medical marijuana card in another state, but the municipal court denied her motion. The other held an Arizona medical marijuana card, but the municipal court granted the state’s motion to preclude this evidence from being introduced.

The State dismissed the (A)(1) charge, for driver impairment.

But the defendants were convicted of the (A)(3) charge which states that a person is in violation of a violation of the DUI law if they are driving with any drug found in their system which falls within the state’s drug definitions A.R.S. 13-3401 that includes “Cannabis”. 

The defendants appealed to the Maricopa County Superior Court, which affirmed the convictions. They then appealed to the Arizona court of appeals, which ruled that there was no immunity for defendants holding marijuana cards when charged with (A)(3).

The defendants asked the Arizona Supreme Court to review the case.

The Court explained that with an (A)(3) charge, unlike an (A)(1) charge, the state isn’t required to prove actual impairment.

The defenses for these charges are also different.  With an (A)(1) charge where a person is in violation of the law if they are driving impaired due to drugs or alcohol.  With that, it is not a valid defense against impairment to challenge the violations on the ground that the user has a medical marijuana card.

With the (A)(3) charge involving driving under the influence of the state’s defined drugs, there is an Affirmative Defense available.  This defense makes it lawful to drive under the influence of the state’s defined drugs, if they the drugs are prescribed by a licensed doctor.

The Court explained that the Arizona Medical Marijuana Act (AMMA) immunizes registered qualifying patients for their medical use of marijuana, but the immunity is limited.

AMMA’s § 36-2802 provides immunity to qualified patients who use marijuana to the extent that a registered qualifying patient shall not be considered to be under the influence of marijuana solely because of the presence of metabolites or components of marijuana that appear in insufficient concentration to cause impairment.

The Court also held that possessing a registry card can create a rebuttable presumption that a particular person is using marijuana as permitted by AMMA, as long as he or she isn’t in possession of more than the permitted amount.   This means that the police, prosecution, and court will assume it is true, unless the facts are challenged and proven otherwise.

Generally a defendant may be convicted of an (A)(3) violation if the state is able to prove beyond a reasonable doubt that the driver had marijuana or an impairing metabolite in her body while driving a vehicle.

As a defense, the defendant may show by a preponderance of the evidence that use was authorized by AMMA, and that the amount of marijuana was not enough to cause impairment. Simply presenting a registry card is not enough to establish this defense.

The defendants argued that it was unfair to place the burden of proof on them because there is no threshold that is commonly accepted as Continue reading

Overview of new law: Qualified first responders and training; Liability & Immunities; Good Samaritan Laws; Criminal Penalties & Defense

Overview of AZ HB 2489: Combatting Heroin Overdoses
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A bill we have been following closely, AZ HB 2489 was passed on April 10, 2015. The expected  effective date is July 3, 2015. Arizona now joins 26 other US states that have passed similar legislation.

First responder’s administration of opiate reversal injections, have been credited with saving over 10,000 lives in the USA where overdoses were reversed.

According to the National Centers for Disease Control (CDC), accidental overdose is now the number one cause of death in the USA, exceeding even automobile accidents for people among the age of 25 and 64.

Earlier this year, the CDC reported that heroin overdose deaths nearly quadrupled between 2000 and 2013.  An increasing number of Arizona residents have been overdosing on heroin and opiate-based painkillers like Codeine.  Arizona is now the sixth-highest state for heroin overdose fatalities.

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Case analysis; Impacts of Ruling on Arizona; Your 4th Amendment Rights at a Stop: Arizona Criminal Defense

Police cannot prolong stop’s duration beyond its initial purpose, without reasonable suspicion.

The United States Supreme Court recently decided an important case  that tilted in favor of 4th Amendment protections against unlawful detention, search and seizures.

Police dog

The case arose when a K-9 police officer pulled over the defendant for moving traffic violation.  The driver was in driving on a highway shoulder, in violation of state law.  The officer took the driver’s and passenger’s driver’s licenses, registration and proof of insurance.

The officer returned to his patrol car and began a records check of the driver.  The officer then returned to the suspect’s vehicle, and began questioning both the driver and passenger about where they were coming from and their destination.

After conversing with the driver and passenger the officer returned to his patrol car, and finished the records check.    Following the completion of the records check, the officer called for backup.

While waiting for back-up, the officer began writing a warning ticket to issue to the driver for the traffic violation.  For the third time, the officer returned to the suspect’s vehicle where he issued the warning ticket to the driver.

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Your Rights at a Stop; 10 Defenses for Drug Charges; Mitigating Sentencing; Drug Trafficking Laws; Penalties.

Police Stop Arizona

This is Part 2 of our Case Study on a recent Arizona Court of Appeals ruling involving Marijuana Trafficking charges.

If you’re just joining us, here’s a quick summary of the case: Recently, an Arizona Superior Court granted suppression of the Marijuana evidence that led to the State’s dismissal of the charges. The State promptly appealed arguing that the lower court erred in dismissing the Marijuana evidence found in the vehicle the suspect was driving.   The state argued on Appeal that the detention of the suspect for 40 minutes while awaiting the drug K-9 unit was not unreasonable.

The Appeals Court agreed, and overturned the lower court’s ruling, based on totality of the circumstances at the time.   The factors that the Appellate Court considered were the police officers extensive knowledge and experience in drug trafficking detection; prior drug crimes history of the suspect; voluntary statements made by the suspect at the time of the stop; and the suspect’s consent to search the vehicle he was driving.

In this discussion we focus on criminal rights at a stop, common defenses for drug crimes, laws, and drug trafficking penalties in Arizona.

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Suspect’s 40 minute detention, while awaiting drug K-9 unit was not unreasonable.

Arizona Drug K-9 UnitIn a case decided earlier this month, an Arizona Appeals Court ruled that an officer had enough “reasonable suspicion” to detain a suspect 40 minutes while awaiting the drug K-9 unit.

The court considered the “Totality of Circumstances” or “the whole picture”, to conclude that the detention was not unreasonable.

Case Facts

The suspect was pulled over, after the police officer observed the driver swerving and traveling at varied rates of speed.

The officer approached the vehicle, and requested the driver’s license, and registration.  The driver complied as well as providing the rental car agreement.

The officer asked the driver where he was going, at which point the driver provided several answers. The officer reported that the answers were inconsistent, “confusing” and “perplexing”.   The officer reported that the responses raised the officer’s suspicions.

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