Articles Posted in AZ CRIMINAL DEFENSE TOPICS

5 Things You Should Know about Your Rights in a Police Stop and Arrest

Police-Stop-Unlawful-Flight-Attorney-Mesa-AZ-300x200You cannot be arrested solely for a non-criminal traffic violation in Mesa, AZ.

However, that changes if you fail to stop or try to elude police when you are signaled to pull over. Failure to stop violates Arizona’s unlawful flight laws.

The most important thing you can do when you realize police are signaling you to stop, is to pull over safely and promptly.

How to Protect Your Rights in a Plea Bargain and Deferred Prosecution

Maricopa-County-Trial-Statistics-HD-e1494596719400If you have criminal charges, it is likely that you will be faced with the decision of whether or not to take your case to trial.  As an alternative to trial, you may be offered a plea deal or participation in a deferred prosecution program.

Last year Maricopa County Superior Court reported that of 99.8 percent of terminated DUI and criminal cases, only 2.2 percent went to trial.

The United States Sentencing Commission (USSC) reported similar statistics in 2016.   The USSC reported 97.3 percent of criminal cases were resolved without trial, while only 2.7 percent went to trial.

Aggravated Assault, Weapons Misconduct, Domestic Violence, Failure to Obey Police Orders: Laws, Penalties, and Criminal Defense in Arizona

aggravated-assault-1In Arizona, we recently learned of a tragic story.

Police officers answered a domestic dispute, and the suspect was fatally shot by police.

When the officer arrived on scene, he encountered a woman outside a home.

Arizona Supreme Court preserves defendant’s rights to inform jury of planned testimony in opening statements.

Arizona-Desert-Crimes-1-300x200In any criminal trial, the timing in which the defense theory is presented to the jury, is equally as important as the defense itself.

In a recent case decided by the Arizona Supreme Court, the defendant was charged with Marijuana transportation, and challenged the charges using Arizona’s Dress defense.

The defendant testified that smugglers armed with weapons, forced him to carry large bundles of Marijuana  into the Arizona  desert.

Arizona Supreme Court rules suspect was not in custody for purposes of “Miranda”; Facts about Miranda Rights that Police will Likely Not Tell You.

Remain-Silent-2
This year marks the 50th anniversary of the landmark decision by the United States Supreme Court  Miranda v. Arizona, 1966.

Since that time, police have been required to read suspects their Miranda rights while in custody before they are interrogated.

The Miranda principle has faced many legal challenges, including when police are required to read the rights.

Arizona Supreme Court Adopts “Odor-Unless” Standard: What it means for Arizona and AMMA qualified users

Marijuana-Smoking-1The Arizona Supreme Court recently considered a case involving the question of whether or not the smell of marijuana was enough to establish probable cause to issue a search warrant.

The Court  needed to evaluate this issue in light of the Arizona Medical Marijuana Act (AMMA).

The AZ Supreme Court ruled that Marijuana odor can establish probable cause, unless there are other facts that would cause a reasonable person to believe that the suspect’s activities were compliant under the AMMA.

Arizona Supreme Court Limits Use of Entrapment Defense in Cocaine Case

Drug-Deal-Entrapment-300x200

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

Continue reading

Criminal Defense Challenges for Prohibited Possession of Firearms Charges in Arizona

                                                        Questions before the Court

judge-black-and-white-146626_1280-300x237

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.

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

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
syringe-293867-m

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.

Continue reading