Articles Posted in Drug Laws

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


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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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


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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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

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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All Meth crimes in Arizona are Charged as felonies; all felonies expose a person to prison.

215628_addiction.jpgLaw enforcement officers recently conducted the biggest methamphetamine bust in Maricopa County’s history. Sheriffs investigated for several months before locating 18 bricks of meth (51 pounds) worth almost $1 million. The twenty-six year old suspect who possessed the bricks was arrested for meth possession and other felony charges. As outlined below, he may face serious prison time, depending on his prior felony record and other factors.

Earlier this year, Phoenix AZ participated in “Operation Justice V” sponsored by the U.S. Marshall. In one week 231 persons without outstanding felony warrants were arrested. A large number of those were wanted for “Dangerous Drug” offenses including Meth crimes.

The possession and sale of meth is a growing illegal drug market in Arizona, and some believe it has reached crisis proportions, now affecting teenagers as well. Even though Arizona’s teenage meth use has declined in recent years, Arizona remains among the top 10 states for teen meth use.

Meth is highly addictive and affects the neurotransmitter dopamine. It can be smoked, injected or snorted. Users experience a rush as well as increased energy, reduced appetite, and increased respiration. There is a danger of violent behavior, irritability or psychosis. Importantly, long-term use of methamphetamines can cause brain damage that is akin to Alzheimer’s.

Due to the addictive nature of Methamphetamines and other Dangerous Drugs, they have been found to lead other serious crimes by users, and dealers that include theft, burglary, assault, sexual assault, aggravated assault, home invasions, even murder.

Meth is classified in the Arizona Revised Statutes as a “dangerous drug.” Other “dangerous drugs” include LSD, ecstasy, mushrooms, mescaline and GHB. Willful possession of a dangerous drug can subject anyone who is convicted to serious punishments at the sentencing stage.

Possession of methamphetamine is a Class 4 felony, until someone possesses more than 9 grams, as in the case described above. Then it is charged as a Class 2 felony because it is assumed to be possession for sale. It is important to note that possession of methamphetamine cannot be charged simply as a misdemeanor, even if you have no priors.

Penalties are increased substantially for possession of large quantities of meth. If someone possesses more than 9 grams and it is a first offense, the presumption is that it is for sale. In that case, the minimum imprisonment sentence is five years, the presumptive sentence is 10 years and the maximum sentence is 15 years. However, if someone possesses more than 9 grams and it is not a first offense, the increase in sentencing jumps dramatically. A minimum imprisonment sentence for possession for sale of meth on a second offense is 10 years.

First time drug offenders are eligible for a deferred prosecution program in which they participate in probation during which the offender is subject to drug testing among other things. If they do not meet conditions of their probation, they may face jail time.

The Arizona Revised Statutes permit mitigation or enhancement of a sentence for reasons such as prior criminal convictions, the amount of the drug, and more. If charged with a Class 2 felony and aggravating factors, a defendant can face over 12 years in prison.

The sentencing laws are even harsher for those convicted of manufacturing methamphetamine. In response to the meth crisis, in 2000, Arizona’s child abuse law was expanded to include a presumption of endangerment when children or vulnerable adults are found at meth labs.

Additional Resources:

About Meth (Arizona Attorney General)
Arizona Drugs Defined Under Criminal Code
Mesa AZ Police Department

Phoenix Drug Defense Attorney.jpg

TruNarc: Police Drug Detection
Police Departments around the Country have begun using TruNarc, a mobile device used for drug testing. The device can rapidly detect single or multiple compounds and drugs, including those more difficult to detect such as “bath salts”, within seconds. For the last 50 years police have used lab kits to test for narcotics or illegal drugs. In effect TruNarc in said to speed up the drug identification process, allowing police to be more efficient with their time, and decrease turnaround time in drug cases.
How it Works

The device has a laser which is pointed directly at the suspicious drug sample. It then generates a distinct spectrum, similar to a finger print. It is then analyzed for identification in the device’s drug library contained the unit. It can be easily updated for new dangerous or designer drugs. Records can be automatically produced, to include the name of the drug, time and date stamps and anything else the police department wishes to program into it.
Industry Recognition

The core technology used for the Thermo Scientific device uses “Raman spectroscopy”, which is recognized as an analytical tool by the “Scientific Working Group for the Analysis of Seized Drugs (SWGDRU). TruNarc’s results were compared to the same drug samples as certified laboratories. The conclusions were that TrucNarc had produced 80% – 100% positive results, with “0” false positive results.


Below are 7 items in favor of TruNarc Testing Device:
• Device is lightweight and easy to use;
• Immediate results; Eliminates need for backlogged and costly lab processing
• Detects compounded and new “designer”, bath salts and synthetic drugs;
• Can be used in addition to drug testing kit for presumptive testing;
• Nonintrusive. The test does not require contact;
• Reduces time for Criminal Case Resolutions:
• Police K-9 Dog Drug Screeners costs between $20,000.00 and $$29,000.00 to train. The cost of the device is equal or less for TruNarc $20,000.00 currently.


Below are 7 items that oppose TruNarc Technology for drug testing:

• Costly: $20,000.00 per device;
• Lack of background science, experience or reported statistics of use in the Field by police;
• Police officers would need to be trained to operate, minister, and maintain it;
• If adopted by the states, it will face much challenge by experts and criminal defense attorney, regarding administration, accuracy, validity, maintenance, and operation of the device (similar to the challenges that breathalyzers presented.);
• Technology may not prove to serve as an effective substitute for full lab analysis by a certified laboratory and trained lab professional;
• Judges around the country have yet to decide if the test results from TruNarc can be admissible in trial.
• No case law or documented challenges have been argued against it for drug charges involving the device.


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Drug Possession Laws in Phoenix AZ
In Arizona, a person may be charged with possession of an illegal drug if they are knowingly in possession of Marijuana, an illegal drug, or a dangerous drug, defined under A.R.S. 34 13-3401. The higher the quantity of a drug a person is found to have in their possession, the higher the sentencing and penalties. One of the reasons for this is that law enforcement perceives a large quantity of an illegal drug as a sign that the drugs are in their possession to sell, intended for sale, manufacture, distribution, or transport. All of these drug offenses call for harsh prison sentencing.

Drug Sentencing Guidelines

Under Arizona Drug laws A.R.S. 13-3419: Arizona has separate sentencing ranges for convictions into two categories:
1) The illegal drug possession charges involved a quantity below the “Threshold Amount”;
2) Illegal drug possession charges that equal or exceed the “Threshold Amount”.

• Below Statutory Threshold Amount –
Drug Possession with a quantity that falls below the statutory Threshold Amount
may be charged as a Class 5 to Class 2 with prison sentencing of .05 to 12.5 years;
• Equal or Exceeding Statutory Threshold Amounts –
Drug Possession convictions involving quantities that equal or exceed the the statutory Threshold Amount may be charged as a Class 5 to Class 2 with prison sentencing .05 to 15 + years.

The Threshold Amount is the amount specified by law under A.R.S.13-3401.36 for a the quantity of a certain drug. The higher the amount over the Threshold, the more severe the Sentencing and penalties. Additional penalties include fines, fees, community service, drug and alcohol counseling or treatment, and other fines deemed necessary by the court.
Sentencing Factors

Other factors besides quantity the court will consider in sentencing if convicted include:
First drug offense verses repeat offense;
• Prior criminal history, if any;
• Purpose of the drug in a suspects possession (personal use verses sales)
• Other charges brought at the same time (violent or dangerous crimes)
• Mitigating or Aggravating factors
• Classification of drug (Marijuana, Narcotic, or Dangerous Drug)

Criminal Defense Lawyer for Drug Possession Phoenix, AZ
If you face drug possession charges in Arizona, you should consult an experienced criminal lawyer regarding your matter. They will protect your rights and defend you through the criminal defense attorney. Drug crimes of any kind, may expose a person to incarceration, and other harsh penalties. There are often defenses that exist that can be used to challenge the evidence including the quantity of a drug a person is accused of possessing. Your attorney will make sure you are treated fairly; protect your rights, and defend your charges. In some cases they can help you avoid prison or jail sentencing; lower the charges; and or get the charges dismissed. Your chances of getting a favorable decision in your case, will increase significantly with retention of a private practice drug defense attorney.

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Methamphetamine “Meth” Charges in Phoenix AZ

Under Arizona Law A.R.S. 13-3401.6 the drug Methamphetamine or “Meth” is classified as a “Dangerous Drug”. A person may be guilty of a Dangerous Drug crime if they knowingly possessed any amount of Methamphetamine or “Meth” as defined under A.R.S. § 13-3407.
Arizona Dangerous Drug Offense Law and Classifications

A.R.S. § 13-3407. Possession, use, administration, acquisition, sale, manufacture or transportation of dangerous drugs; classification:

A. A person shall not knowingly:

1. Possess or use a dangerous drug (Class 4 Felony):
2. Possess a dangerous drug for sale (Class 2 felony);
3. Possess equipment or chemicals, or both, for the purpose of manufacturing a dangerous drug (Class 2 Felony for Meth);
4. Manufacture a dangerous drug (Class 2 Felony);
5. Administer a dangerous drug to another person (Class 2 Felony);
6. Obtain or procure the administration of a dangerous drug by fraud, deceit, misrepresentation or subterfuge (Class 3 Felony);
7. Transport for sale, import or offer to transport for sale or import or sell, transfer or offer to sell or transfer a dangerous drug into Arizona. (Class 2 Felony)

A person may be convicted of Dangerous Drug possession if they knowingly possession any amount of Methamphetamine or “Meth”, for any purpose described above.

“Threshold Amount” – A.R.S. § 13-3401

Under Arizona Law A.R.S. § 13-3401. 36 (e) “Threshold Amount” means: means a weight, market value or other form of measurement of an unlawful substance. The specified Threshold Amount for methamphetamine is Nine grams. This includes methamphetamine in liquid suspension; or any combination of those unlawful substances listed under this law. If a person is found to have in their possession an amount that equals or exceeds the Statutory Threshold Limit, for a particular drug, they will be exposed to mandatory prison sentencing. The length of the prison terms a person will face increases based on the amount of the drug that exceeds the threshold limits for that drug.

Sentencing Guidelines for Meth, Dangerous Drug Crime Convictions

If a person is convicted of a methamphetamine or Meth crime, they may be exposed to harsh prison sentencing that can range from 2 to 15 years prison depending on the factors involved. Factors considered for sentencing include:

 Aggravating Factors;
 Mitigating Factors;
 Whether or not the defendant is over 18 years of age;
 Quantity of the substance;
 If the quantity exceeds the Statutory “Threshold Amount”;
 Whether or not the crime involved a “Dangerous offense”;
 Prior DUI or Criminal offense convictions;
 First time or repeat drug offense;
 If the circumstances caused physical injury to a minor under fifteen years of age ARS § 13-3407(A)(1).

Other penalties include large monetary fines, fees, assessments; mandatory counseling; community service, and other penalties.

Criminal Defense Attorney for Meth Charges, Phoenix AZ

Crimes involving any Dangerous Drug, particularly Meth crimes are very serious charges. All drug charges involving Meth crimes, if convicted, will expose a person to prison sentencing, exorbitant fines; and other harsh penalties. If you were arrested for any illegal drug charge you should consult an attorney who frequently defends drug charges in Phoenix AZ or Maricopa County. A good criminal attorney will make sure your rights are protected; defend your charges; and work to get the best possible outcome in your case. If the charges cannot be dismissed, your attorney will look for mitigating factors that will help get your sentencing reduced, so that it has the least adverse impact on your life as possible.

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