In a recent Arizona Court of Appeals drug case, the court considered a defendant’s conviction for narcotic drug trafficking charges. The defendant was sentenced to a presumptive five-year term of imprisonment and appealed the conviction.
The defense argued that (1) the drugs found in his car should have been suppressed, (2) improper profile testimony was admitted, and (3) the sanction imposed for a Batson violation wasn’t adequate.
Drug trafficking charges are multi-facet in nature, and challenges can take place on numerous fronts. In this article three types of challenges will be discussed:
- Batson Challenge (trial procedure defense);
- Search was not within scope of consent (constitutional challenge)
- Contesting of expert testimony on drug-courier profiling (evidentiary challenge)
The case arose when the defendant’s car was stopped for a traffic violation. At the time of the stop, the defendant consented to a search of his vehicle.
During the search police found 60 grams of cocaine in the rear cargo area of the car. Consequently, the defendant was indicted for charges of narcotics possession and transportation for sale.
The defense moved to suppress the drug evidence on the basis that the stop, search, and seizure violated his 4th amendment rights. He also asked that the detective be excluded from testifying as an expert witness for the prosecution.
The court admitted testimony of the detective as expert, but did not allow the officers’ observations of the baseball cap or tattoo displayed on the suspect’s arm.
The defense raised a Batson challenge during jury selection, contending that the potential Hispanic jurors were unjustly removed from the initial pool of jurors summoned from the community.
The trial court reinstated three of those potential jurors previously struck, after finding that the prosecution failed to give adequate race-neutral reasons for the strikes.
Two of those brought back were impaneled as the final jurors that found the defendant guilty of narcotics trafficking.
The state dismissed the possession charge. But sentenced the defendant to 5 years in prison for the transportation of narcotics conviction.
On appeal, the defendant argued that the drugs seized in the warrantless search of his car should have been suppressed.
The officer had stopped the defendant initially because he didn’t use his turn signal to switch lanes, causing the driver next to him to suddenly apply his brakes.
After the driver was pulled over, the officer requested him to provide routine documents including license, auto registration, and insurance. The officer then asked the defendant to get out and wait for him next to his squad car while police completed the records check. The defendant agreed and was cooperative throughout the stop.
The officer then proceeded to conduct a routine vehicle identification number (VIN) check. As the officer moved closer to the defendant’s vehicle to see the VIN, he noticed items in the the defendant’s car that police believed were commonly associated with those of a illegal drug couriers. Those items included a baseball cap, and particular tattoo displayed on the defendant’s arm.
The officer asked the defendant if there were illegal drugs in his vehicle. The defendant denied, but agreed to a vehicle search for which he consented verbally and in writing. Shortly after the search began officers found cocaine in the spare tire’s storage area.
The defendant argued that it was unlawful for the deputy to stop him in the first place and to extend the stop to check his federal VIN stickers.
He also argued the search extended beyond the scope of his consent. The court disagreed and determined that the officer acted appropriately within the consent. The court noted that the consent included authorization for officers to search of all spaces within the vehicle.
The Appeals Court agreed with the trial court. It held that an officer asking about matters unrelated to the traffic stop doesn’t turn the encounter into something other than a lawful search and seizure.
The court held that even if the deputy had kept the suspect longer than he should have, the conversation that took place between the defendant and officers appeared to be consensual. The court noted that police are required to dismiss a driver at the point in which the time expires which is needed to satisfy the original purpose of the stop. The exception to this is if the encounter develops into one that is consensual. In that event the police are not required to dismiss the suspect at that point.
Next, the court noted that in the United States Supreme Court case of Batson v. Kentucky, the use of peremptory strikes to exclude possible jurors based on their race violates the Equal Protection Clause of the Constitution. When this is claimed, the person challenging the strikes must show there was discrimination on the face of things. The striking party must then give a race-neutral reason it struck a juror. The trial court then decides whether the party challenging the strike showed purposeful racial discrimination. The appellate court noted that the matter was one of first impression in Arizona, and the strikes were not justified.
The court looked at different approaches used in other states to remedy the situation. It held that if a Batson objection is sustained, the trial court has the discretion to restore the jurors who were improperly challenged, or grant a mistrial. It also found other remedies were possible, as determined by the scope and character of the violation. It determined that the trial court had acted appropriately in reinstating the jurors who weren’t properly struck.
The defendant also claimed the trial court had erroneously admitted improper expert testimony. The defense argued that the state’s expert testimony what was basically profile evidence related to how drug transactions happen. The state responded that the testimony at issue didn’t count as profile evidence, and even if it was, the error was harmless. The appellate court explained that general expert testimony about how drug traffickers operate is usually upheld. However, it isn’t appropriate for the testimony to compare a particular organization’s conduct to the defendant’s conduct in a specific case.
In this case, the appellate court found that as long as there was a proper foundation, the police officer could provide an opinion about whether the specific defendant had the drugs for personal use or sale. The conviction and sentence were affirmed.
Updated July 12, 2018
On July 11, 2018, the Arizona Supreme Court affirmed the defendant’s conviction and sentence.
The court reasoned that the trial court is in the best position to review the circumstances and validity of Batson claims, and thus, decide on the most appropriate remedy.
The Arizona Supreme Court noted that the judge restored unfairly excluded jurors, and forfeited the three discriminatory challenges that the prosecution attempted to use.
The Court determined that the trial court’s decision was proper, and it did not abuse it’s discretion by applying these remedies.
The AZ Supreme court reviewed the arguments for additional remedies that could have applied. However, the Court noted that the defendant did not reserve the right to seek other alternatives besides a retrial.
When Can Police Lawfully Search Your Vehicle?
If police have reasonable suspicion that you have violated the law, they can pull you over for a traffic stop. Without it, the stop is unlawful.
The exception to this is an official safety checkpoint stop. At a checkpoint, police must stop vehicles according to an advanced directive such as every 2nd or 3rd vehicle, or other mathematical pattern.
For routine stops, police can lawfully ask for identification, driver’s license, vehicle registration, insurance documents, and if there is a firearm in the vehicle.
Police can also conduct a background and Vehicle Identification Number (VIN) check. Though you are not required to answer questions asked by police regarding your involvement in a suspected crime, they can still ask.
Without a probable cause, a warrant, or your consent, police cannot lawfully conduct of search of your vehicle or belongings. However, their observations during the routine stop can be used to determine if probable cause exists based on totality of the circumstances.
If the evidence resulted from an unlawful search and seizure, your criminal defense attorney can file a motion to suppress it with the court so that it cannot be admitted for prosecution.
What is Drug Courier Profiling and When is it Admissible?
Drug courier profiling is a practice used by drug enforcement agencies and police to help them identify certain behaviors and characteristics displayed by an individual that is commonly associated with drug trafficking.
The U.S. Supreme Court has held that drug courier profiling evidence cannot be used as a basis to reach a verdict of guilty v. non-guilty verdict.
In deciding questions of reasonable suspicion or probable cause, the U.S. Supreme Court has rejected expert testimony for drug courier profiling. Instead, it determined that the basis for consideration should be on “totality of circumstances” (United States v. Sokolow).
This does not preclude police and drug enforcement officials from continuing to engage in the practice as part of meeting the totality of the circumstances standard.
Penalties for Narcotics Transportation Charges
In Arizona, narcotics transportation for sale charges are brought as Class 2 Felonies which carry severe penalties.
A first time non-dangerous narcotics trafficking conviction calls for minimum sentencing of 4 years and maximum sentencing of 10 years in prison. If mitigated factors exist a person can qualify for a mitigated sentencing of 3 years.
But if the amount of the narcotics involved in the conviction is more than or equal to the State’s Threshold Amount under A.R.S. 13-3419, the defendant will not be eligible for mitigated sentencing. If the offense involved an aggravated factor such as use of a deadly weapon, it will result in aggravated sentencing of 12.5 years. The maximum fine for an individual is $150,000 per person for each charge and up to $1,000,000 for businesses.
Criminal Defense Attorney for Drug Transportation Charges Mesa AZ
One thing to keep in mind is that an arrest is not a conviction. You have the right to defend your charges and hire a private criminal defense attorney to represent you.
James Novak is an experienced drug transportation defense attorney. If retained, James Novak, will evaluate your case to determine the most effective defenses that apply and may lead to the best outcome in your case. He will base defense strategies and challenges on the evidence and circumstances surrounding the charges.
In this case, the court agreed with one of the challenges. So while in it did not agree with all of them in this case, such defenses are often successful. If the evidence was obtained in violation of your rights, the court will exclude it from being used against you. In that event, it usually results in a dismissal of charges.
If a dismissal the drug transportation charges is not possible, other options will be explored to determine what will result in the most favorable resolution of your charges. Examples of favorable resolutions can be obtained through deferred prosecution, plea bargains, reduction in charges or sentencing, avoidance of jail or prison, waiver or reduction of fines.
If you face drug charges in Tempe, Chandler, Gilbert, Scottsdale, Phoenix, or Mesa, consult drug crime attorney James Novak, of the Law Office of James Novak PLLC. James Novak is a former Maricopa County Prosecutor, who practices exclusively in criminal defense. If retained, he will work hard to defend your charges, protect your rights, and personally handle your criminal matter. The state and prosecution do not have to tell the court that your rights were violated when the police stopped you or that the evidence was obtained unlawfully. Mr. Novak offers a free initial consultation for people facing active criminal charges in his service areas.
If you have been charged with a crime, contact the Law Office of James Novak though the website. You can reach Attorney James Novak directly by calling (480) 413-1499 regarding your criminal matter.
- A.R.S. § 13-3407 (possession or transportation of dangerous drugs)
- A.R.S. § 13-3408 (narcotics transportation for sale)
- A.R.S. § 28 – 815 A
- Maricopa County Sheriff’s Office | Jail Information for Families
- Maricopa County Superior Court – Drug Court Program
- Criminal Sentencing Guidelines 2017 – 2018
- High Intensity Drug Trafficking Task Force – Maricopa County
- United States Drug Enforcement Agency – Phoenix AZ Division
- Police Report and Records Search – City of Mesa AZ
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