In 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.
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:
- At least one of them or someone else will act in ways that constitute that crime; and
- Someone agrees with one or more people, intending to promote or help in the committing of a crime; and
- 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