In a recent Arizona drug crime decision, the defendant was convicted of transporting a dangerous drug for sale, possessing a dangerous drug, possessing a dangerous drug for sale, possessing drug paraphernalia, and possessing a deadly weapon while committing a felony drug offense. He was sentenced to presumptive, minimum, and concurrent prison terms. The longest of these was five years.
On appeal, he argued that the trial court incorrectly denied his motion to suppress, his convictions for transporting and possessing dangerous drugs violated the double jeopardy rule, and the court had miscalculated his entitlement to pre-sentence incarceration credit.
The case arose when a DEA agent got involved in a group surveillance of a stash house in a Tucson neighborhood that had a reputation for drug trafficking. The police saw two cars with out-of-state license plates involved in suspicious behavior at a convenience store. People with those license plates didn’t come there frequently. There was a lot of back and forth activity between the vehicles, and they left at the same time, which is a common sign of prohibited drug activity.
That evening, an agent said he’d seen a vehicle parked in a stall at a nearby car wash. The DEA agent was dressed in plain clothes and came around the car wash and looked at the defendant’s codefendant, who was driving the car. He approached after she left her car in a hurry to put tokens in the car machine. He told her he was a law enforcement officer and asked to talk to her. She seemed nervous. He was wearing a recording device.
She talked to him after he told her there was heavy criminal activity in that location. She continued to wash her car, and the DEA agent saw his contact with her as consensual. He didn’t block her car with his body or car while talking to her. She told him that one person in the car was Ian, who towed cars, and they were going back to their state where they lived. Meanwhile, a Border Patrol Agent, also in plain clothes, came to the car and tapped on the tinted passenger window. The passenger rolled down the window of her own accord. The defendant was in the backseat, shirtless, with a pocketknife. He told the officer he had a gun when asked.
The Border Patrol agent told the DEA agent there was a gun in the car. The defendant was removed from the car, and the DEA agent cuffed him for safety. In a pat-down search, crystal meth was found, as was a knife. The passenger was asked to get out of the car. They saw in plain view a ceramic pipe, which was commonly used to smoke meth. The DEA agent also opened the rear door and found digital scales, another pipe, and a handgun. Other drug-related items were also found.
The DEA agent would later testify that once a gun was involved, the stop was not consensual. The female driver being questioned seemed to be high and under the influence of crystal meth. The defendant and the woman were arrested.
The defendant moved to suppress the meth found in his pocket and the things found in the car. He argued that the pat down was unwarranted and that the evidence was seized illegally. Without consent, an officer can frisk someone only if an officer has a reasonable suspicion the person was engaged or about to be engaged in crime, and the person was armed and dangerous. The court found that the defendant’s own statement of having a gun generated a reasonable fear for officer safety.
The defendant appealed the trial court’s decision not to suppress. He argued that possessing a knife or gun by itself didn’t generate a reasonable suspicion that a crime was underway or had occurred. Once he put the knife away, there wasn’t a reason to conclude he was armed and dangerous.
The appellate court explained that an officer can’t do protective searches without a reasonable suspicion of a crime. Pat-downs during a consensual encounter are illegal even when officers have a basis to believe the individual is armed and dangerous. However, there was a reasonable suspicion in this case before the encounter. One factor was his holding an open knife while sitting behind a passenger in an out-of-state vehicle and admitting he had a gun. The court upheld the ruling on the motion to suppress.
However, the court did find that there was a violation of the double jeopardy rule in charging the defendant with possession for sale of a dangerous drug. It also modified the sentence to provide more pre-sentence incarceration credit.
If you are charged with a drug crime, contact criminal defense attorney James Novak at (480) 413-1499 in Tempe, Arizona.
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