Articles Posted in Constitutional Rights

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Earlier this month, a state appellate court issued a written opinion in an Arizona drug case discussing under what circumstances a defendant’s un-Mirandized statement made to law enforcement should be suppressed. Because the court concluded that the defendant was not in custody at the time she made the statement, it was not suppressible and was properly admitted at trial.

The Facts of the Case

According to the court’s opinion, the defendant was riding as the front-seat passenger in an SUV that was traveling through a border-crossing checkpoint. As the driver pulled into the checkpoint, the border-crossing agent’s drug-detection dog alerted to the vehicle. The agent directed the driver to pull over into the secondary screening area.

Evidently, once in the secondary screening area, law enforcement learned that the vehicle belonged to the defendant’s husband. The agent asked the defendant for permission to search the vehicle, and the defendant consented to the search. The agent’s dog hopped into the vehicle and alerted to a purse and then to two bags in the rear of the SUV. The defendant told the agent that the bags were hers. Inside the bags, the officer discovered several items she believed to be drug paraphernalia. The defendant was arrested and charged with possession of drug paraphernalia.

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In a recent Arizona drug trafficking case, the Court of Appeals of Arizona discussed a defendant’s challenge to a search warrant that was obtained by an officer who omitted facts that the defendant claimed were relevant to the probable cause determination. Ultimately, however, the court concluded that the defendant was unable to meet the high burden of showing that the police officer “knowingly, intentionally, or with reckless disregard for the truth included a false statement.” Thus, the court affirmed the denial of the defendant’s motion to suppress.

The Facts of the Case

Police received a tip that the defendant was selling marijuana out of his house. Officers went to the defendant’s home and made observations with a “stick camera.” The camera allowed officers to see the outside portion of the defendant’s home; however, they could not see inside the home.

The officers observed the defendant and another male leave the house in two separate cars. The defendant drove a van and the other man drove a Honda. They met up with a third man who was driving an Impala, who switched cars with the driver of the Honda. The Impala was then driven back to the defendant’s home. Officers believed this to be a “blind sale” of narcotics; however, when they stopped the Impala they did not find any narcotics or evidence of drug sales.

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In a recent United States Supreme Court opinion, the Court reversed the lower court’s ruling that denied a defendant’s motion to suppress the historical location data obtained by the police from the defendant’s cellular phone provider. The opinion is very important to those charged with an Arizona crime where the prosecution is planning on introducing evidence that was seized as a result of a questionable police search or seizure.

The Facts of the Case

The police were investigating a series of robberies. They arrested one man they believed to be involved and asked him who else was involved. The man provided the police with the defendant’s name and phone number.

Under the Stored Communications Act, the police were able to obtain the historical location data from the defendant’s cell phone. In order to obtain this information, the police needed only to show that there was a “reasonable probability” that the evidence was “relevant and material to an ongoing investigation.” This is a significantly easier burden for police to meet than the normal “probable cause” that police are generally required to have before conducting a search.

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In a recent unpublished Arizona appellate opinion, the defendant appealed a conviction for aggravated assault, for which he was sentenced to a term of 8 1/2 years imprisonment. The case arose when the defendant’s brother rode a bike to their mom’s house, where his brother lived with the mom. The brother had previously had fights with the defendant. When he came up to the gate, he found it was locked. He realized his mother wasn’t going to come out, so he started to ride off on his bike. His brother fired a gun at him twice, hitting him in the right leg.

The weapon wasn’t located, but police found a bullet in the defendant’s pocket and a bullet in a bag he was carrying right after the shooting. A detective met with the victim in his hospital room and saw a circular wound that looked like a gunshot wound on the victim’s leg. He also observed an x-ray that showed a bullet inside his leg. The victim told the detective that “Cotton” shot him—Cotton was the defendant’s nickname. The defendant was charged with aggravated assault with a deadly weapon, which is considered a dangerous offense.

In jail, the defendant called six family members, asking to make sure his brother wouldn’t come to trial to testify against him. He told his mother, sister, niece, and brother the date of the trial and said that if his brother didn’t show up, he wouldn’t be convicted. He also asked his mother to schedule a family meeting with the brother so that she could remind him that if he testified, the defendant would miss family Christmases. He also asked his niece to tell his brother that he would be disowned if he testified. His sister told the defendant that she talked to the victim, and the victim wasn’t going to be a problem. The defendant made many other efforts to get the victim not to show up at trial.

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Understanding Arizona Affirmative Defenses

One of the best ways to understand the entrapment defense in Arizona is to read the standard jury instructions. Arizona Pattern Jury Instructions for criminal cases tracks the language of A.R.S. § 13-206 and provides:

The defendant has raised the affirmative defense of entrapment with respect to the charged offenses. In this case the defendant must prove the following by clear and convincing evidence:

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One of least understood and most commonly charged crimes in Arizona is “Failure to Comply with a Lawful Order” in violation of Arizona Revised Statutes (ARS) section 28-622(A). The crime is classified as a class 2 misdemeanor. The statute provides:

28-622. Failure to comply with police officer…

  1. A person shall not wilfully fail or refuse to comply with any lawful order or direction of a police officer invested by law with authority to direct, control or regulate traffic. (“Willful” and its variations are spelled “wilful” in the statute, an accepted but archaic spelling in American English.)
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An Arizona Legislator introduced HB2574 last month, intending to protect 4th Amendment Constitutional Rights from unreasonable searches.

Passing of this Bill would have outlawed police drone use to collect evidence in criminal offenses. Arizona is one of at least 24 states considering passage of bills designed to address constitutionality of evidence obtained by police surveillance drones. Most of the legislation focuses on respecting a person’s privacy and constitutional rights by requiring police to obtain a lawful warrant before collecting information on a suspect.

But after the bill was met with heavy opposition by Law Enforcement Agencies, the bill was disbanded last week. In the alternative, the committee will review privacy and constitutional issues; economic factors; new technology; and business and government interests related to drone use.

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The question before the US Supreme Court is “When is a DNA search lawful?”

US Supreme Court Justice Alito called it “Perhaps the most important criminal procedure case that this Court has heard in decades.”

The state argued that DNA testing at the time of arrest would help solve cold cases and serious violent crimes. In response, one Justice Scalia pointed out that the fact that a DNA test may be useful does not make it constitutional.

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News Story That Went Viral

Last week in the news, we learned of a suspect was arrested on minor drug charges: unlawful possession of a controlled substance, Xanax. When she appeared in Miami-Dade Circuit Court, the Judge questioned her about her assets, for purposes of a release bond. The suspect laughed in response to the Judge’s questions. He continued to remind her that the proceedings were to be taken seriously, and that they were not in a night club but a court of law. Unfortunately, she did not answer his questions seriously. As a result, the Judge then ordered bail of $10,000.00. At that point, the suspect made an inappropriate exit remark, and disrespectful gesture with her hand. The judge immediately demanded the suspect to return to the podium, and promptly sentenced her to 30 days in jail for contempt of court.

After serving 4 days in jail, the defendant retained a criminal defense attorney. He appealed the harsh 30 day jail sentence and $10,000.00 bond. The defendant formally apologized to the judge for her actions and explained she was under the influence of a controlled substance in her previous court appearance. The Judge remanded her sentence. She was released from jail, and the bond was dropped. She will participate instead in a substance abuse treatment program.

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“Describe the ‘young man’ who walked into the room earlier,” asked the teacher.

Later the student learns the man that the teacher referred to was in fact, 55 years old. So the question begs, “Was he a “man”; or was he a “young man”?

This is an illustration of when a person might be influenced by another. If the witness had not been fully attentive to the man who walked into a room, they may have remembered the man as a younger man, perhaps younger than he really was, simply because it was suggested. Many factors including other people may adversely impact the validity of a witness statement.