In a recent Arizona appellate case, a defendant appealed from his conviction and sentences for possession of dangerous drugs and possession of drug paraphernalia. He was arrested in 2014 after being found in possession of meth in a plastic bag. The police had responded to a call about a suspicious man going into yards and knocking on doors. The man was reported to be Hispanic and in his 30s.
The defendant matched the description of a 911 call and was located a short distance away behind a retaining wall on private property. He identified himself, and the officer asked if he had anything he wasn’t supposed to have, like drugs or guns. He answered yes and was ordered to stop and place his hands on his head. He took his hand out of his pocket. The officer saw a plastic baggie sticking out. When he took it out, he saw it held a substance that looked like meth.
The meth was in the baggie, which was also in another baggie. He was arrested and searched, and the officers found a plastic baggie that held syringes. He claimed this was for insulin for a medical condition, which he stated wasn’t diabetes. He was indicted for possessing a dangerous drug (a violation of A.R.S. § 13-3407(A)(1), (B)) and for possession of drug paraphernalia (a violation of A.R.S. § 13-3415(A), (F)(2)).
Based on priors, the court sentenced him as a category 3 offender. He had a mitigated term of six years for the drug possession charge, along with a concurrent mitigated term of 2.25 years on the paraphernalia possession count. He had to serve 551 days of pre-sentence incarceration credit.
The defendant appealed. Among other arguments, the defendant argued he should have been able to impeach the officer who took the baggie regarding the weight of the seized meth. The officer testified that the drugs in the package that was seized weighed two grams, while the forensic scientist testified that they weighed 1.0131 grams. The appellate court explained that these differences didn’t raise an issue of the officer’s truthfulness.
The defendant also argued that the court made a mistake in granting the prosecution’s motion to use the 911 call, since he didn’t have the opportunity to cross-examine the caller. In the recording, the caller said the person who was the subject of the call was growling and scary and next to them in the neighbor’s garden. He argued the recording was hearsay.
The appellate court explained that the Confrontation Clause only prevents the admission of testimonial statements. Statements made to the police, such as during a 911 call, can be considered testimonial and barred by the Confrontation Clause when there’s no ongoing emergency, and the main goal of the interrogation is to establish past events that are potentially relevant to a later prosecution.
However, a statement is not testimonial if the circumstances objectively show the main reason for an interrogation is to allow the police to meet an ongoing emergency. In this case, the caller’s words weren’t testimonial because they weren’t given to establish facts but to ask for police help. Therefore, there was no violation of the defendant’s confrontation rights.
For this and several other reasons, the convictions and sentences were affirmed.
If you are charged with any type of drug crime, contact criminal defense attorney James Novak at (480) 413-1499 in Tempe, Arizona.
- A.R.S. section 13-3407(A)(2)
- A.R.S. § 13-3415(A)
- A.R. S. § 28-1381(A)(3) (Driving while under the influence)
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