James E. Novak
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Earlier this month, a state appellate court issued a written opinion in an Arizona gun crime case involving the defendant’s challenge to the legality of the search conducted by police officers that led to the discovery of the firearm. Ultimately, the court held that the defendant voluntarily answered the questions posed by police, and he was not seized before the police officers developed probable cause to search his vehicle. Thus, the court affirmed the defendant’s conviction.

According to the court’s opinion, two police officers pulled into a dark parking lot and saw the defendant sitting in a car with another person. The officers observed the two men for about a minute before approaching the defendant’s car. One officer approached on each side of the car, and as they approached, they recognized the smell of burnt marijuana.

One of the officers asked the defendant, “Real quick, [are] there any guns, bombs, knives, Bazookas, or dead bodies inside the vehicle that I need to learn about?” The defendant replied that there were not. When the officer followed up with a request that the defendant exit the car, the defendant told him no and asked for a supervisor or a lawyer. The defendant was removed from the car, and the officers recovered a firearm and narcotics from the car. Subsequent to his arrest, the defendant admitted to possession of the gun and the drugs.

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If an Arizona criminal trial ends up in a conviction, the defendant is entitled to an appeal to review any and all alleged legal errors that were made by the court during the trial. While the right to an appeal is automatic, there is not necessarily a corresponding right for the appellate court to hear every issue that the defendant raises on appeal. Typically, to preserve an issue for appeal, the defendant must lodge an appropriate objection during the trial allowing the trial judge to correct the alleged error. If a defendant fails to make an objection to a judge’s legal decision during the trial, they may be precluded from raising the issue on appeal.

Importantly, not every issue needs to be objected to in order to preserve a defendants’ appellate rights. For example, a defendant can always challenge the sufficiency of the evidence on appeal, even if the issue was not raised in a post-trial motion. However, most other potential issues, including evidentiary issues and weight-of-the-evidence issues, must be raised to be preserved. If an issue is not preserved, an appellate court can still review the record for plain error; however, this is an exceedingly difficult standard to meet.

Recently, the U.S. Supreme Court agreed to hear argument on a case involving the purported waiver of a defendant’s right to challenge the reasonableness of his sentence. In that case, the defendant was convicted of a federal drug crime and sentenced to 24 months of incarceration to be followed by a period of supervised release. While on supervised release, the defendant was arrested for another drug case. The defendant was convicted of the second drug offense, which was a violation of his supervised released. The defendant conceded that he was in violation of his supervised release, and asked the court for a concurrent 12-month sentence. However, the court sentenced the defendant to a consecutive 12-month term of imprisonment.

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When someone is charged with an Arizona crime, they have the ability to file a motion to suppress, challenging the admission of evidence that the prosecution plans to introduce at trial. In essence, a motion to suppress argues that certain evidence obtained by police was done so in violation of the defendant’s constitutional rights. Most often, motions to suppress are litigated in Arizona drug cases or cases in which there was a weapon recovered. However, a motion to suppress can be argued any time that evidence is illegally seized or when a statement is illegal taken.

One important aspect of a motion to suppress is the concept of standing. Standing refers to the defendant’s ability to argue a motion to suppress. In order to bring a motion to suppress, the defendant must have standing. Standing is a complex legal concept, but at its most basic it requires a defendant to have a subjective expectation of privacy in the place searched. In addition, that sincerely held expectation of privacy must be one that is recognized by society as reasonable. For example, a defendant who tosses a gun into a trash can as police drive by may not have standing to bring a motion to suppress. This is because the defendant abandoned the gun, eliminating any expectation of privacy that he may have otherwise had.

If the court grants a motion to suppress, the challenged evidence cannot be admitted at trial. In many cases, this results in the prosecution withdrawing the case because there is no longer sufficient evidence to prove the case. However, there are cases in which a successful motion does not end the case. For example, a motion to suppress may preclude only some of the evidence from admission.

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Earlier this month, a state appellate court issued a written opinion in an Arizona gun case requiring the court to determine if the lower court should have granted the defendant’s motion to suppress. The case contains an informative discussion on police officers’ ability to stop a motorist. Specifically, the case presented the court with the opportunity to discuss whether the police had a reasonable suspicion that the defendant was engaged in criminal activity when they stopped his car. Finding that such a suspicion existed, the court affirmed the denial of the defendant’s motion to suppress.

According to the court’s opinion, detectives responded to a sexually explicit ad on backpages.com, a website known to the detectives as one that frequently contained ads for prostitution. Through text messages, the detectives set up a meeting with two women. The detectives waited at the pre-arranged meeting place. They saw the defendant driving a car into the apartment complex and drop off two women. Police stopped the women, and detectives determined the vehicle was registered to the defendant, who was on supervised release for a robbery.

The detectives stopped the defendant’s car and approached. Ultimately, a handgun was recovered from the front seat, by where the defendant was sitting. The defendant was arrested and charged accordingly. Before trial, he filed a motion to suppress the gun, arguing that it was recovered as the result of an illegal stop. The trial court denied the motion, and the defendant appealed.

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Earlier this month, a state appellate court issued an opinion in an Arizona manslaughter case involving a defendant’s claim that he should have been entitled to fully inform the jury about the prior aggressive actions taken by the victim against the defendant’s pregnant step-daughter. Ultimately, the court rejected the defendant’s claim, affirming his conviction.

According to the court’s opinion, the plaintiff lived with his wife and step-daughter and her boyfriend, M.R. One day, the defendant got into an argument with M.R., and pulled out a gun. The defendant put the gun down, but then the two men got into a subsequent argument, and the defendant shot M.R., killing him. The defendant claimed that M.R. tried to wrestle the gun from him; however, no other family members were present to corroborate the defendant’s account.

The defendant was charged with manslaughter. Before trial, the defendant sought to introduce evidence of the prior aggressive and abusive actions of M.R. toward his step-daughter, who was pregnant at the time several of the incidents took place. The court reviewed the defendant’s request, and determined that the jury should be permitted to hear about the incidents, but not that the defendant’s step-daughter was pregnant at the time. The court explained that “the fact of the pregnancy is prejudicial and raises a greater possibility that the jury would be misled by focusing on the unborn baby as opposed to the Defendant’s state of mind.” Thus, the court allowed evidence of the incidents, but left out the fact that the step-daughter was pregnant.

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Earlier this month, a state appellate court issued a written opinion in an Arizona homicide case discussing the admissibility of the defendant’s statement. Ultimately, the court allowed the admission of the defendant’s inculpatory statement, although it was made after he invoked his right to an attorney, because the defendant “reinitiated communication” with law enforcement.

According to the court’s opinion, an inmate was allegedly attacked by the defendant and several others while in prison. The inmate died as a result of his injuries, and the state brought murder charges against the defendant. After the incident, the criminal investigations unit (CIU) tried to speak with the defendant, who invoked the right to an attorney.

The next morning, members of the prison’s special security unit (SSU) tried to talk with the defendant, who again refused to speak about the incident. However, as the SSU members were leaving, the defendant stated that he would talk to one specific member of the SSU. The defendant explained that he had “game-changing information” for this individual. The SSU arranged to have the requested member of SSU meet with the defendant, and the defendant admitted he was involved in the incident, but claimed he was not the killer.

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Earlier this year, a state appellate court issued a written opinion in an Arizona child pornography case discussing whether the lower court correctly denied the defendant’s motion to suppress. The defendant’s motion sought suppression of the illicit images as well as information that officers obtained through a subpoena sent to his internet service provider (ISP). Ultimately, the court concluded that such information could only be obtained with a warrant, however, because officers were acting in good-faith at the time they gathered the information, the evidence in the defendant’s case was not suppressible.

According to the court’s opinion, undercover detectives working in a child pornography sting placed an ad in an online forum, asking those interested in child pornography and incest to join a messaging group. Several users responded to the advertisement, including a user by the name of “tabooin520.” Within days of being added to the group, tabooin520 posted images portraying child pornography. Detectives sent a private message thanking the user for posting the photos, and the user responded with additional pornographic pictures of children.

Arizona detectives were working with federal investigators on this particular sting, and asked investigators to serve a subpoena on the messaging application, seeking the user’s IP address. With this information, detectives determined the defendant’s internet service provider. Detectives then issued a subpoena seeking the physical address associated with the IP address.

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Recently, the Arizona Supreme Court issued a written opinion in an Arizona homicide case discussing whether the defendant’s conviction for murder was invalid based on a double-jeopardy violation. The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution provides that “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” While the language used in the clause is somewhat archaic, this case illustrates that the principles behind the clause are as essential today as they ever were.

According to the court’s opinion, the defendant was tried for murder in 2013, after he shot his neighbor. Evidently, the neighbor approached the defendant after the defendant asked him to leave. The defendant testified that he believed the neighbor was armed.

After the parties presented their cases, the jury could not agree on whether the defendant was guilty of first-degree murder, marking the box “unable to agree” next to the first-degree murder charge. The jury found the defendant guilty of second-degree murder, and the court sentenced him to 16 years incarceration. An appellate court later reversed the conviction based on procedural grounds, remanding the case for a new trial.

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Last month, a state appellate court issued an opinion in an Arizona homicide case discussing whether the lower court properly excluded evidence of the defendant’s brain damage. The court acknowledged that a defendant is permitted to introduce evidence showing he had a character trait for acting impulsively. However, ultimately, the court concluded that he could not present evidence of brain damage to corroborate that trait. As a result, the court affirmed the defendant’s conviction for murder.

According to the court’s opinion, the defendant was charged with murder after he shot his then-girlfriend. Evidently, the defendant’s girlfriend ended their relationship. Two days later, she went to his home to return a gift. The defendant begged her to stay, and she refused, taking the couple’s children with her. The defendant allegedly followed his ex-girlfriend, blocked her car, and then shot her.

The state charged the defendant with first-degree premeditated murder. In support of his defense, the defendant sought to admit testimony from a medical doctor. The doctor planned to testify that the neuropsychological tests he performed were “consistent with significant and permanent diffuse brain damage.” According to the doctor, this meant the defendant was “more likely to have a character trait for impulsivity.” The prosecution objected, and the court precluded the admission of the doctor’s testimony. The defendant was convicted, and appealed the court’s decision to exclude his expert’s testimony.

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Recently, a state appellate court issued a written opinion in an Arizona burglary case discussing the defendant’s motion to suppress the cell-site location data (CSLD) that the prosecution used to tie the defendant to a co-defendant, who was alleged to have committed several burglaries. Ultimately, the court concluded that the CSLD was not seized in violation of the defendant’s Fourth Amendment rights and affirmed her conviction.

According to the court’s opinion, police officers were investigating a string of burglaries. After receiving a tip that the co-defendant was going to commit another burglary, police officers obtained a warrant to search the co-defendant’s truck, home, and warehouse. When police stopped the co-defendant’s truck, the defendant was in the passenger seat. The defendant was in possession of several stolen pieces of jewelry.

In a single trial, the prosecution tried both defendants together. To tie the defendant to the burglaries, the prosecution obtained cellular site location data from the defendant’s cell phone. This data showed that the defendant was within a few miles of at least seven of the homes that were burglarized by the co-defendant. Neither the defendant nor her co-defendant moved to suppress the CSLD at trial. At the conclusion of the trial, the defendant was convicted on all counts. The defendant appealed the admission of the CSLD.

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