James E. Novak
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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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In an Arizona criminal trial that is tried before a jury, a defendant cannot be found guilty unless all jurors agree unanimously. Thus, the process of jury selection is a crucial part of the criminal process. In essence, a defendant only needs to convince a single person on the jury that he is not guilty to secure a mistrial and avoid a conviction. Of course, in the event of a mistrial, the prosecution could re-prosecute the case; however, that won’t always be the case.

Recently, the United States Supreme Court issued an opinion in a case discussing the extent to which the prosecution can use race as a basis for selecting jurors. Ultimately, the Court reversed the defendant’s murder conviction, finding that the prosecution was motivated in substantial part by race when it struck one particular juror.

According to the Court’s opinion, the defendant was charged with the murder of four furniture store employees. The defendant is black, and three of the four victims were white. This case was the sixth time the defendant was charged for the murders; the previous five having been reversed or resulting in a mistrial based on prosecutorial misconduct. Specifically, in each case, the prosecution impermissibly struck black jurors from the jury panel.

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The Double Jeopardy Clause, contained in the Fifth Amendment to the United States Constitution, states that no person can be “be subject for the same offence to be twice put in jeopardy of life or limb.” Given that seemingly clear language, it would stand to reason that someone who was arrested for a crime in Arizona could only be charged by the State of Arizona or by the federal government, but not both. However, in a recent U.S. Supreme Court opinion, a majority of the Court reaffirmed an old exception to the Double Jeopardy clause allowing a defendant to be prosecuted for the same crime under both state and federal law.

In that case, the defendant was pulled over when a police officer noticed that his vehicle had a damaged headlight. The officer smelled marijuana inside the defendant’s car, searched it, and found a handgun. The defendant was ineligible to own the gun because he had previously suffered a conviction for second-degree robbery. The defendant pleaded guilty in state court. Subsequently, the federal authorities indicted him for the same offense.

The defendant moved to dismiss the case, arguing that the federal conviction exposed him to double jeopardy for the same offense. The defendant’s motion was denied, and he appealed up to the U.S. Supreme Court.

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In 2010, voters approved the Arizona Medical Marijuana Act (AMMA) by a small margin, making it legal for qualifying patients to obtain medical marijuana after they get a state-issued registration card. While the AMMA certainly provides some protections, the law hardly makes smoking marijuana “legal,” even for qualifying patients who have their state ID card. For example, employers can still terminate an employee if they test positive for marijuana.

On May 9, 2019, the Arizona Court of Appeals struck another blow to patients’ ability to legally smoke marijuana under the AMMA. According to the court’s opinion, the defendants were on their way to a music festival. After they pulled into a parking lot that was designated for event parking, they smoked marijuana from a pipe. However, the defendants had unknowingly parked between two undercover police cars. The officers saw the defendants smoking in the car, ordered them out, and seized the pipe. Officers also seized a gram of marijuana.

The defendants, who were both “qualifying patients” under the AMMA and had their state ID cards, were charged with the possession of marijuana. The defendants argued that they were immune from prosecution based on the AMMA. The prosecution argued that the AMMA provides exceptions to the immunity granted to patients, one of which is when the patient smokes in a public place. The court found the defendants guilty and sentenced them each to a period of probation. The defendants appealed.

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Under common law, a burglary was defined as the breaking and entering of a dwelling of another at night with an intent to commit a felony therein. Over the years, state legislatures have refined the definition of burglary. For the most part, states have eliminated the requirement that the breaking and entering occur at night, and have added language making it a burglary to unlawfully remain on another’s property with the intent to commit a crime.

Arizona has three burglary statutes.

  • Burglary in the third degree: Entering or remaining unlawfully in or on a nonresidential structure or in a fenced commercial or residential yard with the intent to commit any theft or any felony therein.
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Any experienced Arizona criminal defense attorney knows that not every case can be won. Or, better put, “winning” a case does not always mean that a client was found not guilty. In some cases, the evidence of guilt is overwhelming, perhaps due to a post-arrest admission given by the defendant. In other situations, a defendant does not want to put themselves and their loved ones through the stress of a criminal trial. Because of these realities, plea bargains are not uncommon in Arizona criminal cases.

A plea bargain is an agreement between the prosecution and the defense under which the defendant will plead guilty, usually for a negotiated sentence. In some cases, a defendant may choose to “open plea,” in which case there are no negotiations, and the defendant places complete discretion in the judge’s hands. Typically, an open guilty plea would be appropriate when the offer made by the prosecution was unreasonable, or there are significant mitigating circumstances warranting a lesser sentence.

Pleading guilty, however, is an important decision that should only be made after careful discussion with an Arizona criminal defense attorney. By entering a guilty plea, a defendant gives up almost all of their pre and post trial rights. And after the sentence is imposed, there is very rarely an opportunity to have the finding of guilt or sentence reviewed by a higher court.

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Earlier this month, a state appellate court issued an opinion that may have broad implications for Arizona criminal defendants. The case involved a defendant who was charged with engaging in sexual conduct with a minor after police saw inappropriate text messages on his cellular phone. The case required the court to decide whether police officers had the legal authority to search the defendant’s cell phone after he was arrested for violating his probation.

According to the court’s opinion, the defendant was placed on probation for a felony offense in 2014. In December of that year, a woman contacted the police explaining her concern that the defendant was engaging in an inappropriate relationship with her 13-year-old daughter. A few weeks later, police arrested the defendant for violating several terms of his probation.

After the defendant was arrested, a probation officer went through the defendant’s cell phone on the way to the police station. The officer saw several texts between the defendant and the 13-year-old girl. Police obtained a search warrant and discovered incriminating text messages and pictures on the defendant’s phone.

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Law Office of James Novak, PLLC
4500 S Lakeshore Dr #352
Tempe, AZ 85282
Phone: (480) 413-1499Text: (602) 908-8123

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