James E. Novak
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Earlier this month, a state appellate court issued a written opinion in an Arizona burglary case in which the defendant challenged the sufficiency of the evidence that was used to convict him. However, the court affirmed the defendant’s conviction for burglary on the basis that the two-drawer filing cabinet he was seen peering into was a “nonresidential structure.”

The Facts of the Case

According to the court’s written opinion, a man received a notification on his cell phone that something triggered his home’s motion sensor. The man grabbed his gun and went outside to check around his property. Once the man got outside, he evidently saw the defendant holding a flashlight looking in a two-drawer filing cabinet that the man kept alongside his garage. The man told the defendant to stop, and the defendant was ultimately arrested and charged with burglary.

Burglary in Arizona

In Arizona, section 13-1508 defines burglary in the first degree as “entering … a nonresidential structure … with the intent to commit any theft or any felony therein” while possessing a weapon. The term nonresidential structure is defined in section 13-1501 as “any structure other than a residential structure and includes a retail establishment.” Section 13-1501 also defines the term “structure” as an “object… with sides and a floor that is separately securable from any other structure attached to it and that is used for lodging, business, transportation, recreation or storage.”

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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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For decades, law enforcement officers have used dogs to detect narcotics due to their superior sense of smell. And over the years, courts have generally upheld police officer’s ability to use dogs to sniff the perimeter of a motorist’s vehicle on the basis that it does not constitute a legal “search” under the 4th Amendment. If you have questions that relate to topics such as these, reach out to an Arizona drug crimes attorney without delay.

In a 2007 case, an Arizona appellate court issued an opinion containing an in-depth discussion regarding the use of drug-detection dogs by Arizona law enforcement. In that case, a police officer pulled the defendant over for speeding. The officer noticed that the defendant’s car had two cell phones mounted to the dash, a map on the passenger seat, an open bottle of liquor, and some snacks. The officer issued the defendant a warning and, after the warning was issued, the police officer asked if he could search the defendant’s car. The defendant replied that he had nothing to hide, but did not want to wait. The officer then let the defendant go.

The same officer pulled the defendant over a few minutes later, again for speeding. The officer issued another warning, and again asked if he could search the defendant’s car. The defendant still refused, indicating that he had nothing to hide. The police officer went back to his car to call for a canine unit, and was informed it would be about 90 minutes until a canine unit arrived. The officer told the defendant, who explained that it was not a problem because he was retired and not in a hurry.

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Last month, a state appellate court issued an opinion in an Arizona drug possession case discussing an interesting motion to suppress that was brought by the defendant. The defendant argued that the smell of marijuana should no longer give a police officer probable cause to detain, search, or arrest based on the state’s loosening stance on marijuana and the availability of medical marijuana. The court, however, summarily rejected the defendant’s argument.

The Facts of the Case

According to the facts as outlined by the court, a postal inspector noticed several suspicious looking packages that were dropped off at various post offices. The inspector obtained a warrant to search the boxes, and found marijuana inside. The inspector then took fingerprints from inside the box, and the prints came back as belonging to the defendant.

Evidently, the inspector obtained an arrest warrant for the defendant. As police arrested the defendant, he asked if he could put his shoes on. The officer accompanied the defendant into his home as he grabbed his shoes. As the officers walked through the defendant’s home, the noticed large rolls of cellophane wrapping and could smell marijuana. Using that information, the officers obtained a warrant to search the defendant’s home, and discovered marijuana and other items that the officers believed to be drug paraphernalia.

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Recently, an appellate court issued a written opinion in an Arizona drug trafficking case requiring the court to determine whether the lower court properly denied the defendant’s motion to suppress. The court ultimately concluded that the police possessed reasonable suspicion to approach the defendant in his car and order him out, at which point the defendant was legally arrested based on the officers’ observations. Thus, the court held that the defendant’s motion was properly denied below.

The Facts of the Case

According to the court’s opinion, Tucson police received a tip that someone was selling narcotics out of a home. Officers drove to the location, and watched as a man entered the residence and then left a short time later. Police followed the man to a restaurant parking lot.

Evidently, shortly after the man pulled into a restaurant parking lot, another man got into the vehicle through the front passenger door. Initially, the two men were sitting upright; however, shortly after the second man got into the car both seats reclined below the level of the window so that they were not visible by passersby. At this point, the police officers pulled their vehicles up next to the defendant’s, effectively boxing him in so he could not leave.

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Recently, a state appellate court issued a written opinion in an Arizona burglary case discussing whether the trial court properly reversed a defendant’s conviction after the jury was allowed to view digital pictures that had only been admitted into evidence as hard-copies. Ultimately, the court concluded that the digital images were “duplicates” of the original hard-copy photographs, and that showing the digital images to the jury was permissible.

The Facts of the Case

According to the court’s recitation of the facts, a witness saw a man and a woman jumping over a fence and entering a home. A few minutes later, the witness saw the same couple leaving the home carrying a black bag. The witness took several pictures of the couple on her cell phone.

Police later determined that jewelry and several guns were missing from the property. The defendant was arrested and charged with several crimes, including burglary and possession of a firearm by a prohibited possessor.

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Of the thousands of cases filed by Arizona prosecutors each year, many involve allegations of assault. Depending on the circumstances of the allegations, an Arizona assault charge can be either a misdemeanor or a felony offense.

In Arizona, there are two types of assault that do not involve a sexual element: assault and aggravated assault. To prove either of these crimes, the prosecution must establish that the defendant, 1.) performed an act, 2.) while exhibiting the necessary mindset. In Latin, these terms are known as the “actus reus” and “mens rea.”

The actus reus is the physical action that constitutes an element of a crime. For example, in an assault case, the actus reus may be a punch, a stabbing motion, or the pulling of a gun’s trigger. However, to find a defendant guilty of a crime, the prosecution must establish that the defendant performed the act with the necessary “guilty mind.”

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Recently, the state’s supreme court issued an opinion in an interesting Arizona criminal law case involving a defendant’s justification defense to several kidnapping and child-abuse charges. The case required the court to determine whether the defendant’s proposed evidence that she was afraid her husband would hurt or kill her if she did not go along with the continued abuse of their children was admissible justification evidence or inadmissible evidence of diminished capacity. Ultimately, the court concluded that the evidence should have been admitted, and ordered the defendant to receive a new trial.

The Facts of the Case

The plaintiff was arrested, along with her husband, when two of the couple’s three daughters broke out from their locked bedroom, ran to a neighbor’s home, and reported that their parents had kept them locked in a room and abused them over the course of several years. Both the defendant and her husband were charged with several counts of kidnapping and child abuse. Prior to trial, the cases against the two defendants were severed.

The defendant planned to testify that she participated in the abuse of her children only because she was afraid of her husband. In support of her claim, the defendant was prepared to testify that her husband physically abused her and maintained very tight control over her. For example, when the defendant left the house, she was required to keep her phone on at all times so her husband could hear her conversations. The defendant also had photographs of scars that were the result of her husband attacking her with a knife.

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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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Recently, an Arizona appellate court issued a written opinion in a case involving the defendant’s possession of a small amount of hashish, requiring the court to determine if the defendant was protected under the Arizona Medical Marijuana Act (AMMA). Ultimately, the court concluded that the AMMA – which does not specifically mention hashish – does not afford protection to qualifying patients found in possession of the substance.

The Facts

The defendant was a “qualified patient” under the AMMA, meaning that he was able to obtain and use marijuana for medical purposes. In March 2013, the defendant was found in possession of .05 ounces of hashish oil. The defendant sought dismissal of the charges based on the fact that he was a qualifying patient under the AMMA, but the court rejected the defendant’s motion. The defendant then proceeded to trial in front of a judge alone, where he was found guilty and sentenced to 2.5 years’ incarceration for the hashish and a concurrent term of one year incarceration for possession of drug paraphernalia (the jar containing the hashish).

The defendant appealed his conviction, making the same arguments on appeal. However, the court affirmed his conviction. The court began with an explanation that, when it comes to voter-enacted laws such as the AMMA, it a court’s job to “give effect to the intent of the electorate.”

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Contact Information
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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