James E. Novak
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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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Recently, an Arizona appellate court issued a written opinion in an Arizona drug crime case affirming the denial of a defendant’s motion to suppress evidence that was seized during a traffic stop. The case required the court to discuss whether the officer’s stop was extended beyond the time that was required to write the ticket issued to the defendant and, if so, whether that extension of the stop required the suppression of the evidence.Ultimately, the court concluded that the defendant consented to the extended encounter. Thus, the evidence seized as a result of the stop was not required to be suppressed.

The Facts of the Case

The defendant was driving on the highway when he was pulled over by a police officer for following too closely. After running the defendant’s name, the officer determined that the defendant’s license was suspended. The officer wrote the defendant a ticket.

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Recently, a state appellate court issued a written opinion in an Arizona criminal case requiring the court to determine if police had probable cause to arrest the defendant without a warrant. Ultimately, the court concluded that the information police had at the time they decided to arrest the defendant gave them probable cause to believe that she had acted as an accomplice in the robbery.

The Facts of the Case

The complaining witness was approached by someone in a convenience store parking lot who took her purse. Video of the parking lot showed that person get into the passenger door of a green “Jeep-like” vehicle with a white bumper sticker in the top-right corner of the rear window. After taking the robbery report, a police officer put out a description of the vehicle over police radio.

About 30 minutes later, the officer received a report of a suspicious vehicle that other officers believed to be the one involved in the robbery. The investigating officer drove to where the vehicle was parked and confirmed that it was the same vehicle as seen in the video. In the bushes not far from the vehicle was the complaining witness’ purse. A witness told police that a woman had recently moved the car to its current location from a driveway a few doors down. Police ran the license plate, and it was registered to the defendant’s name.

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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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A defense attorney’s job is to vigorously fight for the rights of his client, and, ultimately to do what is in his client’s best interest. At the same time, any seasoned Arizona criminal defense attorney knows that not every case can result in a “Not Guilty” verdict.In some cases where there is a concern about an unfavorable verdict, pre-trial motions can be litigated in hopes of creating a more favorable scenario. For example, a pre-trial motion to suppress physical evidence or a motion in limine to preclude certain harmful testimony may make a defendant’s case much stronger. However, in situations where these pre-trial motions are denied or where the prosecution’s case against the accused is exceptionally strong, an experienced Arizona criminal defense attorney should discuss the idea of a negotiated guilty plea, or a plea bargain.

Plea bargains get a bad rap. However, tens of thousands of Arizona criminal defendants accept plea bargains to resolve their cases each year. This is because Arizona plea deals are the product of significant negotiation and take into account several factors. Most notably, when a defendant accepts responsibility for a crime, the prosecutor is able to divert scarce resources elsewhere. Thus, a prosecutor is motivated to resolve cases through negotiated plea bargains in order to focus on other, potentially more serious, cases.

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Recently, a state appellate court issued a written opinion in an Arizona marijuana crime case involving a defendant’s challenge to a warrant that was obtained based on information that was provided by an informant after her own arrest for drug possession. The case presents important issues for those charged with crimes based on an investigation that may have included testimony from a potentially biased witness.The case also illustrates how a witness’ recantation of a statement will not always result in the information being disregarded.

The Facts of the Case

A woman (the informant) was arrested after police discovered a significant amount of marijuana in her backpack. After the informant’s arrest, she made a series of statements to police indicating that she obtained the marijuana from the defendant, who had a much larger supply. The informant explained that the defendant was flying in marijuana on light-weight planes and also that she saw a gun at the defendant’s house.

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Earlier this month, a state appellate court issued a written opinion in an Arizona drug possession case requiring the court to determine if the trial court properly denied the defendant’s motion to suppress. The court ultimately determined that the defendant, who was a passenger in a lawfully stopped vehicle, was legally detained, and the subsequent investigation by police officers did not exceed their legal authority.

The Facts of the Case

The defendant was a passenger in a car being driven by a friend. The car was stopped by police for having an expired registration. The driver quickly pulled over in front of a residence, and the police parked behind the stopped car. As the police were exiting their vehicle, the defendant started to get out of the front-passenger seat; however, police ordered that he get back in the car. The defendant explained that he lived at the residence, and he wanted to go inside. The officer denied the defendant’s request and had him remain in the vehicle.

As the police officers were running the occupants’ licenses for warrants, they noticed a substance they believed to be marijuana in the center console area. The police asked both men out of the car and asked if they would consent to be searched. The defendant responded, “I got nothing on me, that’s fine.” However, police found a crack pipe and a bag of heroin in the defendant’s pockets.

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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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