James E. Novak
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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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Earlier this year, a state appellate court issued a written opinion in an Arizona gun possession case where the defendant was arrested for shoplifting and, upon a search of his backpack, police discovered a firearm. The case presents an interesting and informative discussion regarding when police have probable cause to determine that someone has committed the crime of shoplifting.

According to the court’s opinion, the defendant entered a store wearing a backpack. He placed the backpack into a shopping cart and began walking around the store. The store’s video surveillance system shows the defendant selecting a variety of items and putting them into his cart. He also places a number of those items back onto the shelf. At some point, the defendant took a pair of sunglasses off the rack, removed the tag, and placed them atop his head.

The video also showed the defendant select an energy drink and a package of condoms and place them atop his backpack, which was still lying inside the cart. At some point, the defendant walks behind some displays out of frame of the surveillance camera. When he gets back in the frame, the energy drink and box of condoms are no longer visible. The store security guard, who believed that the defendant placed the items in his backpack, called the police. The defendant was stopped at the point-of-sale, before he had paid for the items or left the store. Police arrested the defendant for shoplifting and searched his backpack, where they found an energy drink, a box of condoms, narcotics, and a gun.

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As this blog has discussed on numerous occasions, police officers must generally have a warrant to conduct a search. However, there are some exceptions to the warrant requirement allowing police officers to conduct a search without a warrant. One exception to the warrant requirement deserves more attention than it gets is the inventory-search exception.

In certain situations, police officers are required to conduct an inventory search of a motorist’s vehicle. Most often this is when the vehicle is going to be towed; however, an inventory search is also required when a motorist asks officers to leave their vehicle locked and legally parked. The stated rationale behind requiring officers conduct an inventory search is to ensure that the motorist’s belongings are properly logged before separating the owner from their vehicle. This way, police protect themselves from accusations that property went missing after they seized a car.

Practically speaking, an inventory search may occur anytime someone is pulled over by police and then arrested. This may be due to an Arizona DUI charge, an outstanding warrant, or some other reason that may have nothing to do with the vehicle. However, when police arrest a driver for whatever reason, the police must determine what to do with the vehicle. If there is no other responsible adult in the car, the vehicle will often be towed. In some cases, police may allow a motorist to leave the vehicle in a legal parking spot.

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Last month, the United States Supreme Court issued an opinion in a case that limits the government’s ability to seize the assets of those convicted of crimes. Typically, when someone is arrested for an Arizona crime, any assets that are potentially evidence will be seized. For example, it is common that a vehicle used to transport drugs will be seized as potential evidence. In the event that the defendant is found guilty, the government can proceed with a civil forfeiture claim in an attempt to keep whatever assets were seized.

The Facts of the Case

According to the court’s opinion, the defendant pleaded guilty to dealing in a controlled substance. When the defendant was arrested, he was driving a Land Rover that he had recently purchased for $42,000 with the proceeds from a life insurance policy.

The defendant was sentenced to one year of house arrest, followed by five years’ probation. The defendant was also fined $1,203. After the defendant was convicted, the state moved for civil forfeiture of the Land Rover. The trial court denied the government’s claim, noting that the value of the Land Rover was over four times the maximum fine for the crime for which the defendant was convicted. Thus, the court held that the 8th Amendment’s prohibition against excessive fines precluded the government from taking ownership of the vehicle.

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As a general matter, Arizona criminal law prohibits assaulting another person. An assault can occur in several different ways. Under Arizona’s assault statute, it is against the law to intentionally, knowingly or recklessly cause physical injury to another person; to intentionally place someone else in reasonable apprehension of imminent physical injury; or to knowingly touch another with the intent to injure, insult, or provoke them. However, there are exceptions when using force against another person is justified.

A justification defense is considered an affirmative defense. An affirmative defense is one that, if proven by the defendant, defeats the legal consequences of what would otherwise have been an illegal act. In other words, when claiming a justification offense, the defendant is not contesting any of the elements of the offense. Instead, the defendant is saying “yes, I did what you say I did, but I did it for a good reason.”

As noted above, there are several different situations in which physical force can be used against another person. These include self-defense, defense of others, and defense of property. While each of these defenses is outlined in separate statutes, a defendant must establish that they reasonably believed the force was necessary. However, physical force is never justified based on verbal provocation. Courts consider both whether the person using force was justified in the use of force, as well as whether the extent of the force used was proportionate to threat posed.

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Under the Fourth Amendment to the United States Constitution, citizens are guaranteed the right to be free from unreasonable searches and seizures. Over the years since the passage of the Fourth Amendment, courts have interpreted this to mean that police are generally required to obtain a warrant that is supported by probable caused before they can search a person, car or home.

Of course, there are exceptions to this general requirement. For example, if a police officer has probable cause to arrest a defendant for the commission of an Arizona crime, the officer is allowed to perform a search incident to that arrest. Similarly, if a police officer is in hot pursuit of a defendant who is believed to have committed a serious crime, the officer may not need a warrant to enter a home or vehicle.

One of the most common exceptions to the warrant requirement is when the officer obtains consent to search from the defendant. However, in order for an officer to conduct a search based on a defendant’s consent, that consent must be valid and not coerced. A recent case discusses consent, and how courts determine if it is valid.

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Recently, a state appellate court issued an opinion in an Arizona gun possession case requiring the court determine if the police officers’ stop of the defendant violated his constitutional rights. The case presented the court with the opportunity to discuss when a police officer is justified in stopping and searching someone they believe to be suspicious.

The Facts of the Case

According to the court’s written opinion, police officers were in the middle of a traffic stop when they saw the defendant walk past them on the street. The defendant was wearing a red hooded sweatshirt and red sneakers. The officers knew red to be the color of a local gang. The officers also noticed that the defendant seemed to be avoiding looking in the officers’ direction. As the defendant walked away, he removed his hood, and officers were able to see that he was black and had long hair.

The officers believe the defendant was someone whom they had interacted with before, and ran that person’s name for warrants. It turns out that person had several warrants, and officers decided to stop the defendant. The officers stopped the defendant, who was placed on the curb and asked his name and if he had any weapons. The defendant provided the officers with a name and indicated that he did not have any weapons. An officer went to check the name supplied by the defendant, and while that officer was gone, another officer patted the defendant down, finding a gun. The defendant was then arrested and searched, during which the officers found methamphetamine. The officer then returned from conducting the name check, finding no warrants. It was later determined that the name the defendant gave was not his own.

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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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