James E. Novak
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The law provides Arizona defendants with certain avenues of relief after a criminal conviction. While there are restrictions regarding what types of cases and issues are appealable, many defendants can challenge a conviction or sentence. If one has completed their sentence, they may be eligible to restore their civil rights by setting aside a criminal conviction. Appeals are much more complicated than criminal trials, and the proceedings require a comprehensive understanding of complex statutory and procedural rules.

The main types of conviction-review mechanisms are post-conviction relief and direct appeals. Once a court convicts and sentences a party, a defendant has the right to file a motion for post-conviction relief. These petitions are filed with the same trial court that issued the initial ruling. The Arizona Rules of Criminal Procedure (ARCP) designate the appealable issues permitted in these petitions. Specifically, Rule 32 provides an avenue for relief after the defendant has been found guilty or sentenced at a probation violation proceeding. Moreover, Rule 33 pertains to situations where a defendant pled guilty. The majority of these petitions assert ineffective assistance of counsel claims.

For instance, the Arizona Court of Appeals recently issued an opinion in a defendant’s petition to review a trial court’s order dismissing his petition for post-conviction relief. The appeal arose after a jury trial convicted the defendant of aggravated domestic violence, criminal damage, and influencing a witness in two consolidated cases. The defendant argued that his counsel was ineffective for failing to object to the consolidation.

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The Arizona Court of Appeals recently issued an opinion in a defendant’s appeal of his conviction and sentence for two cases, one of which involved an Arizona weapons offense. That case arose when police officers stopped the defendant when they noticed him riding his bicycle against traffic on a two-lane road. During the stop, police noticed a combat-style knife on his hip. When asked, the defendant admitted he was a felon, and the detectives arrested him. The court consolidated both of the defendant’s cases, and the defendant appealed, arguing that the court erred by denying his motion to suppress.

The defendant argues that police abused their discretion and improperly stopped him. He further contends that he was not violating a statute because he was not riding his bike on the roadway. Under the Fourth Amendment, law enforcement cannot engage in unreasonable searches and seizures. Moreover, the exclusionary rule prohibits the state from introducing evidence seized in violation of the defendant’s Fourth Amendment rights. Generally, investigative stops are permitted if the stop is substantiated by “reasonable suspicion that criminal activity is afoot.”

In this case, the officers testified that they drove by the defendant when they noticed him riding on the gravel, talking on a cell phone, and steering the bike with one hand. They stopped him after they noticed oncoming traffic swerving to avoid the defendant. The court found that the detectives possessed the requisite reasonable suspicion to stop the defendant. The court reasoned that the police believed that the defendant was obstructing the highway and creating a public hazard.

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A significant type of evidence in Arizona sexual offense cases is the DNA recovered from rape kits. Rape kits are the physical evidence and notes from an assault victim’s examination. The physical evidence usually contains DNA such as hair, blood, bodily fluids, clothes and belongings of the victim, and physical evidence from the crime scene. In some cases, the rape kit findings are the primary evidence used against a defendant. However, rape kit findings do not necessarily equate with forced or unlawful sexual conduct. Arizona courts will evaluate the probative value of DNA findings and if the evidence is substantially outweighed by the danger of unfair prejudice.

For example, recently, the Supreme Court of the State of Arizona issued an opinion stemming from a sexual assault case. In that case, an Uber driver picked up a passenger who sat in the front passenger seat. The driver claimed that the passenger forcibly tore her clothes off and assaulted her. The driver went on to report the crime and received a rape kit. The passenger later texted the driver apologizing for his “out of line” behavior; however, he later denied any non-consensual behavior.

During the trial, a DNA analyst matched the defendant’s DNA evidence with the contents of the rape kit performed on the victim. However, the defendant argued that there were only two markers that connected him to the victim. As such, he filed a motion in limine to exclude a portion of the DNA evidence. The trial court convicted him, and the appeals court reversed the conviction holding that the evidence was improperly admitted.

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Last month, a state appellate court issued an opinion in an Arizona assault case in which the defendant was also found in possession of methamphetamine. The appellate court’s opinion dealt with several issues, including the defendant’s claim that the officer illegally searched his vehicle without consent. However, because the court found the officer’s testimony more credible, it denied the defendant’s motion. The case illustrates the importance of credibility in criminal trials generally, as well as during a defendant’s testimony in a suppression hearing.

The Facts of the Case

According to the appellate opinion, a police officer pulled the defendant over for a traffic violation. During the stop, the officer asked the defendant for permission to search the car. According to the officer, the defendant agreed. The officer then found methamphetamine in a sunglasses case in a void underneath the steering column.

Although not relevant to this issue on appeal, the officer then asked the defendant to get out of the vehicle. Initially, the defendant complied, but then ran back into the car. As the officer reached into the door to grab the defendant, the defendant slammed the car door on the officer’s arm several times before the officer let go. The defendant then drove off.

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Possessory offenses, including Arizona gun crimes and drug offenses, often stem from an arrest where the contraband at issue is physically removed from the defendant or their property. While it may seem like there are no defenses when a police officer finds a gun or drugs on you, that is not the case.

A motion to suppress is one of the most common defenses to gun and drug crimes. In a motion to suppress, a defendant argues that the police activity that led to the discovery of the items violated their rights, under either the state or federal constitution. Motions to suppress are argued before a case goes to trial, in hopes of suppressing the evidence that the prosecution intends to use against the defendant. If a defendant succeeds in bringing a motion to suppress, the evidence cannot be admitted and, often, the prosecution has no choice but to withdraw the charges.

One of the more complex issues in search and seizure law involves whether a person has “standing” to bring a motion to suppress. Standing refers to a party’s legal ability to challenge another party’s actions. To litigate a motion to suppress, you must show that the police conducted a legally recognizable search of an area that you had both a subjective and objective expectation of privacy.

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Last month, a state appellate court released a written opinion involving a defendant charged with making gang-related threats to law enforcement officers as they were investigating an unrelated crime. Initially, the jury convicted the defendant on several charges, but the trial court reversed that conviction, finding that the jury’s decision was against the weight of the evidence. The appellate court affirmed.

The Facts of the Case

According to the court’s opinion, the defendant was the passenger in a vehicle that was pulled over by police for a traffic violation. Police suspected that the driver of the car was intoxicated, and began processing the driver’s arrest. While police officers were arresting the driver, the defendant—a known gang member—began shouting at the police. Specifically, the defendant shouted that he was “West Side City,” the police didn’t “even know what’s coming,” the officers were “done,” and that he was going to start a “war.”

Police arrested the defendant, who was later charged with three counts of threatening or intimidating to promote a criminal street gang and several other related charges. The case proceeded to a jury trial, after which the jury found the defendant guilty of making the threats. The defendant filed a post-trial motion, arguing that the jury’s finding was against the weight of the evidence, which the court granted. The State appealed.

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The Supreme Court of Arizona recently issued an opinion in a defendant’s appeal of his conviction based on an illegal search and seizure. The case focused on whether law enforcement must obtain a search warrant in cases involving Arizona criminal defendant’s Internet Protocol (IP) addresses or subscriber information the user provides to an Internet Service Provider (ISP).

In this case, an undercover detective joined an internet forum seeking users interested in child pornography. A user responded and requested to be added to the group. After the detective added him, the defendant sent illicit photos and videos depicting child pornography. Federal agents served a subpoena to obtain the user’s IP address. After obtaining the IP address and ISP, the detective retrieved the name, addresses, and phone number of the defendant. Law enforcement executed a search warrant and confiscated the defendant’s external hard drive, laptop, desktop computer, and cell phone. An in-depth search of these items revealed child pornography and messages the defendant sent to the law enforcement officer.

After he was indicted, the defendant moved to suppress the subscriber information and all evidence seized from his residence. He argued that it was an illegal search and seizure under the Fourth Amendment to the United States Constitution (US Constitution) and article 2, section 8 of the Arizona Constitution (AZ Constitution). He argued that the US Constitution and AZ Constitution require a warrant or court order to obtain his IP and ISP information. The trial court denied his motion, and a jury convicted the defendant on all counts. The court of appeals affirmed the conviction.

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Recently, the Arizona Court of Appeals, issued an opinion in a defendant’s appeal of her conviction for the possession of dangerous drugs and drug paraphernalia. The case addressed whether the defendant experienced prolonged detainment and whether the detainment was supported by reasonable suspicion of criminal activity. Those facing Arizona drug charges should understand how the law protects their rights in these cases.

In this case, the defendant was driving in the early morning hours when she pulled over because she began to feel sick. A deputy noticed her car and pulled over to see if the woman and her occupants needed help. The defendant told the officer that she was on new medication and felt like she might have a seizure; however, she declined the officer’s offer to call an ambulance. The officer inquired about any drugs or weapons; however, she did not answer and then responded that she just ate. However, the officer called for a drug-detection dog and a medical unit. The woman’s boyfriend and an ambulance arrived, and the officer asked the boyfriend to wait at a gas station. Soon after, a drug detection dog arrived and alerted the officers of the presence of drugs.

Under Arizona law, officers can conduct a brief investigatory stop, if the officer has a “reasonable, articulable suspicion” that criminal activity is occurring. Reasonable suspicion requires that an officer explain some “minimal, objective” justification for the detention. Generally, courts must look at all relevant factors and review them collectively. Courts tend to provide deference towards an officer’s ability to determine whether a defendant’s actions were innocent or suspicious.

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Recently, an Arizona defendant appealed his conviction and sentence for the possession of a dangerous drug and drug paraphernalia. The defendant argued that the trial court erred by denying his motion to suppress. The case arose after a patrol officer in a “high-drug area” witnessed the defendant enter the parking lot of a closed grocery store to briefly talk to a man on a bicycle. The officer, believing that the defendant was engaged in a crime, called for backup. Meanwhile, the defendant entered a gym for a few moments and then left and drove away. The officers pulled the defendant over when they noticed that he did not have a license plate or license plate light.

The officers advised the defendant that they were stopping him because of his license plate issues, and they asked him for his identification, registration, and insurance. The officers noted that the defendant seemed nervous, continually tried to put his hands in his pockets, and denied having any drugs. The officers requested K-9 units based on the man’s evasive answers, perceived drug residue on his tongue, and the time of night and nature of the high-crime area in which he was driving. A search revealed methamphetamine, a metal spoon, glass pipe, measuring cup, ice cream scoop, and medical syringes. The trial court sentenced him to nine years in prison. The defendant argued that his stop was not “based on reasonable suspicion of criminal activity,” and even if the stop was reasonable, the length and duration of the stop was impermissible.

Under the Fourth Amendment, an investigative stop is a type of seizure. However, because they are less intrusive than arrests, they do not require the probable cause necessary to effectuate an arrest. Police officers only need to have a reasonable suspicion that a person violated a traffic law or is engaged in criminal activity to conduct an investigatory stop. In this case, the defendant argued that the stop was improper because he had a temporary license in his window. Here, the court found that the temporary registration was not “clearly visible.” Therefore, the court found that the trial court did not err in finding that the officers had reasonable suspicion to stop the defendant for his missing license plate.

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Earlier this year, a state appellate court issued an opinion in an Arizona assault by vehicle case discussing the defendant’s challenger to certain videos he took on his cell phone before the incident leading up to his arrest. Ultimately, the court determined that the videos were admissible, rejecting the defendant’s issues on appeal.

The Facts of the Case

In this appeal, the defendant was charged with two separate, but similar offenses. First, in 2012, the defendant was charged with various crimes after he intentionally caused a head-on collision with another driver. In that case, the other driver was seriously injured and had to learn to walk again. The following year, the defendant caused another car accident, this time, by grabbing the wheel and jerking it as his partner was driving. His partner died as a result of the injuries she sustained in the accident. The defendant was charged with aggravated assault, one count of manslaughter, and two counts of endangerment. The defendant was tried by jury and convicted. He appealed on several issues.

One of the defendant’s appellate issues pertained to the admission of a YouTube video the defendant previously recorded. Evidently, before trial, the prosecution presented the court with seven of the defendant’s YouTube videos, showing him driving at extreme speeds. The defendant filed a motion to suppress the videos, arguing 1.) they were highly prejudicial and should be kept out of evidence, and 2.) the videos were being used by the prosecution to prove the defendant’s bad character. The court determined that one of the videos was admissible.

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Law Office of James Novak, PLLC
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Tempe, AZ 85282
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