James E. Novak
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In the state of Arizona, criminal defendants can request that the court excludes from trial certain evidence obtained in violation of a defendant’s rights. If you have been charged with committing a crime in Arizona, you may file a motion to suppress physical evidence if you believe specific rights granted from either the United States Constitution, the state constitution, or a statute are violated. Filing a motion to suppress can serve as an essential tool for disputing charges as a defendant.

For example, if police officials obtain evidence in violation of a criminal defendant’s Miranda rights, successfully requesting suppression of any evidence prior to trial would bar the prosecution from using it against the defendant once the trial commences. Another example is if a police officer illegally arrests you without reasonable suspicion or probable cause.

If this evidence turns out to be important for the prosecution’s case and if the motion to suppress is successfully granted by the court, the exclusion of certain evidence could lead to a dismissal of the charges against the defendant. For example, if you are able to suppress a gun in an Arizona weapons case, the prosecution cannot proceed without the evidence, meaning they will often drop the case against you.

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The Supreme Court of the State of Arizona recently issued an opinion setting forth the procedure for determining whether an individual is a “sexually violent person” (SVP). The case arose after prosecutors charged the Arizona defendant with one count of sexual conduct with a minor. The defense moved for a competency examination, and the trial court found him not competent and not restorable (NCNR).

In response, the prosecutors requested an SVP screening, arguing that the procedure was warranted under § 13-4518(A). The defendant argued that the statute did not require a screen, and it is an abuse of discretion for a trial court to order one when the record does not support the order. At a hearing on the issue, the defendant argued that although the State met two elements of the statute, that alone did not require the trial court to grant the request. Nevertheless, the trial court ordered the screening.

Under Arizona’s SVP Act, a sexually violent person is one who has “been convicted or been found guilty but insane of a sexually violent offense” or was charged as such and was found guilty but insane and has a mental disorder that makes it more likely that they will engage in sexually violent acts.

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Recently, a state appellate court issued an opinion in an Arizona drug case, affirming the denial of the defendant’s motion to suppress. As a result, the defendant’s eight-year prison sentence for disorderly conduct and possession of narcotics was affirmed. The case is an example of the court’s ability to resolve conflicting versions of events at a motion to suppress.

The Facts of the Case

According to the court’s opinion, police received a call from the complaining witness, reporting a disturbance at her home. The complaining witness happened to work at the police station and called the responding officer as he was on his way to the scene. The officer could hear knocking and what he identified as a ringing doorbell in the background. The complaining witness told police that the defendant was the one causing the disturbance.

When the officer arrived, he saw the defendant outside the home and arrested him for disorderly conduct. Incident to the defendant’s arrest, the officer searched the defendant, finding methamphetamine and a pipe. The defendant tried to explain that he was trying to alert the complaining witness of a potential emergency. The complaining witness’s sister-in-law arrived on the scene, corroborating the defendant’s version of events.

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In today’s connected society, physical borders are becoming increasingly blurred. More than ever, we interact with people from across the nation—and the globe—on a regular basis. However, when we use the Internet, much of our information is also stored electronically. The availability and access to online data is a hot topic in criminal law and raises many valid concerns. For example, recently, a state appellate court issued an opinion in an Arizona attempted homicide case requiring the court to determine if and when an Arizona court can issue a search warrant pertaining to evidence located outside of Arizona.

The Facts of the Case

The case involved a woman who allegedly tried to poison her husband. According to the court’s opinion, the woman’s husband collapsed after a dinner party. The man’s wife called 911, and emergency workers took the man to the hospital. At the hospital, the woman told doctors to communicate only with her about her husband’s condition.

Through routine testing, medical workers discovered that he had high levels of ethylene glycol—the main compound in anti-freeze—in his blood. Doctors asked the man’s family if they found any anti-freeze in the house. This surprised the family, who were previously unaware that he had high levels of ethylene glycol in his blood. Upon learning this information, the couple’s children called the police.

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Towards the end of last year, Arizona became the 13th state in the country to legalize recreational use of marijuana when voters passed Proposition 207 by a 60/40 margin. By the end of January 2021, stores across the state were selling marijuana to consumers. However, Arizona’s new marijuana law doesn’t provide for carte blanche legalization and raises many questions.

There a few things to keep in mind about Arizona’s new recreational marijuana law. For example, possessing, selling, growing, and driving under the influence of marijuana still remains illegal under some circumstances. And in most cases, the potential punishment for violating the state’s new marijuana laws are very harsh.

Possession of Marijuana

Proposition 207 legalized the possession of a small amount of marijuana for adults over the age of 21. Under the current law, possessing less than an ounce of marijuana is legal. However, possession of more than an ounce but less than 2.5 ounces is a petty offense, punishable by a fine. From there, the punishments increase quickly. For example, possession of two to four pounds of marijuana is a felony offense that carries a term of imprisonment of up to two years.

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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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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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