Arizona DUI & Criminal Defense Attorney Blog
In a recent Arizona drug crime decision, a woman appealed her conviction for possession of dangerous drugs. The case arose in 2014, when a Tempe officer initiated a traffic stop of a car driven by the defendant. He’d seen a traffic violation. While stopping her, he saw her moving inside the car, leaning forward, and then moving in her seat. Her arm went behind her back such that he became suspicious there was a weapon or contraband in the car.
The officer completed a check of records. He came back to speak to the defendant and her passenger. The defendant explained that she’d been moving in order to find her keys so that the officer wouldn’t think the car was stolen. She explained her ignition was messed up, and the key had broken inside it. The officer asked for police assistance after determining he would ask the defendant and her passenger to leave the vehicle in order to perform a canine sniff or consensual search. He saw the defendant pick something up and move it while waiting for backup.
Another officer came. The first officer approached the car again, and this time he saw that the defendant had her purse on her lap and a multi-tool. He also noticed she had cut her thumb. She explained she had the multi-tool because she wanted to ensure she could start her car.
The officer found her stories inconsistent. She’d claimed she used pliers to start the car and later said she used the knife. The defendant and passenger were removed from the car. The officer asked to search the car, but she refused. The officer asked for the canine unit to come out.
The narcotics dog alerted to the outside of the side door but didn’t alert inside the car. The officers searched based on the first alert and found a black bag of methamphetamine hidden between the bottom and back cushions of the driver’s seat, along with other things that looked like paraphernalia.
The defendant was charged with a class 4 felony count of drug possession or use of dangerous drugs and a class 6 felony count of drug paraphernalia possession. The defendant moved to suppress the evidence found during the warrantless search of her car. The trial court denied the motion. It found the prosecution showed it was more likely than not the stop was reasonable, the extension of the stop was reasonable because a crime was suspected, and the jury was entitled to consider whether the dog sniff was reliable.
The jury convicted the defendant of possessing dangerous drugs but acquitted her of the paraphernalia charge. The court suspended the sentence and imposed probation. The defendant appealed.
On appeal, the defendant argued the officer didn’t have a reasonable suspicion for the traffic stop, didn’t have a reasonable suspicion to extend the stop, and didn’t have probable cause to search the car because the alert was unreliable.
The appellate court explained that a reasonable suspicion requires an articulable basis justifying the investigatory detention. The existence of a reasonable suspicion is determined based on the totality of the circumstances. In this case, the defendant admitted she didn’t signal before making her right turn (before being pulled over). She argued this wasn’t a violation of A.R.S. § 28-754 because the prosecution didn’t prove that any other traffic was affected by the failure to signal. She argued that the officer needed a reasonable suspicion that she turned without proper signaling where other traffic may have been affected.
The appellate court explained a police officer in a police vehicle could count as other traffic. The officer saw her stop at a stop sign but turn without signaling. He’d observed this from inside his car while driving on the same road, and it might have affected his driving. The appellate court found the lower court had not made a mistake in finding there was a reasonable suspicion to stop her. It also found that the officer had developed a reasonable suspicion she possessed and was trying to conceal contraband based on her movements and her inconsistent stories. These created a reasonable suspicion to detain her until the narcotic dog arrived.
The defendant argued that the dog was sick, so his alert wasn’t reliable. The appellate court explained that the dog’s respiratory problem had caused him to miss a narcotic smell, rather than to falsely identify it during their routine training session. The dog’s failure to alert while in the car didn’t prove his alert outside the car was unreliable. The lower court affirmed.
If you are charged with a drug crime, contact criminal defense attorney James Novak at (480) 413-1499 in Tempe, Arizona.
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