Articles Posted in Drug Laws

Facing criminal charges can be a daunting experience, especially when evidence is obtained through search warrants. There are several difficulties associated with challenging search warrants in Arizona criminal cases. A recently decided appellate case sheds light on the complexities involved in suppressing evidence obtained through GPS tracking devices, and helps demonstrate the importance of a comprehensive defense strategy when defending against Arizona criminal charges.

The defendant in the recently decided case appealed his conviction for the sale or transportation of dangerous drugs and possession of paraphernalia. The case revolves around the use of an anticipatory search warrant obtained by detectives to place a GPS tracking device on the defendant’s vehicle, suspected of transporting narcotics. The warrant was based on information from a confidential informant about an older male, matching the description of the defendant who would be delivering narcotics to a specific address in Chino Valley.

The Challenge of Specificity

The defendant’s defense centered on challenging the validity of the search warrant, arguing that it lacked the necessary specificity and failed to establish probable cause. The Fourth Amendment of the U.S. Constitution requires search warrants to particularly describe the places to be searched and the persons or things to be seized. The crucial question here is whether the warrant provided enough specific details to prevent mistaken searches and seizures.

Continue reading

Law enforcement agencies often use traffic stops or other small municipal code violations as a pretext to investigate a suspect for more serious criminal activity. Many arrests and convictions for serious crimes occur only after a law enforcement officer has stopped or detained a suspect for a less serious offense, and decided to expand the scope of their investigation to look for evidence of further criminal activity. These law enforcement tactics are permissible in some circumstances, however, if a police officer expands the scope of a minor traffic stop without legal justification, it may be possible for a defendant to suppress any evidence obtained through the officer’s unlawful tactics. The Arizona Court of Appeals recently issued an opinion in an appeal filed by a man who was convicted of several serious offenses after he was stopped for violating traffic laws.

The defendant in the recently decided appeal is a man who was convicted of several felony offenses relating to drugs and weapons that he allegedly had in his vehicle and were discovered after a traffic stop. According to the facts discussed in the appellate opinion, the defendant had been under investigation for several months for alleged drug activity, however, he was initially stopped by a uniformed officer after he was witnessed violating several minor traffic laws. After the defendant was stopped, several rounds of questioning ensued as to his reason for being in the area. The officer also administered field sobriety tests waiting for a K-9 unit to arrive. After some delay, the police dog arrived and alerted the officer to narcotics in the vehicle. A subsequent search of the vehicle discovered significant amounts of drugs and weapons. The defendant was arrested, charged, and ultimately convicted.

After his conviction, the defendant appealed to the Arizona Court of Appeals, challenging the trial judge’s decision to allow the evidence discovered at the traffic stop to be used at trial. The defendant argued that the officer exceeded the scope of the traffic stop and unreasonably delayed the stop in order to allow time for the K-9 unit to arrive and search for the drugs. The appellate court did not completely agree with the trial judge’s ruling that the scope of the traffic stop was not expanded; however, the court upheld the ruling and conviction because the defendant was the subject of an ongoing narcotics investigation, and the law enforcement agents involved all had reasonable suspicion to perform a search based on the evidence gathered in the months-long investigation, as well as what they had witnessed the day of the arrest. As a result of the appellate ruling, the defendant’s conviction will stand, and he will be required to serve out his prison sentence.

Over the past decade, more states are coming to realize the detrimental—and unfair—effects that result when applying existing laws. For example, laws imposing mandatory minimum punishments, the system’s failure to account for mental health issues (including addiction), and harsh collateral consequences that come along with a conviction have all started to get a second look. Recently, Arizona Governor Doug Ducey signed several bills into law bringing Arizona in line with the many other states that are making significant efforts to adjust what many consider to be a broken criminal justice system.

Specifically, HB 2318 and 2319 address the state’s harsh sentencing system and the impact of a conviction for a non-violent drug crime.

HB 2318

House Bill 2318 deals with first-time offenders who may otherwise receive a disproportionately high sentence. The Bill deals with a situation where a person is convicted of one or more felony offenses that were either consolidated for trial or do not count as “historical prior felony convictions.” Under the old law, a person with two or more offenses was considered a repeat offender, meaning they faced significantly higher penalties. However, for arrests taking place after March 24, 2021, consolidated felony cases will be considered a “single offense” for sentencing purposes.

Continue reading

A Review of 3 Uncommon Criminal Defenses Used for Drug Trafficking Charges

In a recent Arizona Court of Appeals drug case, the court considered a defendant’s conviction for narcotic drug trafficking charges.  The defendant was sentenced to a presumptive five-year term of imprisonment and appealed the conviction.

The defense argued that (1) the drugs found in his car should have been suppressed, (2) improper profile testimony was admitted, and (3) the sanction imposed for a Batson violation wasn’t adequate.

Drug trafficking charges are multi-facet in nature, and challenges can take place on numerous fronts. In this article three types of challenges will be discussed:

Arizona Supreme Court Adopts “Odor-Unless” Standard: What it means for Arizona and AMMA qualified users

The Arizona Supreme Court recently considered a case involving the question of whether or not the smell of marijuana was enough to establish probable cause to issue a search warrant.

The Court  needed to evaluate this issue in light of the Arizona Medical Marijuana Act (AMMA).

The AZ Supreme Court ruled that Marijuana odor can establish probable cause, unless there are other facts that would cause a reasonable person to believe that the suspect’s activities were compliant under the AMMA.

Arizona Supreme Court Limits Use of Entrapment Defense in Cocaine Case

Is this too difficult to imagine?

You’ve just been released from prison. You are struggling to become a productive member of society.

You’re looking for job, and trying to get your life on back on track.

So far, no employer has been willing to hire you, due to your criminal record.

You’ve sold nearly everything you own, including your car to pay outstanding debts, and to try and make ends meet.

Day after day you wait for the bus to take you to town so you can continue your job search.

Then one day, you are approached by a man while waiting for your bus. The man asks you if you will purchase $20.00 of crack cocaine.  He offers to pay you $10.00 to do the deal.

You hesitate, and think that selling drugs again was the last thing you ever intended to do.

Weary, desperate, and hungry, you err in judgement and agree.

The man takes you to buy the drugs from an acquaintance.  You buy the cocaine for him.   You give him the cocaine, and he pays you.

Following the exchange of drugs and money, the man immediately arrests you.

You now face returning to prison, and serving 8 to 10 more years for selling illegal drugs while on parole.

The man who approached you at the bus stop was an undercover police officer.  You were clearly entrapped.

But you will not have a chance to gain an acquittal based on the entrapment defense, without doing this one very important thing…

That is, if you wish to challenge the charges by utilizing the entrapment defense, you must admit to the substantial elements of the crime.

In simple terms, you will need to admit that you committed the criminal act for which you were charged.

You are confused by this.  It goes against everything you understood about your 5th Amendment rights and protections against self-incrimination.  So you do not admit to the crime.

But the fact is, it doesn’t matter how much police deception or inducement was involved.  Unless you are prepared to formally admit to the substantial elements of the crime, either in testimony or stipulation, the entrapment defense will not apply.

You are convicted and sentenced to return to prison to serve 9 more years.  Your freedom was short lived.

Not only is this scenario imaginable, but the the high court of Arizona recently heard a case with similar circumstances. This statutory requirement was affirmed in that case.

The Arizona Supreme Court held that the entrapment defense afforded under A.R.S. 13-206, is reserved for cases in which the defendant admits to the substantial elements of the crime.

In this article we examine the often misunderstood entrapment defense, and include the following featured topics:

  1. Overview of recent Arizona Supreme Court ruling in a cocaine case;
  2. 7 questions and answers regarding application of the entrapment defense;
  3. The requirements of making a valid entrapment claim in Arizona;
  4. The burden of proof for entrapment;
  5. Arizona entrapment law A.R.S.  12 – 206;
  6. 10 other drug crimes defenses besides entrapment;
  7. Criminal defense for drug charges in Phoenix AZ

Continue reading

Arizona Court of Appeals: No "conspiracy" without evidence of electronic communication with anyone else besides buyer and seller

In a recent Arizona Supreme Court drug case, a man convicted of 11 drug-related crimes was sentenced to concurrent, consecutive presumptive terms of imprisonment.

The defendant appealed, challenging five convictions related to violations of A.R.S. § 13-3417(A) to facilitate or conspire to commit felony drug crimes.

In this article we provide an overview of the case and the Appeals Court Ruling; how it impacts Arizona; and privacy rights v. the public safety debate of cell phone searches.

This article also includes a special featured segment by Scott Greene, Senior Technology Forensics Expert, who will provide additional insight into cell phone and mobile device forensics.

Case Overview

The case arose when Arizona narcotics agents were told that the defendant was selling drugs.

An undercover agent began talking to the defendant by cell phone and arranged to buy methamphetamine from him.  Below is the outcome of the efforts initiated by the undercover agent:

  • The first transaction took place as planned.
  • The agent again contacted the defendant and arranged another purchase. However, the woman who was supposed to deliver the drugs never showed up to complete the sale.
  • Another purchase was set up, and as a result, the defendant’s co-defendant (another person charged in the crime) sold the meth to the agent.
  • The next transaction did not go through because only the undercover agent arrived and no one met him to complete the sale.
  • The next transaction resulted in another codefendant meeting the agent and selling him rock salt rather than meth.
  • Two weeks later, the police arrested the defendant. Upon searching him, they found a bag of marijuana in his possession, as well as the cell phone with the same phone number used by the undercover agent to initiate the sale.

The defendant and his two codefendants were indicted on multiple counts, found guilty, and sentenced. The defendant appealed.

The appellate court was faced with the issue of whether the defendant, who was the seller in the drug transaction, was properly convicted of an A.R.S. § 13-3417(A) violation.

The primary question was whether or not there was sufficient evidence to prove that the defendant used a wire or electronic communication to “facilitate” or “conspire” to commit the felonies.

This question evolved around the fact that there was no other evidence presented involving wire or electronic communications by the defendant except for that of the buyer, the undercover agent.

The defendant also argued that the offenses that were charged in connection with the wire communications statute involved the sale of rock salt, an imitation substance that falls under A.R.S. chapter 34.1 for Imitation Drugs; not chapter 34 for Drug Offenses, or chapter 23, for Organized Crimes, Fraud or Terrorism, as stated in the language of the statute pertaining to the wire communications statute.

The state responded that the cell phone was used to communicate with the undercover agent about the sale of an unlawful  drug.

Therefore, it was irrelevant that the drug was an illegal imitation substance provided after the communication.

The appellate court explained that they found no published precedent case that interprets the statute.

Therefore, in these situations the court looks to the plain language and the meanings of “facilitation” and “conspiracy” in its effort to interpret the statute.

An Arizona statute provides that “facilitation” is committed if someone who knowingly provides another with the means or opportunity to commit a crime.  They do so, knowing that the other person is committing or intends to commit the crime.

An Arizona statute provides that a “conspiracy” is committed when three elements exist:

  1. At least one of them or someone else will act in ways that constitute that crime; and
  2. Someone agrees with one or more people, intending to promote or help in the committing of a crime; and
  3. One of the people commits an overt act to further that crime.

The court used these statutory definitions of facilitation and conspiracy to interpret the wire communications statute.

It held that prohibited use of a wire or electronic communication is to knowing or with intent:

  • Provide someone else with the means and opportunity to commit a crime; or
  • To agree with someone else, that one of them, or another will act in ways that constitute a crime and commit an overt act to further the crime.

In several of the sales, the defendant was the seller and the agent was the buyer, and both were necessary to the transaction.

The defendant didn’t use the phone to facilitate or promote anyone else’s efforts to complete the sale, nor was their evidence that the defendant was conspiring with anyone else about the sale.

The defendant’s communications with the other people who delivered the drugs in certain transactions were in person.

In other transactions, the undercover agent came to buy drugs, but the defendant didn’t show up to sell them.   Continue reading

Overview of AZ HB 2489: Combatting Heroin Overdoses A bill we have been following closely, AZ HB 2489 was passed on April 10, 2015. The expected  effective date is July 3, 2015. Arizona now joins 26 other US states that have passed similar legislation.

First responder’s administration of opiate reversal injections, have been credited with saving over 10,000 lives in the USA where overdoses were reversed.

According to the National Centers for Disease Control (CDC), accidental overdose is now the number one cause of death in the USA, exceeding even automobile accidents for people among the age of 25 and 64.

Earlier this year, the CDC reported that heroin overdose deaths nearly quadrupled between 2000 and 2013.  An increasing number of Arizona residents have been overdosing on heroin and opiate-based painkillers like Codeine.  Arizona is now the sixth-highest state for heroin overdose fatalities.

Continue reading

Why Two Appeals Court Rulings Contrasted: Justices Review Effects of AMMA on Marijuana Odor on Probable Cause.

In late July, two different Appeals Courts in Arizona released contrasting opinions involving appeals to dismiss the Marijuana evidence due to lack of probable cause for the search.

In both cases the defendants argued the because of the Arizona Medical Marijuana Act (AMMA), the smell of Marijuana should not be used for determination of Probable cause.

In one case the conviction was reversed.  In the other case the conviction was affirmed.  Here we find out why they differed.

Arizona Appeals Court Ruling – Case #1 (No. 2 CA-CR 2014-0181)

On July 20, 2015, the Arizona Court of Appeals Division Two issued the first ruling.

The Court considered the effect that the Arizona Medical Marijuana Act (AMMA) had on probable cause to for issuance of search warrant, based on an odor of Marijuana.

In this case, the Appeals Court ruled that the scent of marijuana alone was insufficient evidence of criminal activity.

Therefore, it was not adequate to justify probable cause for search and seizure warrant.

The Appeals Court held that in order to satisfy the probable cause standard, the scent of the Marijuana would need to be combined with other evidence or facts, which were not presented in this case.

Continue reading

Police officers are not exempt from search warrant requirements, in order to perform community caretaking duties.

Under the Fourth Amendment of the U.S. Constitution and the Arizona Constitution, you have a right to be free from unreasonable searches and seizures.
This means that in most cases, a warrant is required to search your home, with few exceptions.

The exceptions include situations where “exigent circumstances” exist.

This allows police to make a warrantless entry when they have probable cause to arrest a suspect who has fled, or to stop the imminent destruction of evidence.

Another exception is that the police may make a protective sweep incident to a lawful arrest.

Still another exception is an entry due to an objectively reasonable basis for believing someone within the house needs immediate aid.

Recently, the Arizona Supreme Court limited warrantless searches in connection with the “Community Caretaking Exception,” which is the topic of this discussion.

The Incident

In this case, police officers and paramedics went to the defendant’s residence after receiving calls from neighbors, complaining that the defendant was behaving erratically.

When police and paramedics arrived, the defendant told them that he and his family had been handling up to seven pounds of mercury inside the home, which was being kept in the home in a glass jar.

Continue reading

Contact Information