If you are accused of a crime in Arizona and evidence was obtained through a warrant, you may still have options to challenge it. Warrants must meet constitutional requirements under both the United States and the Arizona Constitutions. This case offers key insight into how the courts evaluate those requirements and what your defense team can do to protect your rights.

Court Upholds Warrant, But Cautions Against Conclusory Affidavits

The case involved burglary and theft charges in Pima County. Police obtained a search warrant based on an affidavit that described the suspected individual, the items stolen, and the reason police believed those items would be found at a specific location. The accused challenged the warrant, arguing that the affidavit lacked the detail needed to establish probable cause.

The trial court rejected that argument, and the Court of Appeals affirmed. However, the appellate panel made clear that warrants must be based on more than vague suspicion or generalized statements. Judges must see clear, specific facts that show a direct link between the alleged crime and the place to be searched. The court noted that statements unsupported by detail, such as “the items may be found there,” will not meet the legal threshold.

What This Means for Search and Seizure Law in Arizona

Under Arizona law, a warrant cannot be issued unless the affidavit demonstrates probable cause that evidence of a crime will be found at the specified location. This includes details such as the timing of the alleged offense, the suspect’s connection to the place being searched, and the specific evidence expected to be found. A lack of clarity in any of these areas can lead to the suppression of evidence.

The ruling reinforces that probable cause is not a rubber stamp. Arizona courts must independently assess the facts presented. If the affidavit relies on assumptions, lacks recent information, or fails to establish a logical connection between the suspect and the location, the resulting search may be illegal.

How to Challenge an Unlawful Search Warrant in Arizona

If you believe a search in your case was not supported by probable cause, you may be able to file a motion to suppress. This motion asks the court to exclude any evidence obtained as a result of the unlawful search. In many cases, this can result in the dismissal of the charges or a reduction in the severity of the case.

Successful motions to suppress often focus on one or more of the following issues:

• The affidavit lacked specific facts tying the accused to the location;
• The information was too stale to support a current search;
• The source of the information was unreliable or speculative; and
• The warrant authorized a search beyond what the affidavit supported.

An experienced criminal defense lawyer will carefully review the affidavit, the warrant itself, and how the search was executed. If any part of the process failed to meet constitutional standards, the evidence may be excluded.

Why Early Legal Intervention Can Make a Difference

Challenging a search warrant requires strategic timing. If you wait too long, the court may consider the issue waived. That is why legal representation early in your case is critical. A defense lawyer can move quickly to request copies of the warrant and affidavit, review the chain of evidence, and file the appropriate motions before pretrial deadlines expire.

In addition to contesting the warrant, your attorney can investigate whether law enforcement exceeded the scope of the warrant during the search. For example, if police searched areas not listed or seized items not described, that overreach may create additional grounds to exclude evidence.

Call a Criminal Defense Attorney in Arizona to Review the Search in Your Case

Search warrants are one of the most common tools law enforcement uses in felony investigations. However, that does not mean every warrant is legal. If you were charged after a search of your home, phone, or vehicle, the Law Office of James E. Novak can help you evaluate whether the warrant was lawful and whether any evidence can be suppressed. Call The Law Office of James E. Novak today at (480) 413-1499 to schedule your free consultation. We will review the warrant in your case and help you take action to protect your rights.

That opportunity comes with strict requirements. Courts evaluate these petitions closely, and timing plays a central role in whether your case will be heard at all. A recent decision out of the Arizona Court of Appeals illustrates how these rules work in practice and what you must prove to move forward.

Understanding the Timeline Requirements Under Rule 33

To have your petition considered, you must file it within a reasonable period after discovering the issue that forms the basis of your claim. Arizona Rule of Criminal Procedure 33.4 sets the standard. If your petition involves claims such as newly discovered evidence, ineffective assistance of counsel, or judicial bias, you must show why the delay in filing was not your fault.

In the case recently reviewed by the Court of Appeals, the petitioner waited nearly sixteen months after sentencing before submitting a Rule 33 notice and petition. He claimed to have learned in October that the judge who sentenced him had financial ties to the prison system. The trial court dismissed the filing, noting that it was untimely and lacked an adequate explanation for the delay.

Alleging Judicial Bias or a Conflict of Interest

One of the claims raised in this petition involved an allegation that the sentencing judge had a financial conflict of interest. The petitioner argued that the judge stood to gain from the sentence imposed, based on retirement investments tied to the Russell 3000 index. He suggested this connection undermined the fairness of the sentence and justified relief.

Arizona courts take allegations of bias seriously but require specific and persuasive evidence. In this case, the only documentation offered was a letter showing that the judge belonged to a retirement plan that passively invests in a broad stock index. The court ruled that this was not enough to show a disqualifying financial interest. Without more direct evidence of influence or benefit, the petition failed to meet the legal standard.

What Counts as a Valid Rule 33 Claim

Arizona allows a post-conviction petition to raise several types of claims under Rule 33.1, including:

Newly discovered material facts that could not have been found with reasonable diligence before trial or sentencing;

Ineffective assistance of counsel that affected the outcome;

A violation of constitutional rights that had a substantial impact on the case; or

Judicial bias or misconduct that created an unfair proceeding.

To be successful, your petition must clearly state one or more of these claims, provide supporting documentation, and explain why the issue was not raised earlier. The court may reject the petition without a hearing if it fails to meet these requirements.

Avoiding Dismissal Based on Procedure

One of the most common reasons petitions are denied is procedural failure. In the case described, the petition was dismissed because it was filed too late, and the petitioner gave no explanation for the delay. Even if the court had accepted the timeline, the supporting documents did not reveal any actual conflict of interest that would have required reversal of the sentence.

The decision shows that the quality and timing of the filing matter just as much as the legal arguments. Your petition must be organized, supported by evidence, and submitted within the allowed timeframe. Filing too late without justification will almost always result in dismissal.

Post-Conviction Relief Can Be Complex and Highly Technical

If you believe your conviction or sentence involved a legal error, your options may still be open. However, the standards for post-conviction relief are strict, and the courts do not give second chances lightly. Every part of your petition must follow Rule 33 and be backed by objective evidence, not just suspicion or disagreement with the outcome.

That includes attaching any available records, affidavits, or documentation to support your claims. General complaints or unsupported accusations will not survive review. You need to demonstrate both legal merit and procedural compliance for your petition to move forward.

Contact the Law Office of James E. Novak to Discuss Your Case Today

Post-conviction relief can be the last opportunity to correct an unfair result, reduce a sentence, or raise issues that were not properly addressed in earlier stages of your case. These proceedings are complex, and success depends on a careful and strategic approach. At the Law Office of James E. Novak, we take that responsibility seriously. Our firm is committed to protecting your rights, exploring every possible path forward, and providing you with the guidance you need to make informed decisions. Whether you are exploring new evidence, concerned about how your case was handled, or unsure about your next steps, we are here to help. Call (480) 413-1499 now to schedule your free consultation and get the support you deserve.

State v. Almeida arose when the defendant was driving a car carrying his four-year-old son and fiancée. The victim was driving by himself. The defendant made a turn that cut off the victim, who hit the brakes. According to the testimony of the defendant’s fiancée, the victim responded by honking and tailgating them. She also said that the victim waved a gun. In the moment, she told the defendant about the victim’s gun.

When the cars pulled up to a stoplight, the defendant got out and stood next to the car with his own gun. The light changed to green, and the defendant got in his car and kept driving. Instead of letting it go, the victim gave chase, running two red lights.

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The victim called 911, and the dispatcher told him to stop chasing, but the victim continued for a while. The dispatcher then sent a police officer to meet the victim in a nearby shopping center. The victim went to the wrong place in the center but eventually met up with the officer. The officer searched the victim’s car and didn’t find a weapon. The victim claimed he never had one.

The defendant was arrested and put on trial. The trial court gave instructions on self-defense, defense of others, and defensive display of firearms. The trial court refused to give the defendant’s requested instruction on A.R.S. § 13-411, the crime prevention justification, on the grounds that there was no evidence to support it. The defendant was convicted and sentenced.

On appeal, the defendant argued that the judge should have given the jury instruction he requested on A.R.S. § 13-411.The state argued that the meat of the instruction was already covered by other instructions, so it didn’t matter that the trial court denied the request.

The instruction requested would have told the jury that his threat of deadly physical force was justified if he reasonably believed it was necessary to to stop an imminent aggravated assault. More importantly, the instruction also would have told the jury that a defendant is presumed to have acted reasonably if he is acting to stop what he reasonably thinks is imminent aggravated assault (or one of the other listed crimes).

The appellate court explained that a defendant is entitled to a jury instruction as long as it was on a theory supported by some small amount of proof. The court found that looking at the evidence that supported the defendant’s version of events, a rational jury could decide the victim acted as an aggressor. In this case, the defendant might reasonably have believed he needed to display the gun, while he was in the “zone of danger” in order to stop an aggravated assault.

The appellate court further explained that it didn’t matter if a jury might not find the defendant’s evidence believable. When deciding whether to give a jury instruction requested by the defendant, the trial court must look at evidence in the light that supports the defendant.

The appellate court also explained that the state was wrong that the requested crime prevention instruction was substantively covered by the self-defense and defense of third-person instructions. The crime prevention justification lets a jury know that a defendant is presumed to be acting reasonably in acting to stop an imminent aggravated assault. The state has the burden of proving the lack of justification. If the state fails to prove the defendant was unreasonable, the defendant must be acquitted. In this case, if the crime prevention instruction was given, it would have let the jury know about the presumption in favor of the defendant.

The appellate court reversed the conviction and sentence. Because of the presumption that the defendant acted reasonably and the burden on the state to prove otherwise, the crime prevention justification is an important one for defendants. However, a petition for review was filed to the Arizona Supreme Court, so this issue may still be in flux.

If you are charged with aggravated assault, the penalties are severe. It is important to retain an experienced criminal defense attorney who understands the nuances of all possible defenses. James Novak provides a free consultation for active criminal charges and serves Phoenix, Mesa, Tempe, Chandler, Gilbert, and Scottsdale, Arizona. Call today for a confidential and free consultation at (480) 413-1499.

Additional Resources A.R.S. § 13-411 (Crime Prevention justification)

A.R.S § 13-1204 (Aggravated assault)

A.R.S. § 13-404 (Self defense justification)

Requirements and Exceptions to Lawful Search Warrants in Arizona Other Articles of Interest Violations of “Search and Seizure” Laws: How they Impact Prosecution, July 23, 2013

U.S. Supreme Court Rules No Warrant Needed To Collect DNA If Arrested, June 9, 2013

Yes, You Have Constitutional Rights At An Arizona Checkpoint, July 5, 2014

Facts of the Case

Officers found the dead body of a man in his apartment after a call from the man’s brother in November 2018. When the police officers went to check in on the man, they immediately noticed an odor upon entering his apartment building. They pushed open the door and found the man dead on the ground – it appeared as if he had been dead for at least several days.

The officers investigated and noticed that there had been several fraudulent charges coming out of the victim’s bank account. They linked these charges to the victim’s roommate, who became the defendant in this case. After further investigation, they arrested the defendant and charged him with the murder. The defendant’s case went to trial, and he was found guilty as charged.

The Decision

The defendant promptly appealed the conviction, arguing that the prosecution unfairly introduced a written confession that he handed to a fellow inmate while he was incarcerated. According to the defendant, the court did not properly consider whether the note was voluntarily written, and if anyone coerced him to write the letter, the jury should not have been allowed to consider it as evidence.

The court viewed the evidence from the trial record and determined there was no reason to believe the written confession was coerced. The court could not find evidence of any threats that would have affected the defendant’s letter. In fact, said the court, the defendant had testified that the police were not at all involved in eliciting the confession from him. He wrote and delivered the letter to the other inmate without any influence from another individual.

Therefore, said the court, the defendant did not have a leg to stand on when he claimed the letter could have been coerced. The trial court, therefore, properly admitted the letter, and the jury’s finding would remain in place. The defendant’s conviction and sentence were affirmed.

Are You Looking for a Criminal Defense Attorney in Arizona?

If you or a loved one is facing allegations of a violent crime in Arizona, you can count on the Law Office of James E. Novak for your litigation needs. We offer thorough, carefully executed representation that is unmatched in the state, because we believe that each and every client deserves the best attorney possible to help them fight their charges. For a free and confidential consultation, give us a call today at 480-413-1499. You can also fill out our online form to tell us about your case and have someone reach back out to you as soon as possible.

Facts of the Case

According to the opinion, state troopers were on the lookout for a stolen vehicle one evening when they noticed the defendant loading items into the car they were looking for. The officers approached the defendant to arrest him, and he started running. A physical altercation ensued, but the officers were eventually able to arrest the defendant and take him to the station.

The defendant was charged with resisting arrest. He pled not guilty, his case went to trial, and the jury unanimously found him guilty.

The Decision

On appeal, the defendant argued that the trial court gave the jury improper instructions before jury members went to deliberate on his case. Before sending the jury to its deliberations, the trial court judge educated jury members on the law that would help them make a decision on the case in front of them. The relevant statute says that in Arizona, a defendant is guilty of resisting arrest if he or she uses physical force against an officer or uses any other means to create a substantial risk of injury for the officer.

According to the defendant, the fact that he could have either used physical force or used “other means” to create a risk of injury meant that there were actually two different crimes the jury had to consider. Because the judge made it seem like these were the same crime, argued the defendant, he lost a substantial opportunity to receive a verdict of not guilty.

The court looked carefully at the statute. Eventually, it concluded that the statute did not describe two different crimes, but instead, it described one unified crime. Both of the subsections the defendant referenced involve the same subject matter, and they both reference physical harm. The subsections, said the court, combine to create one single statute.

Because the statute did not actually consist of two different crimes, the trial court’s instructions were correct, and the defendant was not entitled to a reversal.

Are You Facing Criminal Charges in the State of Arizona?

If you or a loved one has been criminally charged in Arizona, give our office a call to talk through the most sensible next steps. At the Law Office of James E. Novak, our results are hard won, and our reputation is strong because we take pride in our personalized approach for each individual client and each individual case. For a free and confidential consultation with an experienced Phoenix criminal defense attorney, contact us today by calling (480) 413-1499. You can also fill out our online form to tell us about your case.

Facts of the Case

According to the opinion, a state trooper stopped the defendant and her friend because they had been following other cars too closely on the road one evening. The officer pulled the car over, asked the defendant and her friend a few questions, and requested that each individual hand over their identification. Neither the defendant nor her friend had a valid driver’s license.

The officer asked the pair if his dog could sniff around the car, and they both consented to the sniff. At that point, the dog alerted near the passenger door, and a search of the car revealed 275.6 grams of heroin under the defendant’s seat. A second search of the car revealed an additional 272.2 grams of heroin.

The defendant was charged and convicted of possession of a narcotic drug for sale.

The Decision

On appeal, the defendant argued that the officer’s use of the dog to search the car improperly extended the traffic stop. Under case law, dog sniffs conducted during lawful traffic stops are acceptable as long as they do not prolong the traffic stop “beyond the amount of time reasonably necessary.” Here, said the defendant, the dog sniff prolonged the traffic stop unnecessarily and thus violated her constitutional rights.

The court examined the record in the case and ultimately disagreed with the defendant. The officer requested identification from both of the individuals in the car, and the defendant could only provide an Arizona identification card, while the driver could only provide a suspended license. Thus, it was reasonable for the officer to further investigate the situation and see if there was any suspicious activity going on in or around the car.

Given this suspicion, the officer was within his rights to ask the defendant and her friend if his dog could conduct a sniff search of the car. The defendant’s rights were thus not violated, and her appeal was denied.

Are You Facing Drug Charges in the State of Arizona?

Speaking with a police officer in Arizona can be an incredibly scary experience, and we meet too many clients who incriminate themselves in these interactions without knowing their rights or the options available to them. At the Law Office of James E. Novak, our Phoenix criminal defense attorney prides himself on being an expert in the individual rights of criminal defendants, and we make sure each one of our clients is well-versed in the opportunities they have to defend their freedom. For a free and confidential consultation, give us a call today at 480-413-1499.

Facts of the Case

According to the opinion, the defendant stole a variety of weapons from another man, supposedly to use as collateral for a debt he owed. A few days after stealing the weapons, the defendant went back to the apartment where the man lived and broke into his residence. He found the man and the man’s daughter, then proceeded to threaten them with a baseball bat and a sword.

The man’s daughter barricaded herself, along with her boyfriend, in her bedroom. The pair immediately called 911, reporting the burglary and asking police to come as soon as possible. Meanwhile, the defendant used the bat to break a hole in the door, trapping both individuals in the bedroom. When police officers arrived, they arrested the defendant and his accomplice as they tried to run away. They also found a dagger and several other weapons in the defendant’s car.

The Decision

The defendant was charged with burglary, aggravated assault, and kidnapping. A jury found him guilty on all counts. On appeal, the higher court decided it needed to determine whether or not there was enough evidence for the defendant to have been specifically convicted of kidnapping. Under criminal law in Arizona, a kidnapping conviction requires that the victim be “restrained.” The defendant argued that he did not restrain his victim – she went to her bedroom voluntarily, and he did not physically confine her at any moment. The court disagreed. Even though he was not making physical contact with the victim, he intimidated her with a baseball bat and made her feel as if the bedroom was the only place she could go. Thus, said the court, the kidnapping conviction was reasonable.

The defendant also asked that the higher court review all of the trial proceedings to find out if other procedural errors had been committed during the hearing. The defendant suspected that the trial court did not run the trial exactly as it should have, and he asked the appeals court to look over the entire record in hopes of finding any errors that would reverse his conviction. After reviewing the record, the appeals court found no issues and decided to affirm the defendant’s conviction.

Have You Been Charged with Burglary or Aggravated Assault in Arizona?

If you are ending 2021 with criminal charges in Arizona, 2022 is a perfect opportunity to get back on your feet. At the Law Office of James E. Novak, we will look over your charges and present you with the best possible defense strategy to vigorously fight your case. Our lawyers are sharp, experienced, and dedicated to providing you with individualized representation based on your circumstances. For a free and confidential consultation, give us a call at 480-413-1499.

The Facts of the Case

According to the opinion, the defendant was found with a bloody knife, a store receipt, and a cell phone, which linked him to the murder of a store worker who was attacked in the store’s parking lot after refusing to hand over his car keys. The defendant argued that he acted out of self-defense at a bus station, but the DNA on the bloody knife and on the defendant’s clothes belonged to the store worker and no disturbance was reported at a bus station that night. Surveillance video showed the defendant getting out of the stolen vehicle to enter a store about an hour after the store worker was killed.

The defendant filed a motion to suppress the evidence found in his backpack and argued that the search violated his Fourth Amendment protections against unreasonable searches and seizures. The defendant reasoned that the backpack search was not a valid search incident to arrest since it occurred six hours after his arrest and that there were no other emergency circumstances justifying a warrantless search at that time. The trial court denied the defendant’s motion to suppress and the defendant appealed.

The Court’s Opinion

The trial court denied the motion to suppress for a few reasons. First, the lower court found that the searches conducted at the police station were routine inventory procedures related to booking and jailing a suspect. It also found that any items found inside the backpack would have been inevitably discovered because of the warrant police obtained at 10am after the defendant’s arrest. In this opinion, the appellate court explained that even evidence that has been illegally obtained by police can be admitted if the state demonstrates that the evidence would have inevitably been found due to lawful procedures. Here, the police officers lawfully seized and searched the defendant’s backpack incident to his arrest by placing all of the items into unsealed evidence bags before searching. Additionally, the police obtained a warrant authorizing the search of the defendant. Thus, because of routine inventory search and the warrant that would have inevitably led to the discovery of the incriminating evidence, the appellate court found that the trial court correctly denied the defendant’s motion to suppress.

Have You Been Charged with a Serious Crime in Arizona?

If you have been charged with a crime in Arizona, the Law Office of James E. Novak is ready to help you with your case. Attorney Novak is a skilled criminal defense attorney who has hands-on experience in handling matters involving serious crimes, including Arizona felony offenses, weapons charges, and drug charges. To schedule a free consultation and to discuss your rights and remedies, contact the Law Office of James E. Novak at (480) 413-1499.

The Facts of the Case

According to the court’s opinion, the defendant and four other individuals robbed an armored truck as two security guards attempted to refill an ATM. One of the individuals fired a rifle at the security guards, and a security guard fired a gunshot back. The shot fired by the security guard was fatal.

The defendant’s DNA was found on a rifle left near the scene of the crime, in addition to the deceased individual’s cell phone being found at the scene of the crime. The call records from the cell phone revealed that the defendant and the deceased had been in communication on multiple occasions and that the defendant had traveled to and from the location of the crime on the day of the incident. The State was authorized to conduct a wiretap on the phones of the suspects, leading to the defendant being arrested.

Police questioned one of the suspects from the robbery and showed the witness a photograph of the defendant, resulting in the witness failing to recognize the defendant. A year later, the witness identified the defendant in a photographic lineup. The defendant filed a motion to exclude the witness’s identification of him as a result of the suggestive manner in which the photographs were shown to the witness. Additionally, the defendant filed a motion to suppress evidence obtained through the phone wiretap because, at the time of the wiretap application being filed for approval, it did not include an affidavit from the principal prosecuting attorney.

The superior court denied the defendant’s identification suppression request because the witness’s identification was considered reliable, and further denied the wiretap suppression request because the application met the substantive requirements.

The Court’s Analysis

The appeals court agreed with the lower court’s finding that the identification of the defendant was inherently suggestive. However, the court found that the identification was nevertheless reliable. To determine whether an identification procedure is unduly suggestive, a court considers the following factors, weighing them against any suggestiveness of the identification procedures:

• The witness’ opportunity to observe the person;
• The witness’ level of attention;
• The witness’ degree of certainty;
• The accuracy of the witness’ description; and
• The amount of time passed between the incident and the identification.

Here, the court explains that the witness was also a co-conspirator of the crime, and thus spent an extended amount of time traveling with the defendant. The witness also described the events of the robbery, accurately described the defendant’s appearance, and testified that he was not influenced by seeing the photograph of the defendant a year before positively identifying him in the photographic lineup. Two years passed between the crime and the photographic lineup took place, but the court found that this factor did not fully weigh against the witness’s reliability.

The court concluded that the superior court was correct to hold the witness’s pretrial identification as reliable, and thus to permit the witness’s in-court identification of the defendant.

Additionally, the court affirmed the lower court’s denial of the defendant’s motion to suppress the wiretap because the application was not substantially deficient and the affidavit was filed sometime after the application was filed, which still sufficed in establishing that the principal prosecuting attorney had personally reviewed and authorized the wiretap application.

Have You Been Arrested for a Violent Offense in Arizona?

If you have recently been arrested and convicted of a violent crime in Arizona, contact attorney James E. Novak for immediate assistance. Attorney Novak has decades of experience handling complex cases and is passionate about defending clients facing all types of serious accusations in Tempe and across Maricopa County. To schedule a free consultation and learn more, call 480-413-1499.

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.

In this way, HB 2318 gives prosecutors and judges significantly more discretion when sentencing those who do not have a criminal record but face more than one open case.

HB 2319

House Bill 2319 deals with the collateral consequences of a drug conviction. A collateral consequence refers to any detriment that, while not technically part of a punishment one receives for a conviction, still has a significant impact on their life. For example, a conviction makes it harder for individuals to qualify for certain types of housing, get into school, or obtain employment.

HB 2319 helps those with an Arizona drug conviction on their records by prohibiting state agencies from denying an otherwise qualified applicant from obtaining a regular or provisional work license. However, there is an exception for teachers and health professionals, meaning these individuals will still be precluded from obtaining a license if they have a drug conviction on their record.

To be sure, these recent bills are a step in the right direction; however, there is still far to go. Arizona is known as a “tough on crime” state, which unfortunately means those facing even minor offenses have a lot on the line.

Contact an Experienced Arizona Criminal Defense Attorney

If you face criminal charges, Maricopa County criminal defense lawyer James E. Novak is here to help. Attorney Novak is a veteran defense attorney who skillfully handles all types of cases on behalf of his clients, including Arizona DUI offenses, drug crimes, violent offenses and weapons crimes. He provides a unique form of client-centered representation, always placing your needs and concerns first. He will diligently work to develop a compelling defense to whatever charges you are facing. To learn more, and to schedule a free consultation with an experienced Arizona criminal defense attorney, reach out to the Law Office of James E. Novak to schedule a free consultation today at 480-413-1499.

The newest aggravating circumstance is triggered when a defendant “uses a mask or other disguise to obscure the defendant’s face to avoid detection” during a crime.

To be clear, the new aggravating circumstance doesn’t criminalize wearing a disguise. Rather, it allows for an increased punishment for those who are convicted of committing a crime, while wearing a mask or disguise.

Opponents of the law expressed concerns that less serious, non-violent offenders may be subject to enhanced penalties because they wore a mask during the conduct giving rise to their arrest.

Prior to finding that the aggravating circumstance exists, a jury must find that the defendant was not only wearing a mask or disguise but also wearing the mask or disguise “to avoid detection.”

This may provide some relief to those who fear the aggravating circumstance would be applied in cases involving non-violent crimes in which a disguise was worn for reasons other than evasion.

The most common crimes that will be impacted are by HB2007 are robbery, and burglary, since masks and disguises are often used in these offenses.

This article includes a discussion of the new aggravated factor law pertaining to masks and disguises, other aggravated and mitigating factors in sentencing; the burden of proof for aggravated factors; examples of aggravated and mitigated factors; sentencing ranges and how penalties are imposed within them; and the role of a criminal defense attorney in the sentencing stage.

What constitutes a mask or disguise?

Currently, no statutory definition exists that describes what constitutes a mask or disguise as it pertains to this law.

Typically when no definition exists under the law, the court will look to the literal definition, or previous case law, that addresses the question based on the facts of the case.

Significant weight will be placed on the intended purpose of the disguise or mask at the time of the criminal offense, for purposes of deciding if A.R.S. – 13-701 (D) (26) applies.

The court will determine if there has been a sufficient showing based on the trier of facts beyond a reasonable doubt, that the disguise was being worn by the defendant in an attempt to avoid detection.

What is an aggravated factor in sentencing?

An aggravated factor in sentencing is a circumstance surrounding a crime that makes it more serious, calling for more severe penalties.

After a defendant is convicted of a crime, whether by judge or jury trial, or plea agreement, the court will then move on to the sentencing phase. This is when aggravated and mitigated factors are considered by the court.

Arizona Criminal Code Sentencing Provisions include sentencing ranges for which the judge must sentence the defendant. The judge has the discretion as to what level of penalties to impose following a conviction, as long as they fall within this statutory sentencing range.

A sentencing range is based upon specific classifications of charges. The level of penalties vary depending on the classifications, and type of charges. In general they include mitigated, minimum, presumptive, maximum, and aggravated. Mitigated sentences are those that are least severe within the range, and aggravated sentencing holds the harshest of penalties.

For dangerous offenses the levels are minimum, presumptive, and maximum. More severe penalties are included within the maximum range designation of dangerous offenses. When aggravated factors exist, the judge will consider imposing the maximum sentence in these cases.

Both dangerous and non-dangerous offenses have additional categories for repeat and historical offenses.

What are some other aggravated factors?

Some examples of aggravated factors under A.R.S. 13-701 (D) include: Displaying, threatening or using a deadly weapon during the crime; The crime involved an accomplice; The defendant was convicted of a prior felony within 10 years of the current conviction; During the crime the defendant impersonated a police officer; The defendant was paid to commit the crime; Immediately after the crime was committed, the defendant committed a hit and run; and The offense was a hate crime against a law enforcement officer.

The law outlines a list of 27 statutory aggravated factors. However, the court may consider other aggravating circumstances that are not listed in the law, including the defendant’s character, criminal history or other relevant circumstances.

What proof is needed to impose an aggravated factor?

In order to admit an aggravated factor in sentencing, the prosecution needs to provide showing beyond a reasonable doubt based on the facts and evidence.

If the aggravated factor involves prior felony convictions, it will be up to the court to determine the validity of prior convictions based on the information and facts introduced.

The exception to this is if the defendant admits to, or validates the aggravated factor.

What is the difference between a mitigated and aggravated factor?

A mitigated factor is the opposite of an aggravated factor. Mitigating circumstances are those factors that serve to reduce the penalties.

The judge will weigh the mitigating factors presented against the aggravated factors to determine of aggravated sentencing, or other level of sentencing will apply.

If only aggravated factors were presented, and no mitigating factors existed, the judge will generally impose aggravated sentencing.

If no aggravated factors were presented, and one or more mitigating factors exist, the judge will usually impose a mitigated sentence.

A.R.S. 13-70. (E), lists a total of 6 mitigating factors including such things as age, duress, trivial amount of involvement in the crime.

The court may also consider other relevant mitigating factors not on the statutory list, related to the defendant’s character, background, or history.

How can a criminal defense attorney help me resolve my charges?

For any person accused of a crime and facing criminal charges, the ideal outcome is to get the charges dismissed. An effective criminal defense attorney will look for ways to make that happen throughout the criminal justice process. If that is not possible, the prosecution will likely ask you to enter a plea agreement. If an acceptable resolution cannot be reached, you still have the right to take your case to trial.

A skilled Arizona criminal defense attorney can help you compile compelling mitigation evidence in hopes of receiving a lenient sentence. Judges will normally look at a defendant’s background, including the defendant’s contributions to society as well as their prior convictions, when fashioning a sentence. A judge, however, cannot sentence a defendant to the maximum statutory term without a jury finding that an aggravating circumstance exists. Similarly, a judge must document at least one mitigating circumstance if he intends to sentence the defendant to the minimum allowable statutory sentence.

The prosecution looks for evidence of aggravated factors in sentencing. However, they are not obligated to help you find or present mitigated factors to offset aggravated factors or reduce your sentence. This is also the case for presiding judge in that the judge has no obligation to introduce find or introduce mitigated factors to reduce penalties for the defendant. An experienced criminal defense attorney like James Novak will be your voice, look for mitigating circumstances, and provide a showing of the validity of these factors if they are applicable.

If you face felony charges, especially if they involve aggravated circumstances, it is important that you obtain strong criminal defense representation. James Novak of the Law Office of James Novak, PLLC is an experienced criminal defense attorney, and former prosecutor. Attorney James Novak provides his clients with upfront and honest advice from the beginning of their case throughout the entire process. If retained he will protect your rights and defend your charges.

With zealous representation and a keen knowledge of the relevant procedural and substantive laws, Attorney James Novak diligently represents clients in all types of Arizona criminal cases, including Arizona robbery crimes. James Novak offers a free initial consultation for those who face active charges in Tempe, Mesa, Gilbert, Scottsdale, Chandler, and Phoenix AZ.

To learn more, and to speak with Attorney Novak about how he can help you defend against the charges you are facing, call (480) 413-1499 or complete our contact form on the website site.

Additional Resources:

• A.R.S. § 13-701 Aggravated Factors in Sentencing
• A.R.S. § 13-702 First Time Felony Offender Sentencing
• Arizona Criminal Code Sentencing Provisions 2018- 2019
• Armed Robbery Laws
• Maricopa County Sheriff’s Office – Inmate Information for Families
• Arizona Department of Corrections – Inmate Programs and Services
• Maricopa County Superior Court – Warrant FAQs
• Maricopa County Clerk of Court – Return and Release of Bond Monies

Other Articles of Interest from The Law Office of James Novak’s Award Winning Blog:

• How to Avoid Self-Incrimination while in Custody for Aggravated Assault Charges
• How to Avoid Probable Cause for Arrest for Unlawful Flight
• 3 Things You Should Know about Plea Deals and Deferred Prosecution

Earlier this year, the Arizona Supreme Court issued a landmark opinion in an Arizona drug trafficking case in which the passenger in a GPS tracked vehicle was arrested in addition to the suspect driver.

In the case, the Arizona Supreme Court ultimately affirmed the defendant’s conviction, finding that the officers who conducted the search relied on previous case law in place, that held the conduct was permissible. With that, the court determined that the police acted properly and did not suppress the evidence, based on the good faith exception.

However, the court decided that moving forward police should obtain a warrant before engaging in this type of investigation. The court held that passengers who are not aware that a vehicle is being tracked by GPS, has a reasonable expectation of privacy while traveling in it.

This article provides the following:

• An overview of the court’s decision and it’s impact on Arizona;
• 3 circumstances in which it is lawful for police to conduct vehicle GPS tracking;
• Explanation of the exclusionary rule;
• Explanation of the good-faith exception to the exclusionary rule;
• Impact on your case when police obtaining evidence illegally;
• How to get evidence dismissed that was obtained unlawfully;
• Explanation of other legal issues central to this court opinion;
• What a criminal defense attorney can do to help you resolve your charges

Case Overview and Decision

The defendant and another man were driving a tractor-trailer from Georgia to Arizona. The truck belonged to the other man, but both shared the driving responsibilities.

The truck was registered as “Swiff,” but the truck was marked “Swift.” Arizona police ran the tags and noticed that the truck came back as stolen, but also registered to the man they later learned was driving the truck with the defendant.

Believing that the truck was being used to transport narcotics, police placed a GPS tracking device on the truck without obtaining a warrant. At the time, the officers did not know the defendant was in the truck.

Over the course of three days, police tracked the truck as it entered Arizona. Police observed the owner of the truck exit, conduct a hand-to-hand transaction, and then get back into the truck. Later, the truck traveled to California, stopped at a warehouse, and then came back through Arizona. Overall, police tracked the truck for 31 hours over three days.

Using the GPS tracking device to locate the truck, police pulled the truck over. At the time, the other man was driving, and the defendant was asleep in the cabin area. Both men denied officers’ requests to search the car. However, after a drug-detection dog signaled an alert, the officers searched the truck and found over 2,000 pounds of marijuana.

The defendant filed a pre-trial motion to suppress, arguing that the police conducted a warrantless search by placing the GPS tracking device on the truck, and in so doing violated his Fourth and 14th Amendment rights under the U.S. Constitution, as well as his rights under Article II, section 8 of the Arizona Constitution.

The court composed a detailed opinion, making several important holdings. First, the court held that the defendant had a reasonable expectation of privacy while he was a passenger who only occasionally drove the vehicle. Thus, the police officers’ conduct was classified as a “search” under U.S. Supreme Court case law. As a result, the court held that the officers should have obtained a warrant prior to placing the GPS tracking device.

The court, however, ended up deciding that the defendant’s motion should be denied based on the good-faith exception to the exclusionary rule. This was because at the time the police used GPS to track the suspect, police relied on case law in place was favorable to their conduct.

Arizona’s good-faith rule allows for illegally obtained evidence to be introduced at trial if the officer conducting the search was relying in good faith on an honestly held belief that the conduct was not illegal.

Here, the court explained that the officers’ conduct was based on an “objectively reasonable good-faith belief that their conduct [was] lawful” Thus, the court held that the exclusionary rule should not apply, and the evidence should not be suppressed.

What impact does this opinion have on Arizona?

Arizona Supreme Court rulings have potential to influence cases in the future with the same or similar questions that arise in the future and stands as case law in the state.

Unless an exception to the warrant applies, it will be necessary for law enforcement to obtain a valid search warrant if they wish to conduct GPS tracking on a vehicle in order to monitor the activities of the driver and passenger.

When can police legally track a vehicle with GPS?

Police can legally use GPS tracking on the vehicle you own or lawfully drive with a valid search warrant for probable cause; with your consent or the consent of a joint owner of the vehicle, or someone else who has lawful possession or control over the vehicle consents to GPS tracking; or with an exception to the warrant.

Exceptions to a warrant are specific circumstances recognized by the courts as those where the search can be conducted, when a warrant would otherwise be required.

One example is in the case of exigent circumstances. This applies when police reasonably believe that evidence is at risk of being destroyed, eliminated, or removed, before police can obtain a valid warrant.

Another exception includes situations that pose a threat to public safety. If police reasonably believe that GPS tracking on the vehicle is necessary because the situation presents an immediate threat to the public, the life of the officers or others, they can proceed without a warrant.

What is the exclusionary rule in criminal cases?

The exclusionary rule is a remedy adopted the courts which allows for suppression of evidence when it is obtained by police unlawfully in violation of a person’s rights.

The purpose of the rule is to discourage law enforcement from violating a person’s rights in an effort to obtain evidence.

The U.S. Supreme Court has held that the exclusionary rule applies when the manner in which the law enforcement officer behaves is “deliberate, reckless, grossly negligent,” or “recurring and systematic negligence.”

What is the “good-faith exception” to the exclusionary rule?

Exceptions exist for the exclusionary rule that serves to avoid penalizing police when their actions were reasonable under the circumstances. The “good faith exception” is an example of one of them. It applies when evidence was reasonably obtained by police because they relied on case law or particular statutes at the time, which was later reversed or overturned.

Another example where the good- faith exception applies is when police make an arrest based on a warrant that later turns out to be invalid.

What happens if police get evidence illegally, and then arrest me?

When police violate your rights in an effort to obtain evidence that leads to your arrest, your criminal defense attorney can move to suppress the evidence against you. If the court agrees to exclude the evidence, this often results in a dismissal of the charges

How can I get evidence dismissed that was obtained illegally by Police?

The most effective way to challenge evidence obtained unlawfully, is by retaining a private practice criminal attorney to represent you. Your criminal defense attorney will evaluate the facts, and if applicable will file a motion with the court to prevent it from being used against you. If the judge agrees, the evidence will not be used to prosecute you in the case. In some instances, another hearing will be required for the court to rule on the issue.

Trying to deal with the charges on your own without a criminal defense attorney can result in a harsh and swift conviction. It is important that you consult a criminal defense attorney in the jurisdiction where you received the charges, well before your first court date.

The prosecution represents the state and their sole purpose is to prosecute your charges and obtain a conviction. The judge has no obligation to point our flaws in the prosecution’s case, obtain favorable evidence, or to help you get a favorable resolution.

How can a criminal defense attorney help me resolve my charges?

Facing prosecuting of drug charges can be a traumatic and overwhelming event. Attorney James understands this. He will guide you through every phase of the legal process, and be your voice in the criminal justice system.

If retained, Criminal defense attorney, James Novak, of the Law Office of James Novak will evaluate the facts, evidence, and circumstances.

If your rights were violated, or other grounds exist, he will make every effort to get the charges exist.

If i is impossible to get the criminal charges dismissed, James Novak ill work closely with the prosecution to negotiate the best possible resolution. Some favorable resolutions for drug offenses include but are not limited to the following:

• No jail or reduction of incarceration time in return for successful completion of special drug treatment program;
• Reduction of charges to a lesser offense in the same classification;
• Reduction of classification of charges for example a felony down to misdemeanor;
• Probation as an alternative to serving jail or prison terms;
• Reduction of incarceration time;
• Reduction or elimination of fines
• Elimination of the risk maximum sentencing

If an acceptable resolution cannot be reached, you still have the right to take your charges to trial. James Novak is an experienced former prosecutor and highly skilled criminal defense litigator. James Novak will explain the pros and cons of taking your case to trial based on the strength or weaknesses of your case. If retained for trial, James Novak will provide strong legal representation for your trial.

If you have recently been arrested for a crime involving either drugs or guns, you should contact the Law Office of James E. Novak. James Novak is a dedicated Arizona drug crime defense attorney with over 20 years of personal experience representing those charged with serious crimes in Arizona. Attorney Novak works tirelessly to uphold the rights of those accused of Arizona drug offenses and other crimes. To learn more, call 480-413-1499 or complete our contact form to schedule a free consultation for your drug charges.

Additional Resources:

• U.S. Constitution 4^th Amendment Rights
• A.R.S. § 13-3407 (possession or transportation of dangerous drugs)
• A.R.S. § 13-3408 (narcotics transportation for sale)
• Maricopa County Sheriff’s Office | Jail Information for Families
• Criminal Sentencing Guidelines 2017 – 2018
• United States Drug Enforcement Agency – Phoenix AZ Division
• Police Report and Records Search – City of Mesa AZ
• Arizona Constitution – Article II, Section 8 – Right to Privacy
• Arizona Superior Court Drug Program

Other Articles of Interest from Law Office of James Novak’s Award Winning Blog:

• How to Avoid Self-Incrimination while in Custody for Aggravated Assault Charges
• How to Avoid Probable Cause for Arrest for Unlawful Flight
• 3 Things You Should Know about Plea Deals and Deferred Prosecution
• What You Need to Know About Your Rights in a Police Frisk

Authorized jail and prison officials screen mail, and record suspects’ phone calls.

The information they obtain may be used to prosecute pending or future criminal charges. The exception to this would be privileged communications between a defendant and their criminal attorney.

Here are three things to keep in mind to help you avoid self-incrimination:

1. Inmate phone calls are all recorded. Any information in those calls can be used against you, with few exceptions. Persons with whom you speak with could potentially be called upon to testify.
2. Formal or informal conversations with police, jail, prison officials, guards, fellow inmates, or others can be used against you.
3. While incarcerated, authorized persons are permitted to use legal methods to open, read, and monitor mail.

Seemingly innocent statements can be used against you to prosecute pending or future charges. There are a number of reasons for this. Police and prosecution are not just looking for statements that implicate a suspect in a crime. They can also use it to challenge the credibility of a witness.

Refraining from discussing your case with others not only protects your rights, but it helps others to avoid being subpoenaed for questioning about statements you made to them. Therefore, you should only discuss details of your case with your criminal defense attorney, or while they are present. Failing to do so, will strengthen the prosecution’s case against you, which could result in a swift and harsh conviction.

How do I invoke my right to remain silent?

To invoke your right to remain silent you must communicate your intentions. This can be done verbally, in writing, electronically or in any way that clearly indicates that you wish to invoke your right to remain silent. Simple remaining silent is not enough, and can result in the perception that you are being uncooperative.

What are the penalties if I’m convicted for aggravated assault?

If you face Aggravated Assault Charges, it is important that you consult an experienced criminal defense attorney as soon as possible, preferably before your first court appearance. Felony assault charges can range from Class 6 to a Class 2 felony. Sentencing guidelines fall within one of two categories 1) Dangerous or 2) Non-dangerous. Below are the sentencing ranges for both dangerous and non-dangerous aggravated assault categories:

Non-Dangerous Felony Assault

Class 6 felony – Minimum 6 month; Maximum 18 months in prison;

Class 5 felony – Minimum 9 months: Maximum 2 years in prison;

Class 4 felony – Minimum 18 months; Maximum 2 years in prison;

Class 3 felony – Minimum; 2.5 years; Maximum 7 years in prison;

Class 2 felony – Minimum 4 years; Maximum 10 years in prison;

Dangerous Felony Assault

Class 6 felony – Minimum 18 months; Maximum 3 years in prison;

Class 5 felony – Minimum 2 years; Maximum 4 years in prison;

Class 4 felony – Minimum 4 years; Maximum 8 years in prison;

Class 3 felony – Minimum 5 years; Maximum 10 years in prison;

Class 2 felony – Minimum 7 years; Maximum 21 years in prison;

The ranges above do not include mitigated factors, aggravated factors, presumptive sentencing, or repeat offense sentencing.

Fines can range up to $150,000.00 per defendant. The court may also order restitution, other statutory penalties, and those deemed necessary under other sentencing provisions.

What determines the classifications for Aggravated Assault Charges?

The classification of charges, and severity of the penalties will be based a number of factors including:

• The nature and severity of the victim’s bodily injury;
• If a fatality resulted from the assault;
• Whether or not the assault involved use of a deadly weapon;
• The age of the victim and whether or not they were a minor;
• Whether or not the victim was restrained and unable to get free during the assault;
• First time or repeat felony assault offense;
• If the defendant knows or has reason to know occupation for which the victim is engaged falls A.R.S. 13-1204, and was performing their official duties (police, peace officer, firefighter, teacher, medical care practitioner, public defender, or other judicial officers);
• Whether or not the defendant committed the assault while in or out of law enforcement custody.

Case Review

The case began after the victim and the defendant, as well as their girlfriends, drank alcohol and gathered for two days in an empty lot. Early on the second morning, the defendant stabbed the victim in the back repeatedly. The victim was able to take the knife away from his assailant, and the defendant fled the scene. The victim survived after undergoing surgery followed by an 8 day hospitalization.

The police found the defendant walking down the road after learning of the stabbing. When they asked him for ID, he gave them false names and birthdates. He later told them he’d been knocked out by a man in a hoodie and denied that he’d stabbed anybody. The victim advised the police that he was stabbed by a person with a nickname the defendant gave them. The defendant was arrested for the stabbing.

Before trial, the defendant spoke with a woman from jail, at which time he inquired as to whether or not the victim planned to testify. The defendant told the woman in several different phone conversations that the victim would be subject to retaliation if he testified. After the woman communicated this to the victim, he decided not to pursue charges, though he initially was going to pursue them. The defendant then advised what steps the victim needed to take to get the charges dismissed.

At trial, however, a fellow inmate testified that the defendant confided in him about the stabbing and thought the victim should have died because he tried to kill him. The witness also advised that the defendant advised him that if the victim testified, others would seek revenge and harm the victim. Finally, the witness testified that the defendant told him that he buried the knife following the stabbing.

Though the police were unable to find the knife, the defendant was convicted of aggravated assault and false reporting. The jury found the defendant guilty of aggravated assault. The jury also decided that the crime classified as a “dangerous offense” because it produced emotional, financial, and physical harm in the victim. It also found he’d been convicted of two prior felonies, and therefore sentenced him to an aggravated sentence of 12 years in prison for aggravated assault along with a 60-day concurrent sentence for false reporting.

The defendant appealed his convictions arguing that it was a mistake to permit the prosecutor to ask the fellow inmate about the nature of his prior convictions. However, because the defendant hadn’t objected to this during trial, the court found that a fundamental error did not occur. The inmate had testified he came to know the defendant during incarceration through his role as jailhouse lawyer. The fellow inmate had a history of performing this work in the prison for over 30 years. The testimony was not elicited to impeach credibility by the state. The amount of time he’d been in prison and why, was offered by the prosecutor to show that other inmates trusted him for legal advice. It showed why the defendant had trusted him, and why he had different details which contradicted the defendant’s defenses.

The defendant also argued it was a mistake for the judge to instruct the jury it could consider facts suggesting he concealed evidence to decide his guilt. He argued that concealing evidence after a crime didn’t prove guilt on its own. The appellate court explained that a concealment instruction was appropriate if the defendant’s actions manifested his consciousness of guilt. In this case, the prosecution presented testimony he concealed the knife when he heard sirens coming, which showed a consciousness of guilt.

The defendant also argued it was inappropriate for a jury instruction to be given about his threats to the victim. The appellate court explained evidence of a threat against a witness was relevant in a criminal case to show the defendant tried to suppress evidence that would adversely affect him, and it was admissible to show conduct that indicated he was conscious of his guilt. For these and other reasons the defendant’s conviction and sentences were affirmed.

How a criminal defense attorney can help resolve your case in Mesa AZ

The most important way to protect your rights in aggravated assault charges is to retain an experienced and skilled Criminal Defense Attorney, like James Novak of The Law Office of James Novak, PLLC Tempe AZ, to represent you in the Aggravated Assault Charges.

The State of Arizona egregiously prosecutes felony assault crimes because they involve serious offenses against victims. A conviction is life altering and will jeopardize your future and freedom for years.

No matter how serious the aggravated assault charges are, you still have the right to plead not-guilty, and to retain legal representation to defend your charges. Once retained, you should follow your defense attorney’s guidance and instructions particularly when they relate to communications in or out of custody.

There are two sides to every story, particularly when it comes to assault cases. If retained, James Novak will present your side of the story, and be your voice in the criminal justice system. He will gather evidence available, and look for evidence that could help then outcome of your case.

James Novak of The Law Office of James Novak PLLC Tempe AZ is an experienced criminal defense attorney and former Maricopa County Prosecutor. He practices solely in criminal defense, and is highly skilled in defending felony assault charges. If retained James Novak will protect your rights, provide a strong defense, and work to get the most favorable outcome on your behalf.

Attorney James Novak offers a free initial consultation for active charges in Mesa, and Phoenix east valley cities. Call (480) 413-1499 or complete our contact form to discuss your criminal charges, and find out how James Novak can help you resolve your case.

Additional Resources:

• A. R.S. 13-404 Justification; self-defense
• A. R.S. 13-404 Justification; use of deadly force
• A. R.S. 13-1204 Aggravated assault laws
• A. R.S. 2907.01 False reporting to police laws
• A. R.S. 13- 105 (13) Dangerous Offenses defined
• 5^th Amendment Rights US Constitution – Cornell University Law School

Other Articles of Interest by the Law Office of James Novak, PLLC

• Admissibility of Expert Testimony in Domestic Violence Charges
• Does Enhanced Sentencing Apply under DCAC if Victim is Fictitious?
• What You Should Know about Threats, Guns and Assault Laws
• 3 Things You Need to Know about Plea Deals and Deferred Prosecution
• What You Need to Know About Your Rights in a Frisk

Under Arizona’s Dangerous Crimes against Children statute (DCAC), a person convicted of a sexual crime against a child is subject to enhanced sentencing. These penalties are severe and designed to provide greater punishments to those convicted of the offenses.

The question for the Court in this case was whether or not enhanced sentencing should be imposed under A.R.S. § 13-705(P) (1), when there was no actual victim.

The case arose after a defendant spoke with a woman who was a federal postal law enforcement officer. The defendant inquired about sexual involvement with the woman’s two young children, who were fictitious.

After the incident, the defendant was charged with solicitation to molest a child. The defendant entered into a guilty plea, and was sentenced to lifetime probation.

Later, the defendant’s probation for one of the counts was revoked which resulted in an order for the defendant to serve 10 years in prison. Upon release from prison the defendant’s lifetime probation on the second count would be reinstated.

The defendant moved to get the dangerous crimes designation dismissed. The court denied his request for a dismissal of the charges. However, the judge allowed him to be put back on probation as an alternative to serving a long term prison sentence.

A divided appellate court panel upheld the lower court’s decision. It found that the enhanced sentencing applied to solicitation to commit child molestation, even though victims were fictitious.

The defendant appealed to the Arizona Supreme Court. The Court explained that certain crimes are identified by section 13-705 as dangerous crimes against children which are perpetrated for persons less than 15 years of age. A crime under this statute is in the first degree when the offense is actually completed. The crime is in the second degree if the defendant attempts to commit a crime but falls short of completing the offense under A.R.S. § 13-1001.

The Court determined that in this case, solicitation to commit child molestation was a second-degree preparatory offense under A.R.S. § 13-705(O).

The defendant argued that a preparatory offense only included actions that showed a partial effort to commit a listed offense. The Court reasoned that a preparatory offense is one in which the defendant is preparing to engage, but has not committed. Therefore, it found that soliciting under the DCAC is a second-degree dangerous crime.

The Court reasoned that the language in the statute refers to actual minors under the age of 15. However, previous interpretation of the word minor has compelled a different meaning based on the context in which it is used. For example, lawmakers simultaneously enacted a law allowing convictions when the minor was a law enforcement officer pretending to be a minor; it didn’t separately specify a sentence for that type of offense.

In this case, the Court found that the case law didn’t bolster an interpretation that would include fictitious children. It explained that the imposition of enhanced sentencing was reserved only for those who actually committed serious crimes against children, and that the purpose of enhanced sentencing is to address the lifelong harm to a child victim of a sex crime. Further the Court explained that sentencing is reduced when older victims are involved, and if the molestation was not completed.

In conclusion, the Court decided that graduated penalties suggested that the lawmakers intended less serious punishments when an actual child was not victimized. It reasoned that if fictitious children were supposed to be included in the scheme, the legislature would have included language to that effect.

Determining that there must be an actual child victim for the enhanced sentences to apply under A.R.S. § 13-705(P)(1), the Arizona Supreme Court returned the case to the lower court to continue proceedings that are consistent with this decision.

What is the Dangerous Crimes against Children law?

The Arizona Dangerous Crimes against Children statute describes certain offenses under A.R.S. 13-705 for which enhanced sentencing is imposed. The DCAC applies when a person 18 years or older is convicted of committing specified offenses against children under the ages of 12 to 15. The sentencing ranges vary by named offenses under the law. For example a person convicted of sexual assault on a victim faces a sentencing range of 13 years minimum and 27 years maximum years in prison. This increases to a range of 23 to 37 years in prison if the person has a prior predicated felony. In another example, luring of a minor for sexual exploitation calls for sentences of 5 years minimum and 15 years maximum prison terms. This range increases to 8 years minimum and 22 years maximum if the person is convicted and has a prior predicated felony.

Below are some of the offenses listed under the statute:

• Attempted murder, or murder in the second degree;
• Felony assault that results in serious physical harm;
• Aggravated assault involving display or use of a deadly weapon;
• Sexual assault, abuse or exploitation;
• Child trafficking, smuggling, kidnapping, kidnapping for purposes of prostitution;
• Drug offenses that involve a child;
• Ongoing sexual abuse;
• Physical injury resulting from the manufacturing of methamphetamine;
• Bestiality;
• Solicitation, luring or aggravated luring for sexual exploitation;
• Misrepresentation of age;
• Mutilation;
• Predicated felony

A predicated felony is an offense involving child abuse, sexual crimes, or serious physical harm. It also includes offenses that in which threatening or use of a deadly weapon occurred.

What is enhanced sentencing?

Enhanced sentencing refers to increased penalty ranges to be imposed for particular criminal convictions. Enhanced sentencing statutes are laws enacted by the Arizona legislature intend to impose greater punishments for those convicted of felony crimes against victims, especially when the victim is a child.

Examples of crimes that fall within this category include Dangerous Crimes against Children, serious or violent crimes, and aggravated or predicated offenses.

Aggravated offenses are those that involve at least one aggravated factor. Some aggravated factors include use or display of a deadly or dangerous weapon, and repeat offenses.

How a criminal defense attorney can help if you’ve been charged with a sex crime offense

The State of Arizona prosecutes sexual crimes against children egregiously. A conviction of child molestation or other crimes against children call for harsh penalties which can include lengthy prison terms. A sex crime conviction can result in a defendant being identified on public registries as a registered sexual offender.

State’s mission is to prosecute the charges. They do not have an obligation to defend them on your behalf, or to make the process easier for you. Neither the judge nor prosecutor will challenge weak or invalid evidence that will be used against you. Further they will not help you find a way to mitigate charges or sentencing. It is crucial for you to retain your own legal advocate, who will look out of your interests.

An experienced criminal defense attorney who defends persons charged with dangerous sexual crimes understands that your future and freedom are at stake. A charge or complaint is serious, but it is not a conviction. An accusation does not mean you will be found guilty. You have constitutional rights that must be protected. An effective criminal defense attorney like James Novak, of the Law Office of James Novak, can defend your charges and protect your rights.

There may be defenses available that you are not aware of, that can be used to get your charges including pre-conviction and post-conviction challenges.

Pre-conviction defenses involve attempting to get the charges dismissed or reduced by using challenges that apply to the circumstances of the case. Examples may include raising the entrapment defense, constitutional violations, or challenging weak evidentiary issues.

Post-conviction defenses involve mitigating harsh sentences, and moving to get alternative sentences to incarceration such as probation.

You should always consult a criminal defense attorney regarding your charges before your first court appearance and before you plead guilty. James Novak of the Law Office of James Novak, PLLC is an experienced criminal defense attorney. He is a former prosecutor and effective trial attorney. If retained in connection with a Tempe sex crime charge, he will make sure your rights are protected and provide you with a strong defense for your charges. He offers a free initial consultation for people facing weapons charges and other criminal charges in Phoenix, Mesa, Tempe, Chandler, Gilbert, and Scottsdale, Arizona.

If you need legal representation for your sex offense charges, you can complete the on-line form, or call experienced criminal defense attorney James Novak at (480) 413-1499 to discuss your options for defense.

Additional Resources:

• A.R.S. § 13- 1410 (Molestation of a child)
• A.R.S. § 13-705 (Dangerous crimes against children)
• A.R.S. § 13- 1001 (Attempt to commit a crime classifications)
• A.R.S. § 13- 3827 (Sexual offender website requirement)
• A.R.S. § 13- 107 (Time Limitations – Dangerous Crimes Against Children)
• Arizona Department of Public Safety Sexual Offender Compliance
• Arizona Attorney General – Criminal Investigations
• Maricopa County Sheriff’s Department – FAQ
• A.R.S. § 13- 201 Requirements for Criminal Liability
• Arizona Internet Crimes Against Children Task Force
• Maricopa County Sheriff’s Special Victims Unit

Other Articles of Interest from Law Office of James Novak’s Award Winning Blog:

• How to Avoid Probable Cause for Arrest for Unlawful Flight
• 3 Things You Should Know about Plea Deals and Deferred Prosecution
• What You Need to Know About Your Rights in a Police Frisk

Profiling evidence and “cold” expert witness testimony is not always admissible. The decision about admissibility is a decision for the court. When making this determination the court will consider the rules of criminal evidence, content, relevance and objectivity of the testimony.

If improper witness testimony is admitted, it can potentially lead to an unfair guilty verdict. Therefore, proper challenges should be made as to the admissibility of planned expert witness testimony.

The Arizona Supreme Court recently ruled on a case in which the state sought to provide the jury with perspectives of why victims often change their stories about the incident that led to the charges. In it, the Court allowed general testimony from a “cold” expert witness, but restricted the testimony to a list of general questions.

The defendant was found guilty of aggravated domestic violence, kidnapping and influencing a witness. On appeal the defense argued that the expert’s testimony shouldn’t have been admitted because it was impermissible profiling evidence

Case Overview

The charges were brought against the defendant after his girlfriend was assaulted.

The victim initially reported that the defendant assaulted her at her hotel, after he found texts on her phone, which led him to believe she was cheating on him.

She stated that he strangled her, and that there was physical evidence to prove it. The defendant was later arrested for the incident.

Soon after the defendant was arrested, the victim wrote two letters in which she retracted her earlier statements that included allegations of assault and domestic violence.

In the letters she stated that her injuries resulted were the result of a bar-fight, not domestic violence. But she indicated that she was unable to recall details of the incident.

The prosecution moved to admit testimony by a doctor who had expertise on domestic violence. The purpose of the expert’s testimony according to the state, was to help the jury understand why the victim had continued her relationship with the defendant, provided contradictory statements after the initial report.

The defendant objected to the proposed testimony arguing that it would not help the jury, and would instead serve as unfair profiling. Following a hearing on the issue, the court decided to allow the doctor’s testimony on a limited basis, by admitting only answers to a list of questions.

At trial the prosecution used incriminating evidence of the defendant’s recorded telephone conversations with the victim. In the phone calls, the defendant apologized to the victim, and gave her a different story to tell the police. He also promised to marry her after his release from custody. In the recordings the victim told him that he should not have tried to kill her. The victim later testified at trial that she didn’t know who beat her up because she had been drinking. She also testified at trial that the defendant acted out of jealousy because she cheated on him.

The expert testified that she hadn’t reviewed any evidence in this particular case, but could provide general information into behavioral tendencies observed in some victims of domestic violence. One question posed to the expert was whether or not it was usual for a victim assaulted by a domestic partner to continue the relationship with the abuser. She replied that it was common, and that there were a number of reasons for this depending on the circumstances of the relationship.

The doctor noted that typically victims continued their relationship with the assailants due to threats, retaliation or fear. She explained that some would stay with the abuser because other family members might pressure them to stay. The doctor also testified that it was common for victims to blame themselves, and change their story about the actual events that took place. The same factors applied in those situations where the victim would later attempt to help the defendant get their criminal charges dismissed.

In final remarks, the prosecution instructed the jury to make no comparison of of the expert’s opinion and the facts of this case, and that the jury was not be bound to the expert’s testimony. The jury was instructed only to give it the weight they believed it deserved.

The jury found the defendant guilty of aggravated assault, aggravated domestic violence, influencing a witness, and kidnapping. The decision was affirmed by the Arizona Appeals Court.

The Arizona Supreme Court agreed to review the case and whether the expert’s testimony served as improper profiling.

The Court explained that profile evidence is submitted to show a defendant has one or more of a group of characteristics that are typically shown by someone engaged in a certain activity. The prosecution is prohibited from providing profile evidence as substantive proof of guilt. Doing so presents a risk of conviction not for the defendant’s own actions but for actions of others.

Expert testimony which explains inconsistencies by the victim is permissible for the purpose of judging the victim’s credibility. In this case, the questions were asked of the expert to help the jury understand the counter intuitive behaviors sometimes observed in victims involved in abusive relationships.

The Arizona Supreme Court explained any prejudice from the doctor’s testimony was slight, and didn’t outweigh its probate value. The evidence revealed some traits about which the doctor had testified. It noted that Arizona courts should consider the prejudicial effect of the testimony as a whole as well as each statement.

The Court advised that significant caution should be used to deciding to admit this type of evidence and admitted only on a limited basis. It affirmed the convictions and sentenc

What is a “Cold” Expert?

A “cold” expert describes a witness that provides testimony on a subject in order to give the jury insight into a particular topic, without applying it to the facts of a case.

Arizona’s Rule of Criminal Evidence 702 allows for testimony by a witness who has expertise that will help the jury understand certain topics in order to serve the purpose of fact finding.

In Arizona v. Salazar- Mercado, 2014, the Arizona Supreme Court decided that testimony of a “cold” expert was permitted in domestic abuse cases.

The Court examined this issue citing State of Arizona v. Haskie Jr., 2017 to clarify that admissibility of “cold expert” testimony should not be automatic. It held that it should only be allowed with analytical support; should be restricted to testimony within the scope witness’s expertise; be unbiased; and apply within the boundaries of Arizona Rules of Criminal Evidence.

What is Criminal Profile Evidence?

Profiling evidence is information or testimony that is offered by an expert witness that points to patterns, characteristics, or behaviors typically observed in offenders who commit certain crimes.

The nature of the evidence may vary. Examples of common profiling evidence include psychological, forensic, or physiological evidence.

Profiling evidence may be provided by psychologists, forensic psychologists, crime scene investigators, or drug enforcement officers, and other law enforcement officers. The expert witness provides information on common behaviors or characteristics observed in an individual that are typical to those displayed by other offenders of a specific type of crime.

The practice of profiling is often used by police and drug enforcement agencies to target drug couriers. The state often seeks to seek to admit the profiling evidence in some fashion with drug crimes, domestic violence, assault, sexual assault, and other violent crimes.

When is Offender Profiling Evidence Admissible?

In Arizona, testimony from an expert may be admitted as long as it is not unfairly prejudicial or misleading. It must also be relevant, and fitting for the purpose it serves.

In this case, the Arizona Supreme Court held that the testimony from the expert was admissible because its purpose was to prove a different element of the charges. That is, the state used the testimony to educate the jury about why victim in abusive relationships sometimes change their testimony or decide not to testify against the defendant.

The Arizona Supreme Court emphasized that careful consideration is needed when considering whether or not to admit cold expert testimony. It advised that even though the testimony was allowed in this case, there was still a risk that it would imply that the defendant was guilty.

The Court held that if the testimony is found to be admissible, the defense can move to restrict jury instructions by explaining the limited reasons for introducing the expert testimony.

In this case the Court cited decades of precedent cases holding that expert profiling testimony cannot be used as a deciding factor to determine a defendant’s guilt or innocence.

It also held that expert that offer general testimony without knowing the facts of the case, are prohibited from generalizing about typical incidents without verifiable backing.

The Court allowed for restrictive testimony based on a list of questions for a cold expert testimony to offer reasons why victims sometimes change their story.

Other holdings in this case included the fact that even if an expert’s testimony has the possible impact of profiling, it should not automatically be inadmissible.

In determining the admissibility of expert testimony court must rely on the Arizona Rules of Criminal Evidence, the context of the testimony, and use exceptional care to make sure it is not inappropriate.

The expert’s profiling testimony must be relevant. If the testimony is relevant, it may still be inadmissible if its bias considerably outweighs the purpose it serves as well as its impact on the entire case.

Decisions in this case may be cited as precedent in Arizona Courts in deciding similar questions in future cases that arise.

Why do I need Criminal Defense for Domestic Violence Charges in Mesa AZ?

Domestic violence charges occur frequent but can involve serious underlying crimes. Under Arizona Law A.R.S. 13 – 3601 Domestic Violence is a charge used to describe a relationship involving two or more persons involved in a dispute that results in a crime. Some offenses the commonly occur in domestic dispute situations include disorderly conduct, assault, aggravated assault, kidnapping, and weapons misconduct.

The mere accusation of domestic abuse, can have serious consequences. Often when police arrive on scene of a domestic violence charge, they get conflicting stories from witnesses or those involved. As a result, they sometimes will arrest both parties even though one of the individuals involved is innocent.

When the City of Mesa AZ police are called on to a domestic violence scene, they will conduct a background check to see if there is a trend of domestic violence calls to the residence. If so, the chances increase that they will make an arrest of one or both of the individuals involved in the dispute.

In any case it is important to retain an experienced domestic violence criminal defense attorney to represent you, make sure your rights are protected and defend your charges.

As an alternative to trial the state may offer diversion programs to help you avoid a conviction or incarceration. If eligible, in the case of domestic violence or assault, Maricopa County may offer you the opportunity to participate in anger management classes as an alternative to prosecuting the charges. When the rehabilitation program is completed successfully, the charges may be dismissed.

If you are not eligible for a rehabilitation program or one is not otherwise available based on the charges, you still have the right to take your case to trial.

A number of defenses may be available to get your charges dismissed or resolved to avoid being convicted of the crime.

For example some people charged with domestic violence coupled with assault charges might have been acting in self-defense due to the imminent threat of physical harm to themselves or a third party who was unable to protect themselves.

Occasionally there are situations in which the victim’s testimony contradicts audio or video recorded facts.

If your rights were violated, or the evidence against you is weak, your criminal defense attorney may file a motion with the court to prohibit the evidence from being used against you.

If favorable evidence or circumstances exist it may support your innocence, or lesson the charges or sentencing.

In order for a person to be convicted of domestic violence or assault, their actions must be intentional. If the victim’s injury was purely the result of an unintended accident, no criminal liability exists.

The defenses that can be used in your case will be based upon the circumstances and evidence surrounding your charges.

An arrest or criminal charges are merely the beginning of the criminal justice process, not a conviction. If you face domestic violence charges you should seek legal representation for your charges as soon as possible.

James Novak of The Law Office of James Novak is a domestic violence defense attorney who represents clients with active domestic violence charges in Phoenix, Mesa, Tempe, Chandler, Gilbert, and Scottsdale, Arizona.

If you were arrested for domestic violence contact or call the Law Office of James Novak today for experienced and proactive legal representation (480) 413-1499.

Additional Resources

• A.R.S § 13-3601.02 (Aggravated Domestic Violence)
• A.R.S § 13-2802 (Influencing a Witness)
• A.R.S § 13-1204 (Aggravated, Felony assault)
• A.R.S § 13-404 (Self- defense justification)
• A.R.S § 13-1304 (Kidnapping)
• Maricopa County Adult Probative Domestic Violence Program
• Maricopa County Domestic Violence Resources
• City of Mesa Police – Family Violence Unit
• Arizona Department of Economic Security – Domestic Violence Program
• City of Phoenix Police – Domestic Violence FAQs
• Arizona Rules of Evidence – 105
• Arizona Rules of Evidence – 401
• Arizona Rules of Evidence – 403
• Arizona Rules of Evidence – 703

Additional Articles of Interest

• 4 Deadly Charges that Arise from Domestic Disputes
• What You Should Know about Threats, Guns and Assault Laws
• How to Protect Your Rights in Plea Deals and Deferred Prosecution
• U.S. Supreme Court Rules No Warrant Needed To Collect DNA If Arrested

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:

• Batson Challenge (trial procedure defense);
• Search was not within scope of consent (constitutional challenge)
• Contesting of expert testimony on drug-courier profiling (evidentiary challenge)

Case Summary

The case arose when the defendant’s car was stopped for a traffic violation. At the time of the stop, the defendant consented to a search of his vehicle.

During the search police found 60 grams of cocaine in the rear cargo area of the car. Consequently, the defendant was indicted for charges of narcotics possession and transportation for sale.

The defense moved to suppress the drug evidence on the basis that the stop, search, and seizure violated his 4^th amendment rights. He also asked that the detective be excluded from testifying as an expert witness for the prosecution.

The court admitted testimony of the detective as expert, but did not allow the officers’ observations of the baseball cap or tattoo displayed on the suspect’s arm.

The defense raised a Batson challenge during jury selection, contending that the potential Hispanic jurors were unjustly removed from the initial pool of jurors summoned from the community.

The trial court reinstated three of those potential jurors previously struck, after finding that the prosecution failed to give adequate race-neutral reasons for the strikes.

Two of those brought back were impaneled as the final jurors that found the defendant guilty of narcotics trafficking.

The state dismissed the possession charge. But sentenced the defendant to 5 years in prison for the transportation of narcotics conviction.

On appeal, the defendant argued that the drugs seized in the warrantless search of his car should have been suppressed.

The officer had stopped the defendant initially because he didn’t use his turn signal to switch lanes, causing the driver next to him to suddenly apply his brakes.

After the driver was pulled over, the officer requested him to provide routine documents including license, auto registration, and insurance. The officer then asked the defendant to get out and wait for him next to his squad car while police completed the records check. The defendant agreed and was cooperative throughout the stop.

The officer then proceeded to conduct a routine vehicle identification number (VIN) check. As the officer moved closer to the defendant’s vehicle to see the VIN, he noticed items in the the defendant’s car that police believed were commonly associated with those of a illegal drug couriers. Those items included a baseball cap, and particular tattoo displayed on the defendant’s arm.

The officer asked the defendant if there were illegal drugs in his vehicle. The defendant denied, but agreed to a vehicle search for which he consented verbally and in writing. Shortly after the search began officers found cocaine in the spare tire’s storage area.

The defendant argued that it was unlawful for the deputy to stop him in the first place and to extend the stop to check his federal VIN stickers.

He also argued the search extended beyond the scope of his consent. The court disagreed and determined that the officer acted appropriately within the consent. The court noted that the consent included authorization for officers to search of all spaces within the vehicle.

The Appeals Court agreed with the trial court. It held that an officer asking about matters unrelated to the traffic stop doesn’t turn the encounter into something other than a lawful search and seizure.

The court held that even if the deputy had kept the suspect longer than he should have, the conversation that took place between the defendant and officers appeared to be consensual. The court noted that police are required to dismiss a driver at the point in which the time expires which is needed to satisfy the original purpose of the stop. The exception to this is if the encounter develops into one that is consensual. In that event the police are not required to dismiss the suspect at that point.

Next, the court noted that in the United States Supreme Court case of Batson v. Kentucky, the use of peremptory strikes to exclude possible jurors based on their race violates the Equal Protection Clause of the Constitution. When this is claimed, the person challenging the strikes must show there was discrimination on the face of things. The striking party must then give a race-neutral reason it struck a juror. The trial court then decides whether the party challenging the strike showed purposeful racial discrimination. The appellate court noted that the matter was one of first impression in Arizona, and the strikes were not justified.

The court looked at different approaches used in other states to remedy the situation. It held that if a Batson objection is sustained, the trial court has the discretion to restore the jurors who were improperly challenged, or grant a mistrial. It also found other remedies were possible, as determined by the scope and character of the violation. It determined that the trial court had acted appropriately in reinstating the jurors who weren’t properly struck.

The defendant also claimed the trial court had erroneously admitted improper expert testimony. The defense argued that the state’s expert testimony what was basically profile evidence related to how drug transactions happen. The state responded that the testimony at issue didn’t count as profile evidence, and even if it was, the error was harmless. The appellate court explained that general expert testimony about how drug traffickers operate is usually upheld. However, it isn’t appropriate for the testimony to compare a particular organization’s conduct to the defendant’s conduct in a specific case.

In this case, the appellate court found that as long as there was a proper foundation, the police officer could provide an opinion about whether the specific defendant had the drugs for personal use or sale. The conviction and sentence were affirmed.

Updated July 12, 2018

On July 11, 2018, the Arizona Supreme Court affirmed the defendant’s conviction and sentence.

The court reasoned that the trial court is in the best position to review the circumstances and validity of Batson claims, and thus, decide on the most appropriate remedy.

The Arizona Supreme Court noted that the judge restored unfairly excluded jurors, and forfeited the three discriminatory challenges that the prosecution attempted to use.

The Court determined that the trial court’s decision was proper, and it did not abuse it’s discretion by applying these remedies.

The AZ Supreme court reviewed the arguments for additional remedies that could have applied. However, the Court noted that the defendant did not reserve the right to seek other alternatives besides a retrial.

When Can Police Lawfully Search Your Vehicle?

If police have reasonable suspicion that you have violated the law, they can pull you over for a traffic stop. Without it, the stop is unlawful.

The exception to this is an official safety checkpoint stop. At a checkpoint, police must stop vehicles according to an advanced directive such as every 2nd or 3rd vehicle, or other mathematical pattern.

For routine stops, police can lawfully ask for identification, driver’s license, vehicle registration, insurance documents, and if there is a firearm in the vehicle.

Police can also conduct a background and Vehicle Identification Number (VIN) check. Though you are not required to answer questions asked by police regarding your involvement in a suspected crime, they can still ask.

Without a probable cause, a warrant, or your consent, police cannot lawfully conduct of search of your vehicle or belongings. However, their observations during the routine stop can be used to determine if probable cause exists based on totality of the circumstances.

If the evidence resulted from an unlawful search and seizure, your criminal defense attorney can file a motion to suppress it with the court so that it cannot be admitted for prosecution.

What is Drug Courier Profiling and When is it Admissible?

Drug courier profiling is a practice used by drug enforcement agencies and police to help them identify certain behaviors and characteristics displayed by an individual that is commonly associated with drug trafficking.

The U.S. Supreme Court has held that drug courier profiling evidence cannot be used as a basis to reach a verdict of guilty v. non-guilty verdict.

In deciding questions of reasonable suspicion or probable cause, the U.S. Supreme Court has rejected expert testimony for drug courier profiling. Instead, it determined that the basis for consideration should be on “totality of circumstances” (United States v. Sokolow).

This does not preclude police and drug enforcement officials from continuing to engage in the practice as part of meeting the totality of the circumstances standard.

Penalties for Narcotics Transportation Charges

In Arizona, narcotics transportation for sale charges are brought as Class 2 Felonies which carry severe penalties.

A first time non-dangerous narcotics trafficking conviction calls for minimum sentencing of 4 years and maximum sentencing of 10 years in prison. If mitigated factors exist a person can qualify for a mitigated sentencing of 3 years.

But if the amount of the narcotics involved in the conviction is more than or equal to the State’s Threshold Amount under A.R.S. 13-3419, the defendant will not be eligible for mitigated sentencing. If the offense involved an aggravated factor such as use of a deadly weapon, it will result in aggravated sentencing of 12.5 years. The maximum fine for an individual is $150,000 per person for each charge and up to $1,000,000 for businesses.

Criminal Defense Attorney for Drug Transportation Charges Mesa AZ

One thing to keep in mind is that an arrest is not a conviction. You have the right to defend your charges and hire a private criminal defense attorney to represent you.

James Novak is an experienced drug transportation defense attorney. If retained, James Novak, will evaluate your case to determine the most effective defenses that apply and may lead to the best outcome in your case. He will base defense strategies and challenges on the evidence and circumstances surrounding the charges.

In this case, the court agreed with one of the challenges. So while in it did not agree with all of them in this case, such defenses are often successful. If the evidence was obtained in violation of your rights, the court will exclude it from being used against you. In that event, it usually results in a dismissal of charges.

If a dismissal the drug transportation charges is not possible, other options will be explored to determine what will result in the most favorable resolution of your charges. Examples of favorable resolutions can be obtained through deferred prosecution, plea bargains, reduction in charges or sentencing, avoidance of jail or prison, waiver or reduction of fines.

If you face drug charges in Tempe, Chandler, Gilbert, Scottsdale, Phoenix, or Mesa, consult drug crime attorney James Novak, of the Law Office of James Novak PLLC. James Novak is a former Maricopa County Prosecutor, who practices exclusively in criminal defense. If retained, he will work hard to defend your charges, protect your rights, and personally handle your criminal matter. The state and prosecution do not have to tell the court that your rights were violated when the police stopped you or that the evidence was obtained unlawfully. Mr. Novak offers a free initial consultation for people facing active criminal charges in his service areas.

If you have been charged with a crime, contact the Law Office of James Novak though the website. You can reach Attorney James Novak directly by calling (480) 413-1499 regarding your criminal matter.

Additional Resources:

• A.R.S. § 13-3407 (possession or transportation of dangerous drugs)
• A.R.S. § 13-3408 (narcotics transportation for sale)
• A.R.S. § 28 – 815 A
• Maricopa County Sheriff’s Office | Jail Information for Families
• Maricopa County Superior Court – Drug Court Program
• Criminal Sentencing Guidelines 2017 – 2018
• High Intensity Drug Trafficking Task Force – Maricopa County
• United States Drug Enforcement Agency – Phoenix AZ Division
• Police Report and Records Search – City of Mesa AZ

Other Articles of Interest from our Award Winning Blog:

• Duress Defense For Marijuana Smuggling Charges
• Entrapment Defense for Narcotics Sales Charges
• Three Things You Need to Know about Plea Deals and Deferred Prosecution

Unless specifically outlined by law, carrying a loaded firearm on any school grounds will result in criminal charges under Arizona’s Weapons Misconduct law A.R.S. 13- 3102(12).

This article outlines the weapons misconduct laws related to guns on school grounds, threatening and intimidation (assault) laws; and criminal defense for weapons misconduct and assault charges.

Case Overview

In a recent Arizona gun crime case an appellate court considered a conviction of threatening or intimidating a victim in violation of A.R.S. § 13-1202(A)(1) and misconduct involving weapons in violation of A.R.S. § 13-3102(A)(12).

The case arose when the defendant and the victim got into a verbal fight on the road while driving in separate cars. The day after the incident, they saw each other in a school parking lot, and the victim approached the defendant’s truck on the school grounds. The victim noticed that the defendant was handling a gun. While holding the firearm, the defendant said “driving the like that will get you shot.” The victim reported the gun and the comment to a police officer at the school. The investigating officer looked at the defendant’s gun and found bullets in the magazine of the firearm, but not in the firing chamber.

The police charged the defendant with two counts of intimidation or threat and one count of misconduct involving weapons. Later, the court dismissed one intimidation count. But the defendant was convicted of the second intimidation charge, and one weapons misconduct count. He was sentenced to probation, a fine, and four sessions of anger management class. The defense moved for a rehearing on the conviction for weapons misconduct.

The defendant challenged the charges based on the exception for unloaded firearms under § 13-3102 arguing that the law was unconstitutionally vague because it did not define the word “loaded” as it pertained to the gun. The defendant’s view was that the exception could be interpreted as applying to a firearm that had bullets in the magazine, but not the firing chamber. The trial court did not agree with this, and denied the motion.

The defendant appealed to an Arizona Appeals Court. The defense argued that it was a mistake to affirm the convictions because sections 13-3102(A)(12) and 13-3102(I)(1) conflicted which caused them to be unconstitutionally vague.

Under Section 13-3102(A)(12), misconduct involving weapons happens when someone knowingly has a deadly weapon on school grounds. Section 13-3102(I)(1) allows an exception if the weapon is an firearm that’s not loaded and being carried within a method of transportation controlled by an adult. The defendant argued that the word “loaded” is vague because some states provide a narrower definition than “containing ammunition.” For example, in one state a firearm is loaded if there is an unused cartridge projectile or shell in a firing position or if the manual operation of it would cause it to be fired.

The appellate court explained that in their perspective a law is not unconstitutionally vague merely because it doesn’t explicitly define its terms or could be interpreted in more than one way.

The Appeals Court reasoned that the law provides a person of ordinary intelligence with enough notice that deadly weapons such as firearms aren’t allowed on school property. The defendant argued it was unconstitutionally vague when read in conjunction with the narrow exception. The appeals court disagreed, explaining the law wasn’t void only because it was challenging to figure out how far you could go before the law was violated.

The defendant couldn’t show vagueness by showing that “loaded” was defined differently in other states. The plain meaning of “loaded” means “containing ammunition,” as stated by the lower court. The phrase “not loaded” wasn’t unconstitutionally vague.

The court didn’t have jurisdiction to determine whether the lower court had committed a legal error in affirming his convictions. The appellate court declined to treat the appeal of the conviction as a special action and affirmed the weapons misconduct conviction.

What are Penalties for Assault and Weapons on School Grounds Charges?

Assault – Under Arizona’s Assault law A.R.S. 13-1202, charges are classified as a Class 1 misdemeanor. However, if the assault is committed in retaliation of the suspect’s being reported of a criminal offense, or if it is gang-member related, charges will be brought as a Class 6 felony.

For Class 1 misdemeanors, penalties include jail terms with a maximum sentencing range of 6 months and a maximum fine of $2500.00 per person and $20,000.00 for enterprises. This does not include victim or community restitution, court fees, and assessments that may be ordered by the court.

Under A.R.S. 13-707(B) a person who is convicted of the same misdemeanor offense within 2 years, charges will be raised to the next highest classification.

If the assault charge is elevated to a Class 6 felony, the defendant will be exposed to a minimum of .5 and a maximum of 1.5 years. This could be lower or higher if mitigated or aggravated factors are involved.

Firearms on School Grounds – Under Arizona’s Weapons Misconduct law A.R.S 13– 3102 (12), charges for possessing a weapon on school grounds is a Class 1 misdemeanor.

However, if the conduct also involves violations of hiring, engaging or solicitation of minors into a crime syndicate, drug offenses, marijuana transfer or sales, or other illegal enterprise, charges will be classified as a Class 6 felony.

Non-dangerous Class 6 felony sentencing ranges call for .33 mitigated sentencing up to 2 years maximum for crimes involving aggravated circumstances.

Dangerous Class 6 felony sentences expose a person to 1.5 minimum up to 6 years maximum prison terms.

Repeat offenses for both non-dangerous and dangerous weapon crimes call for more harsh prison terms, and other additional penalties.

How does this Case Impact Gun Owners in Arizona?

When the court hears or decides on cases, they rely on state laws enacted by the Arizona legislature. But when the law does not fully address a particular issue in question, the court will look to prior case rulings, also referred to as precedents.

Unless the the issue or case has been decided by the U.S. Supreme Court, there is also a chance it can be overturned in whole or in part by a higher court if appealed.

This court ruling centered upon the following laws, and precedents:

Under A.R.S. 13-1202 (A)(1) a person may be found guilty of assault if it is found that they threatened or intimidated a person verbally or by their actions involving a firearm. This means a person can be found guilty of assault even if they did not physically harm another, when the victim is threatened or intimidated by the words or conduct.

Under A.R.S. § 13- 3102 (1), a person may be found guilty of weapons misconduct if they knowingly possesses a loaded firearm on school grounds.

School grounds” means in or on the grounds of a school; “school” means kindergarten, grade school or high school whether public or private.

Under A.R.S. § 13- 3102 (I) (1) Arizona law provides an exception, to weapons misconduct laws if the firearm within the person’s possession or vehicle was not loaded with ammunition.

In this case ammunition was not in the chamber. However, there was ammunition in the magazine which holds the shells for the purpose of feeding the chamber repeatedly.

The defendant argued that the law was unconstitutionally vague because it does not define the word “loaded”, and that some states define it more narrowly.

When is it Legal for a Person to Carry a Loaded Gun onto School Property?

Arizona law A.R.S. § 13- 3102 provides for exceptions and specific circumstances in which firearms may be carried onto school grounds.

It also describes possessors who are eligible to carry loaded weapons onto the school grounds.

Below are some specific circumstances in which particular individuals are authorized to carry loaded guns on school grounds:

• A firearm that is not loaded, is locked in a vehicle, under the control of an adult, and not visible from the outside of the automobile;
• A firearm that is carried onto school property that has been approved for the purpose of being used in a school program;
• A firearm carried by qualified persons for the purpose of participating or instructing firearm safety, or hunting courses;
• A firearm carried by police officer, peace or security officer including one called upon by another officer to help with official security duties;
• A firearm carried by a member of the United States Military performing official duties;
• A firearm carried by a warden, deputy, investigator, or officer of a detention or juvenile corrections department performing official duties of their job;
• A firearm carried by an individual licensed, with permission, or authorization under this state law, or other United States Law, which to carry the weapon on school grounds as part of their official duties.

Criminal Defense Attorney for Weapons and Assault Crimes Mesa AZ

A conviction for weapons crimes, threatening, and intimidation charges will expose a person to harsh penalties in Arizona.

If you face either assault or weapons misconduct charges it is important that you obtain criminal defense representation for your charges.

James Novak of the Law Office of James Novak, PLLC is an experienced assault and weapons misconduct defense attorney. He is a former prosecutor, and effective trial attorney. If retained he will make sure your rights are protected, and provide you with a strong defense for your charges.

James Novak offers a free initial consultation for people facing weapons charges and other criminal charges in Phoenix, Mesa, Tempe, Chandler, Gilbert, and Scottsdale, Arizona.

Contact us online or call experienced criminal defense attorney James Novak at (480) 413-1499 to discuss your options for defense representation.

Additional Resource Links:

• A.R.S. § 13- 3102 I (1) | Weapons Misconduct Exceptions
• A.R.S. § 13- 3101 (A)(7) Prohibited Possessor
• A.R.S. § 13- 3101 (8) Prohibited Weapons
• A.R.S. § 13- 1203 (A)(2) Assault by Apprehension of Injury
• A.R.S.§ 13- 707(B) Misdemeanor Repeat Offense Sentencing
• A.R.S.§ 13- 1202 (A)(1) Threatening and Intimidation by Word or Conduct
• Phoenix Police Department | Weapons and Firearms Laws – FAQs
• Arizona Firearm Laws and Criminal Defense for Weapons Crimes
• Arizona Criminal Defenses for Assault with a Deadly Weapon
• Criminal Defense for Weapons Charges in Arizona
• Arizona Attorney General – Criminal Investigations
• Maricopa County Sheriff’s Department – FAQ
• A.R.S. § 13- 201 Requirements for Criminal Liability
• Phoenix Police Department | What to Remember if Stopped by Police

Other Articles of Interest from Law Office of James Novak’s Award Winning Blog:

• How to Avoid Probable Cause for Arrest for Unlawful Flight
• 3 Things You Should Know about Plea Deals and Deferred Prosecution
• What You Need to Know About Your Rights in a Police Frisk

You cannot be arrested solely for a non-criminal traffic violation in Mesa, AZ.

However, that changes if you fail to stop or try to elude police when you are signaled to pull over. Failure to stop violates Arizona’s unlawful flight laws.

The most important thing you can do when you realize police are signaling you to stop, is to pull over safely and promptly.

In the least you should slow down and find a way to let police know that you intend to pull over. Otherwise you could potentially create probable cause for your arrest.

Recently an Arizona Appeals Court ruled on whether or not a search warrant was required for police to follow a driver into a private driveway for a stop that began on a public road.

It held that though a person is not subject to arrest for a civil traffic violation, fleeing from police or refusal to stop can create probable cause for arrest.

This article features 5 important answers to questions about your rights at a stop, and defending subsequent criminal charges.

Why Did the Court Hold that Police Stop Without Warrant in Residential Driveway was Constitutional?

In a Arizona Appeals Court case, the defendant was charged with transporting methamphetamine (meth) for sale, possessing marijuana, and possessing drug paraphernalia. He was convicted and sentenced to a total of 11 years of imprisonment. On appeal, he argued that the trial court shouldn’t have denied his motion to suppress evidence due to a violation of his 4th amendment rights.

The case arose when two deputies saw a car stop and then turn, eventually following a random zigzag pattern through multiple intersections. The deputies checked the license plates and found there was an insurance cancellation for the car a month earlier. They drove after the car to start a civil traffic stop due to no valid insurance. Once they caught up with the suspect’s vehicle, the officers activated their emergency lights. A few seconds later, the suspect reportedly made what was described as a swooping turn into a private driveway. The police followed him into the driveway and into a backyard. It was there that the suspect complied with police. Police testified that at that time of the incident, they were unaware if the suspect had had any connection to that property.

Later, one of the deputies would testify that he felt the defendant was trying to run. The other deputy tried to call in the stop on his cell phone, while the first deputy went up to the car. The defendant began to exit the vehicle, but was instructed by police to remain inside the car.

The first deputy smelled pot and told the defendant to get out of the car and put his hands behind his back. He cuffed the defendant and checked for weapons. He found a stack of bills and a plastic baggie in one pocket, as well as a wallet plus two stacks of money in another pocket. The defendant had more than $2,400 in cash, and his car contained a burned pot cigarette, a charred metal spoon, and a bag containing meth.

The defendant denied knowing anything about the property where he’d stopped, but the police figured out that the property was his girlfriend’s property. The defendant was arrested, and he moved to suppress what the deputies had seized. The court denied his motion to suppress, finding that there was no probable cause or reasonable suspicion to detain him. It found that the place where the defendant had stopped in the backyard was not inside the home and that therefore, it was reasonable under the circumstances for the cops to follow him back there.

On appeal, the defendant argued that the deputies had gone onto his girlfriend’s private property without a warrant in violation of the Fourth Amendment, thereby subjecting him to an unlawful search and seizure. Deputies cannot go into somebody’s house to arrest him without a warrant, consent, or exigent circumstances. There must be an objectively reasonable basis for deputies to believe the circumstances justify a warrantless entry to raise the exigent circumstances ground. For example, if a deputy is in hot pursuit of someone suspected of committing a felony, there might be exigent circumstances to go into a private residence. Generally, curtilage or an intimate area of the home is considered part of the home. In this case, the trial court had found the defendant went into the curtilage but not the home.

The defendant argued that he didn’t try to flee the deputies in this case and that the reason they followed him was because he didn’t have auto insurance, which was only a civil infraction. The prosecution argued that by the time the deputies caught up with him in the backyard, they had probable cause for an arrest under A.R.S. § 28- 622.01.

The appellate court explained that any refusal to stop when asked by an officer in a police car is a violation of the felony flight statute. In this case, the deputies had turned on their emergency lights, but the defendant didn’t stop on the shoulder but instead drove onto a private driveway. Based on the total circumstances, a reasonable officer could conclude he was trying to escape. The driver’s attempt to avoid stopping for the officers by going onto the private driveway formed probable cause of a flight attempt, even though the purpose of the stop was to investigate a civil traffic violation. The convictions and sentences were affirmed.

Updated June 6, 2018:

On May 18, 2018 the Arizona Supreme Court reaffirmed the convictions and sentences in this case. It concluded the police did not violate the defendant’s rights by following him into the driveway. It reasoned that the Constitution does not allow for a driver to refuse to stop on a public road and retreat to a private driveway. Further the court found that the defendant’s actions implied that he was consenting to the stop.

Probable Cause for Arrest Q & As

Below are answers to 5 important questions about actions that create probable cause for arrest, and your rights at a police stop.

Can Police Detain You in Your Driveway Without a Warrant?

The U.S. Supreme Court has held that under the 4^th amendment police are prohibited from entering a home without a warrant. The individual’s property attached to a home such as an enclosed garage, are considered private. However, driveways are only semi-private.

There are a few exceptions recognized within the scope of the 4^th amendment warrant requirement.

Exigent circumstances that cause a situation to be emergent in nature to protect the safety of others or avoid destruction of evidence.

One exception to the warrant requirement is when exigent circumstances are present.

The U.S. Supreme Court has also held that police do not need a warrant is when they are in hot pursuit of a felon suspect. Police may finish pursuing a suspect in a chase that begins in a public location and eventually leads to a private driveway or home.

Does Failure to Stop, or Unlawful flight from Police Create Probable Cause for Arrest?

Yes, probable cause can be created by fleeing from police.

If the driver of a vehicle fails to stop after police have instructed or signaled them to stop even for a civil violation, they will be in violation of A.R.S. 28 – 622.01 or A.R.S 28- 1595.

Under Arizona law A. R.S. 28 – 1595 a person who knowingly fails to stop their vehicle when signaled by police to pull over may be found guilty of a class 2 misdemeanor.

Under Arizona Law A.R.S. 28-622.01 a person who willfully fails to comply with a police officer’s order may be found guilty of a class 5 felony. misdemeanor.

Below are 10 things you should consider if you are signaled by police to pull over:

1. Once you have reached a stop, remain in the driver’s seat until the officer instructs otherwise.
2. Always keep both hands on the steering wheel in plain sight where the officer can see them.
3. Refrain from making any sudden or unexpected movements, especially those that suggest you are reaching for something.
4. Do not provide anything until the officers requests it with regard to ID information. If the officer asks you for identifying information or vehicle registration, let the officer know where the document is and where you will be retrieving it from inside the vehicle.
5. If it is dark outside the vehicle, turn on the dome light or interior lights so the police officer can see you and your surroundings within the vehicle.
6. If others are with you in the vehicle, you should instruct them to remain quiet and calm. You should also advise them to comply with the police orders or instructions.
7. If the officer issues you a citation of any kind, you should try to remain calm. It is OK to ask for clarification if you have questions about it.
8. The most effective way to contest a citation or stop is through the proper legal channels after you have been released from custody, or detention. Do not challenge the charges or ticket in the presence of the officer at the stop, if he or she has written one. This usually will cause more harm than good. Usually it leads to the officer getting annoyed or feeling threatened. These situations can quickly turn bad and result in serious physical harm as well as additional charges.
9. Accepting a citation peacefully does not mean you agree with the citation. An arrest is not a conviction. You have the right to hire an attorney to represent you. You have the right to contest the charges or citation. If you wish to invoke these rights you should consult a criminal defense attorney who serves the area where you received the citation or were arrested.

What can an Attorney do to Help Resolve Drug Charges and Unlawful Flight Charges in Mesa AZ?

Attorney James Novak has extensive experience in defending drug crimes involving drug possession and possession with intent to sell, drug sales, distribution, manufacturing, transport, and unlawful flight charges.

James Novak of the Law Office of James Novak exclusively defends individuals charged with a crime in Maricopa County. Mr. Novak is a former Maricopa County Prosecutor with strong litigation skills and over 20 years of experience in DUI & Criminal Law

If retained, Attorney James Novak will represent you and defend your charges. He will make sure your rights are protected and determine the best defense strategy in your case.

James Novak will look for weaknesses in the prosecution’s case, gather favorable evidence if available, and work hard to obtain the best possible resolution to your charges.

James Novak offers a free initial consultation for people facing active drug crimes, DUI and other criminal charges in Phoenix, Mesa, Tempe, Chandler, Gilbert, and Scottsdale, Arizona.

Contact or call (480) 413-1499 experienced criminal defense attorney, James Novak, to discuss your options for defense, and representation.

Additional Resource Links:

• A.R.S. § 28-622.01 (Unlawful flight)
• A.R.S. § 28-1595 (Failure to Stop)
• A.R.S. § 13-3913 (Conditions Precedent to Issuance of Search Warrant)
• Arizona Attorney General – Criminal Investigations
• Phoenix AZ Police Department
• U.S. Supreme Court Terry v. Ohio
• Phoenix Police Department | What to Do if You are Stopped by Police

Other Articles of Interest from Law Office of James Novak’s Award Winning Blog:

• 3 Things You Should Know about Plea Deals and Deferred Prosecution
• What You Need to Know About Your Rights in a Police Frisk
• Reasonable Suspicion and Totality of the Circumstances Arizona