Burglary Offenses in Question

The State originally charged the defendant with committing five burglaries and one theft of five commercial establishments. Two of the establishments took place inside a restaurant and a coffee shop, and investigators found the defendant’s fingerprints at both locations. There was also video surveillance linking the defendant to the two establishments. The prosecution submitted this evidence at trial, and the jury found the defendant guilty of burglary in both the restaurant and coffee shop. Regarding the additional burglaries, where the investigative team found no fingerprints, the jury was unable to reach a verdict.

Defendant’s Request for DNA Evidence

After trial, the defendant filed serval motions, including a request for DNA testing of the items that the perpetrator touched while burglarizing the restaurant and the coffee shop. According to the defendant, if this testing produced another individual’s DNA instead of his own, he likely would not have been convicted of either burglary, since the evidence showed the same person likely committed both offenses. When the trial court denied this motion, the defendant promptly appealed.

The appellate court reviewed the defendant’s argument and ultimately decided it was without merit. Even if the DNA evidence had shown someone else’s DNA, wrote the court, fingerprint and video evidence connected the defendant to the crime. Therefore, it was reasonable for the jury to find the defendant guilty and for the trial court to deny the defendant’s request. The defendant’s guilty convictions and sentence would thus stay in place.

Do You Need a Phoenix Burglary Attorney for Your Case?

Fighting burglary charges is no small matter, and if you are trying to get your charges dismissed, you need an experienced Phoenix burglary attorney by your side. The criminal legal landscape in Arizona is tough to navigate and constantly changing, and by having an expert to walk you through the process, you can guarantee yourself the best outcome possible.

At the Law Office of James E. Novak, we take pride in our holistic and aggressive approach for each case we litigate. Our clients are our top priority, and we don’t stop fighting for our clients’ rights and freedoms. If you are in need of a qualified Phoenix burglary attorney, give us a call today for a free and confidential consultation at (480) 413-1499. You can also fill out our online form to tell us about your individual case and have an attorney reach back out to you as soon as possible.

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.

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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.

Since that time, police have been required to read suspects their Miranda rights while in custody before they are interrogated.

The Miranda principle has faced many legal challenges, including when police are required to read the rights.

The Arizona Supreme Court recently considered whether or not the police are required to read a person their rights before being questioned curbside.

In this case, the suspect was not read his Miranda rights, before police asked him about his involvement in a crime.

Instead, the police questioned the suspect curbside, after finding him sitting in front of a building.

In this case, the Arizona Supreme Court held that the suspect was not in custody for purposes of the Miranda warning.

Therefore the self-incriminating comments made by the suspect were allowed to be admitted and used against the defendant for purposes of prosecution.

In this article we will cover the following:

• 3 Things You Need to Know about Miranda Rights
• Arizona Supreme Court Case overview
• How a Criminal Defense Attorney can if you’ve been Arrested

This discussion is intended to provide insight into information that is not part of the Miranda reading, but is crucial in helping one to avoid self-incrimination.

3 Things You Need to Know about Miranda Rights

Here are three important things you should know about your Miranda Rights:

1. The police are required to read or say the Miranda rights to a suspect being taken into custody, but before being questioned about involvement in a crime.
2. You have Miranda rights whether they are read or not.
3. Any statements given police anytime before the Miranda warning is read can be used for purposes of prosecution. This includes statements made in seemingly friendly or casual conversation.

1. Police are required to read or say the Miranda rights to you after an arrest and prior to interrogation.

The police must read Miranda warnings to suspects following an arrest or while they are in custody, to inform suspects of important rights they possess. However, the timing of which the police are required to provide them to you does not change the fact that you have them outside of custody and before arrest

2. You have Miranda Rights whether they are read to you or not.

Under the Fifth Amendment of the United States Constitution, persons have the right remain silent of protection against self-incrimination.

Under the Sixth Amendment of the U.S. Constitution, suspects have the right to a criminal defense attorney. This includes having an attorney present during interrogation.

3. Statements you give to police before being Mirandized can be used against you.

Miranda warnings are intended to help you avoid running afoul of your constitutional rights if you are in custody, and the police plan to question you regarding your involvement in a crime.

If you do not invoke your right to an attorney and your right to remain silent, anything you say, even in casual conversation to the police can be used against you in court.

One police tactic used to obtain incriminating information from a suspect is through use of casual conversation.

Police often strike up a casual conversation or appear friendly during questioning.

This informal approach often catches a suspect off guard, leading them to unknowingly provide self-incriminating statements.

Your statements can later be admitted and used against you for criminal prosecution.

The following discussion reveals the crucial impact each of these three factors had on the defendant’s case in a recent Arizona Supreme Court’s opinion in this case.

Case Overview

The case arose when a driver saw the defendant sitting on a curb outside an empty building.

The building belonged to a church that was also located on the property.

An observant driver noticed that a board was missing, that had previously been placed over a broken window.

Due to prior break-ins in that building, the driver decided to report it to police.

Officer Huntley was dispatched and parked in the lot next to the building.

After talking to the driver who noticed the exposed broken window, the officer approached the defendant, who was still sitting in front of the building.

The officer noted that the suspect’s possessions were in a shopping cart nearby.

The defendant gave the officer identification upon request and agreed to a pat-down search for weapons.

The officer confirmed that the suspect was not armed, and there were no outstanding warrants for him.

The officer asked the defendant what he was up to, and if he knew anything about the board being removed from the broken window.

The defendant denied any knowledge of the board being removed from the window.

Then the officer asked the defendant to sit in the patrol car because he didn’t know whether anyone else was inside the building.

A second officer arrived on the scene. The defendant then sat on the curb again.

Then a third officer arrived on the scene and helped check the building for unsecured doors.

The pastor of the church arrived and told the first officer he’d be willing to pursue charges if there was a suspect.

The first officer again asked the defendant if he knew anything about the board being removed from the broken window.

The defendant admitted to the officer that he removed the board the day before and had entered to search for money.

The officer then arrested the suspect and escorted him into the police car.

After a search of the building, the officers found no evidence of forced entry, accept for the board being removed from the broken window.

The pastor reported that he found nothing missing.

The officer returned to the police car and advised the defendant of his Miranda rights.

The defendant was read his rights after he had already made the self-incriminating statements that led to his arrest.

For the third time, the officer asked the suspect about his entry into the building. Again the defendant admitted that he removed the board to go inside of the building.

The defendant was charged with burglary.

The defense moved to suppress the defendant’s incriminating statements.

The trial court denied the motion to suppress holding that the defendant was not considered to be in custody when the incriminating statements were made.

The suspect was found guilty of third-degree burglary. His sentence was suspended, and he was placed on probation, with the requirement that he serve 30 days in jail as a condition of probation.

The Arizona Court of Appeals affirmed the trial court’s denial of the motion to suppress the incriminating statements made by the defendant.

The defendant then appealed to the Arizona Supreme Court. The court reviewed the question of whether or not the defendant was in custody for purposes of Miranda at the time police questioned him.

The defense argued that police must provide Miranda warnings before interrogating someone who is in custody.

The Arizona Supreme Court explained in precedent cases they heard, someone is considered to be in custody if there’s been a formal arrest or a restraint on the suspect’s freedom to move.

The court noted that the limitation of not being free to move is generally associated with being arrested or taken into police custody.

However, the Court explained that the United State States Supreme Court more recently considered this issue.

Citing Howes v. Fields; Berkemer v. McCarty; and Maryland v. Shatzer, the U.S. Supreme Court held that not just one factor should be considered.

The Arizona Supreme Court held that when evaluating whether or not a person is in custody subject to Miranda, that multiple factors should be considered, citing U .S. Supreme Court opinions in Howes v. Fields 2012; and Stansbury v. California 2012.

Since then, the Arizona Supreme Court considered these factors when deciding whether or not a person was in custody for purposes of Miranda:

• If the suspect experienced substantial freedom of movement, in a way that would make any reasonable person to feel that they were not free to leave an interrogation; and
• The environment and location of where the questioning takes place, and the presence of objective indicators that an arrest has taken place;
• Length of the interrogation.

With regard to the first factor, the record indicates that after the defendant submitted to a pat down, he was asked to sit in back of the police car.

Later, the officer asked him to get out of the patrol car and again sit on the curb.

The court recognized that the defendant was under constant police supervision from the first time the officer spoke to him. They held that a reasonable person wouldn’t have felt free to leave.

The court then moved to the next factor, regarding the location of the questioning.

It noted that consideration must be given to whether or not the location of questing was familiar rather than one unfamiliar to the suspect.

An example of an unfamiliar location would be in custody at the police station (Miranda v. Arizona).

In Miranda the court held that the unfamiliarity and the change of environment to the police station resulted in a psychological advantage for the police. This environment, in which Miranda was interrogated, played a crucial role in the U. S. Supreme Court’s decision.

To be considered “in custody” for Miranda purposes, the environment of the questioning would need to present circumstances where “inherently coercive pressures” existed.

These circumstances would be such that they would push a defendant into complying with the interrogator’s will.

The court held that being questioned while in public view, serves to diffuse the feelings that the suspect is being threatened with physical force if they do not agree to answer questions.

In this case study, the defendant answered the questions on the street in public, in the familiar surroundings. The officer questioned him casually where he had been sitting on the curb when the officer arrived on the scene.

The third factor the court considered in this case was length of time. The Court noted that the total time that elapsed was an hour, from the officer’s arrival on scene until the arrest.

The Court cited precedent cases where questioning occurred, held that 1 hour to 1 ½ hours did not constitute being “in custody’ ’ for Miranda purposes.

Additionally, the Court reasoned that it matters whether there was an unreasonable delay by the police during the investigation in order to get an advantage over the suspect and increase the likelihood he would incriminate himself.

In this case, the defendant was not interrogated in isolation from others and was visible to passersby.

The investigation was a little bit longer, but this was appropriate in the context of an investigation of a possible burglary.

The officers acted efficiently and without exaggerated displays of authority in conducting the investigation.

The defendant was only asked a few questions, and his property was not seized.

The Court concluded that the curbside questioning was not conducted while the defendant was in custody, and the questioning was not coercive enough to require Miranda warnings.

The Arizona Supreme Court affirmed the lower court’s order denying the motion to suppress and affirmed the conviction.

How a Criminal Defense Attorney Can Help if You’ve Been Arrested for Burglary in Mesa AZ

In Arizona a person may be guilty of burglary if they intended to carry out burglary even if they did not take anything as in this case under A.R.S. 13-1506, and A.R.S. 13-1507.

Penalties for burglary convictions in Arizona are severe. All burglary charges in Arizona are categorized as felonies, which expose a person to prison terms if convicted.

Mere possession of burglary tools call for prison sentencing from for up to 2 years in prison.

Third degree burglary charges sentencing include a maximum of 3.75 years in prison.

Burglary charges in the second degree call for prison terms of 8.75 years.

First degree burglary charges expose a person to a maximum of 21 years prison.

James Novak, of the Law Office of James Novak, exclusively defends criminal charges.

He is former prosecutor and experienced criminal defense attorney. James Novak provides a strong defense for those who have been accused of criminal charges.

If retained, James Novak will evaluate your case determine the best strategy for your defense.

James Novak, works hard for his clients, and will pursue the most favorable outcome possible in in your case.

Criminal Defense Attorney, James Novak, offers a free initial consultation to those who face active criminal charges in Phoenix, Mesa, Tempe, Chandler, Gilbert, and Scottsdale, Arizona.

If you are charged with burglary or another felony offense, you can contact or call the Law Office of James Novak at (480) 413-1499, and speak with James Novak for your free and confidential initial consultation.

Additional Resources:

• A.R.S. 13-1508 (Burglary in the First Degree)
• A.R.S. 13-1507 (Burglary in the Second Degree)
• A.R.S. 13-1506 (Burglary in the Third Degree)
• Requirements and Exceptions to Lawful Search Warrants in Arizona
• Miranda v. Arizona
• Fifth Amendment of the U.S. Constitution
• Sixth Amendment of the U.S. Constitution
• Arizona Criminal Code Sentencing Chart 2016-2017

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• Mistake of Law: How to Challenge an Unlawful Stop
• Marijuana Odor Probable Cause for Search Warrant
• One of the Most Important Reasons to Resolve Your Warrant
• Entrapment: The most important requirement for Your Defense
• Your Right to Request Change of Judge in Arizona Criminal Court