Criminal Court Process - James Novak

When Drug Courier Profiling Evidence Is Used Against You at Trial for the Purpose of Proving Guilt, It Deprives You of an Essential Right

The Law Office of James Novak Team — Wed, 01 May 2019 17:44:47 GMT

The U.S. Supreme Court has long held that when the prosecution uses drug courier profiling evidence mainly as a way to prove guilt, it violates a person’s constitutional right to a fair trial.

While police can use drug courier profiling evidence to establish reasonable suspicion for purposes of stopping someone to investigate a crime, this evidence cannot be used at trial largely to prove they are guilty.

This is because by doing so, the defendant is essentially prosecuted for the conduct of others, rather than that of the defendant.

The Arizona Supreme Court recently issued an opinion in a drug trafficking case that centered on drug-courier profiling, and errors that occur at trial which are both fundamental and prejudicial.

The first issue presented to the court was whether the defendant’s claims could be heard on appeal after the defense failed to object to the drug-courier profiling testimony during trial.

The court also had to determine if the prosecution’s drug-courier profile evidence was properly admitted. If not, the court needed to decide if the defendant was entitled to a new trial.

The Arizona Supreme Court found that a fundamental and prejudicial error occurred at trial because the drug-profiling evidence was admitted for the purpose of proving that the defendant was guilty of the drug charges. As a result, the court remanded the drug convictions on those counts and ordered a new trial.

This article outlines the following Arizona laws, court procedures, and criminal defense issues:

Arizona Supreme Court opinion and discussion
Fundamental errors and case law
Standard of proof and remedies for fundamental errors
History and explanation of drug-courier profiling
Admissibility of drug profiling evidence
Arizona penalties for methamphetamine (meth) sales and transportation
How a criminal defense attorney can help resolve dangerous drug charges

Opinion and Discussion

Based on an ongoing investigation, police suspected that the defendant had been selling methamphetamine (meth).

Police later obtained a search warrant and placed a GPS tracking device on the defendant’s vehicle. After following the defendant’s movements for some time, police decided to stop the defendant after he left Phoenix AZ.

Two officers began to follow the defendant, and eventually the defendant attempted to make a U-turn. At that point, the officers blocked his path, and turned on their flashing lights to stop the defendant.

At the stop, the officers searched the suspect’s vehicle. Troopers found a handgun, several knives, a small scale, dryer sheets, coffee beans, and a disposable cell phone. The officers contacted the drug K-9 unit and a drug enforcement officer arrived at the scene. The dog elicited a response to the officers that indicated the K-9 suspected drugs were present in or on the defendant’s truck. The K-9’s positive response was elicited despite the fact that police didn’t find any illegal drugs in their initial search of it.

The defendant was arrested and taken into custody. Later, the arresting officer went back to the location where they stopped the suspect. That officer claimed to have discovered a small bag containing 48 grams of meth in the middle of the road. Additionally, the scale that police discovered in the defendant’s truck was found to have trace amounts of meth on it.

Prior to trial, the prosecution moved to introduce drug-courier profiling evidence to demonstrate that the defendant had engaged in behavior that was “indicative of and consistent with drug trafficking.” The trial court allowed the drug-courier profiling evidence to be admitted. In addition, several prosecution witnesses testified about their knowledge of common drug-trafficking methods and how the defendant’s behavior was consistent with that of a drug courier or drug trafficker.

The court allowed the prosecution’s witnesses to testify as to what third-parties had told them regarding the defendant’s suspected activities. At trial the defendant did not object to the admission of the drug courier profiling evidence, or to third party testimony.

At trial, the defendant was found guilty of dangerous drug sales and trafficking; possession of drug paraphernalia; tampering with evidence; and possessing deadly weapons while committing dangerous drug trafficking and sales crimes.

The defendant appealed his convictions and penalties to the Arizona Court of Appeals. The Appeals Court considered whether or not a fundamental error had occurred as a result of the trial court allowing the drug-courier profiling evidence to be used against the defendant at trial. The Court of Appeals affirmed the trial court’s decision.

The Arizona Supreme Court agreed to review the case to clarify what must be demonstrated for proof that a prejudicial and fundamental error occurred.

First, the court noted that the defendant did not object to the evidence until the appeal. An appellate court would normally conduct de novo review of a lower court’s legal ruling. However, because the defendant failed to object to the admission of the evidence, the court applied a much stricter standard. Specifically, the court will not reverse a conviction based on an improperly preserved argument, unless the error was both “fundamental” and “prejudicial.”

Here the Arizona Supreme Court determined that the lower court committed both a fundamental and prejudicial error in admitting the drug-courier profile evidence.

The court explained that it considers three factors when determining if an error is prejudicial: 1) Whether the error moves to the foundation of the case; 2) Whether the error takes away a fundamental right; and 3) Whether the error was egregious to the extent that it deprived the defendant of their right to a fair trial.

The AZ Supreme Court concluded that all the standards were met, and the drug courier profiling evidence was admitted in error.

The court noted that introducing drug profiling evidence at trial can have legitimate uses and therefore be admitted, such as justifying the reason for the stop. But that the prosecution’s intent in this case was to prove that the defendant was guilty because his actions were consistent with a drug trafficker. Therefore the drug courier profiling evidence was not admissible.

Lastly, the court determined that the evidence was prejudicial, and admitted in violation of the defendant’s rights; and therefore the defendant was entitled to a new trial.

What is drug-courier profiling?

Drug-courier profiling is an investigative tool used by law enforcement to help identify suspects involved in drug trafficking.

It involves police recognition of a specific set of characteristics or behaviors that are typically associated with those that engage in illegal drug sales, distribution, or transportation.

Police can rely on drug profiling evidence to justify reasonable suspicion for an investigative stop.

Drug-courier profiling was initially used in the 1970s by United States Drug Enforcement Agency (DEA) for use at airports.

It is still a common practice used today by law enforcement officers in Arizona and throughout the country to justify reasonable suspicion or an investigative stop.

What are some examples of drug courier profiling indicators?

At the present time, no uniform list of indicators exists to characterize drug-courier behavior or habits in all situations. These behaviors vary based on the drug enforcement agency, location, and type of illegal drug activity involved.

For example, the suspect may be engaging in “heat runs” where the driver attempts to throw police off their trail;

The suspect may possess firearms other deadly weapons; drug scales, large amounts of cash, disposable cell phones, paraphernalia; coffee beans or other substances that mask drug odor; Police observe that the driver frequently travels a known drug trafficking routes, or to neighborhoods where a large volume of illegal drug activity takes place.

The law enforcement officers will draw from their training, knowledge, and experience to identify a set of characteristics or behaviors that believe fits a drug profile. As a basis to justify reasonable suspicion for a lawful stop, police must consider all the circumstances, and not just the profiling indicators.

When is drug-courier profiling evidence admissible?

The U.S. Supreme Court has held that drug-courier profiling may be included in consideration of “totality of the circumstance” to justify an investigative stop (United States v. Sokolow, 1989).

However, drug-courier profile evidence is not admissible to prove substantial evidence of guilt (United States v. Beltran- Rios 1983). This is because it can result in a person being convicted of what others have done in the past, and not their own actions.

Arizona Courts have also consistently denounced the use of drug-courier profiling evidence specifically as the basis for the jury to reach a guilty verdict (Arizona v. Lee, 1998). Both the state and federal courts, however, do allow for profiling evidence to be admitted on a limited basis for other purposes (State of Arizona v. Urrea 2017). Examples of admissible uses may include presenting modus operandi information to educate the jury on specific drug operations or methods involved in the crime; the intention of the evidence to be admitted is to introduce non-prejudicial and probative value to a relative issue in the case.

The judge will rule on whether or not the drug-courier profiling evidence is unfair based on the circumstances and information presented. If the court finds that the evidence is prejudicial, it will not be admissible.

What is a fundamental error?

As it relates to a criminal trial, a fundamental error is one that deprives a defendant of a fundamental right under the U.S. or Arizona Constitution.

An error is fundamental when it moves to the foundation of the case, and denies the defendant essential rights needed to defend their charges.

Arizona courts have held that a fundamental error is “an error of such magnitude that the defendant could not possibly have received a fair trial…” (State of Arizona v. Henderson 2005).

A fundamental error is considered prejudicial if the outcome would have been different had the error not occurred. In criminal trials, the defendant carries the burden of establishing that a fundamental error has occurred.

In State of Arizona v. Escalante 2018, the Arizona Supreme Court clarified the standards which entail three the prongs below that sometimes overlap, to determine if a fundamental error occurred which include:

The error was moves to the foundation of the case;
The error deprived the defendant of an essential right needed to defend their charges; and
The error was so flagrant that it would not have been possible for the defendant to have a fair trial.

To determine if a fundamental error occurred, the higher court will consider the totality of the circumstances principle.

If it is established that a fundamental error occurred, and that the error was prejudicial, the remedy is for the judge to grant a new trial.

In Arizona, under the Rules of Criminal Procedure 103 (d), and the Federal Rules of Criminal Procedure, the court may consider a fundamental error, even if a claim was not preserved at trial.

What are the penalties for meth sales and transportation in Arizona?

Dangerous drug penalties are classified and varied based a number of factors. These include: amount of illegal drugs a person is found to have in their possession; whether the crime was a repeat or first time offense; prior criminal record; and aggravated or mitigated factors that apply.

Under A.R.S. 13-3401 (6) methamphetamine (meth) is classified as a dangerous drug in Arizona.

Under A.R.S. 13-3407, sales or transport of dangerous drugs in Arizona is a Class 2 felony.

Penalties for a conviction of meth possession with intent to sell, sales, or transport of meth include 5 to 15 years in prison for a first time offense.

If the conviction involves one prior the penalties call for 10 to 20 years in prison.

If the conviction involved meth, the defendant will not be eligible for probation, a suspended sentence, or release, until they have served the entire sentence ordered by the court.

Fines range up to 3 times the market value of the dangerous drug found in the defendant’s possession up to a maximum of $150,000 per person, and one million dollars for an enterprise.

If the total or combined amount found in the defendant’s possession equals or exceeds Arizona’s statutory Threshold Amount under A.R.S. 13 -3420, the person will not be eligible for probation, and the sentencing may be aggravated.

How James Novak of The Law Office of James Novak, can help you resolve your Arizona dangerous drug charges

When you face meth or any dangerous drug charges, your future and freedom are at stake. No matter how serious the charges, however, you have the right to defend them.

The best way to do this is to retain an experienced and effective criminal defense attorney who will protect your rights, defend your charges, and make sure you are treated fairly.

There may be strong defenses that apply to your case that you are not aware of. Some defenses include but are not limited to constitutional violations, weak or invalid evidence, trial defenses, statutory defenses, and police or court procedural violations. It is important that the attorney you hire is experienced and knowledgeable about drug laws, defenses, the court system, and alternative resolutions that may be pursued.

If you have recently been arrested for the possession, sale, transportation, or distribution of illegal or dangerous drugs in Maricopa County, contact The Law Office of James Novak. Attorney James Novak, PLLC today. James Novak is a former prosecutor, and experienced Arizona criminal defense attorney with decades of experience handling all types of criminal matters including Arizona drug possession and drug selling charges. James Novak provides a unique form a client-centered representation throughout every step of the case including investigations, motions to suppress, and jury selection and argument. If retained, Attorney James Novak will work hard to get the best possible outcome in your case.

To learn more about out how James Novak, experienced criminal attorney can help you resolve your charges, call 480-413-1499 to speak directly with an attorney about your matter. You can also complete the on-line contact form and receive a prompt call back from James Novak for criminal charges within the service area of Phoenix, Mesa, Tempe, Gilbert, Scottsdale, and Chandler AZ.

Additional Resources:

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

3 Things You Need to Know about Plea Deals and Deferred Prosecution

The Law Office of James Novak Team — Fri, 12 May 2017 02:42:39 GMT

If you have criminal charges, it is likely that you will be faced with the decision of whether or not to take your case to trial. As an alternative to trial, you may be offered a plea deal. In some cases the prosecution can offer participation in a deferred prosecution program if it is available for certain types of criminal charges.

Last year Maricopa County Superior Court reported that of 99.8 percent of terminated criminal cases, only 2.2 percent went to trial.

The United States Sentencing Commission (USSC) reported similar statistics in 2016. The USSC reported 97.3 percent of criminal cases were resolved without trial, while only 2.7 percent went to trial.

A majority of defendants opt for plea deals or deferred prosecution when made available to them, to avoid the uncertainties of trial verdicts, and harsh sentencing.

Prosecutors are encouraged to pursue plea agreements in criminal cases, and offer diversion programs when possible, to reduce court caseloads and to preserve the resources needed to conduct trials.

Defendants must also consider whether or not their statements made for purposes of plea negotiations or deferred sentencing, may be used against them if the charges are later prosecuted.

Recently, the Arizona Supreme Court reviewed a case in which the defendant opted to participate in deferred prosecution, but did not complete it. The Court considered the question of whether statements made by a defendant in connection with his deferred prosecution agreement were admissible.

Arizona Supreme Court Opinion

The case arose when a security guard found the defendant with marijuana in a restroom. The defendant was charged with a class 6 felony for possession or use of marijuana and participated in plea discussions.

The defendant rejected a plea agreement during a comprehensive pretrial conference. Shortly thereafter, his charge was reduced to a class 1 misdemeanor.

The defendant was extended an offer to participation in a drug treatment program, for which he agreed in exchange for deferred prosecution.

After accepting the deferred prosecution agreement, the defendant met with a representative of the diversion program to register. During the meeting which he attended with his attorney, the defendant completed a form that stated he understood his Miranda rights.

On the program’s statement of facts form, the defendant signed an agreement indicating that he understood that his statements could be used against him if he failed to complete the diversion program.

He admitted on the form that the marijuana was found in his possession on the floor.

A few months later, the State resumed the prosecution because the defendant didn’t attend seminars as required. He had also tested positive for marijuana and alcohol, in violation of the program terms.

The defense moved to suppress statements he’d given on the program registration form arguing that since the statements were made as part of plea discussions, they should be protected by Rule 410. The trial court denied the motion.

The defendant was found guilty after a bench trial. He was sentenced to a year of probation with a suspended sentenced.

He appealed the conviction. The court rejected the argument on appeal that his statements were inadmissible. The appeals court held that the defendant did not make admissions to a prosecutor during plea discussions and he had waived protection of Rule 410.

The appellate court held that Rule 410 didn’t apply because (1) discussions about deferred prosecutions weren’t plea discussions; and (2) those statements were given after he had rejected a plea offer.

The Court noted that the defendant had gone to the settlement conference where he’d gotten deferred prosecution with his father, his attorney, a prosecutor, and court commissioner present. No other options besides deferred prosecution were brought up at the hearing.

The defendant’s father had been corrected by the commissioner and prosecutor when he mistakenly said the son would have to plead guilty to participate in the program. The court explained that in deferred prosecution, a guilty plea is not entered. The defendant talked to his father before completing the registration paperwork, which included the form in which he admitted he possessed marijuana.

The Court took note that at no point was the defendant offered a plea deal. It explained that in a plea discussion the prosecution negotiates with the defendant about pleading guilty or no contest in exchange for a concession. In contrast, in a deferred prosecution discussion, they negotiate about whether the defendant will join a special program that results in a deferment or diversion before the guilty plea or a trial. When a defendant completes this program, his charges will be dismissed entirely. In contrast, a guilty plea never results in a dismissal since the defendant formally admits he committed a crime.

The Court held that Rule 410 and Arizona Rule of Criminal Procedure 17.4(f) didn’t apply to discussions about deferred prosecutions. It clarified that the appellate court was incorrect in holding Rule 410 didn’t apply only because he’d rejected a plea deal.

The Court also stated that the representative of the diversion program wasn’t an agent of the prosecutor for purposes of negotiating a plea. The defendant argued the representative was a state agent because the county attorney’s office name appeared on the forms. The Court rejected the idea that this made the diversion program representative a prosecutor’s agent for purposes of plea discussions, noting again he didn’t negotiate a plea.

Finally, the defendant argued his waiver agreement didn’t specify Rule 410. The Court explained a knowing waiver of Rule 410 only required that the defendant know the nature of the rights being abandoned and the consequences. He was specifically told by the prosecutor that if he failed the diversion program, the paperwork for the program could be used against him for trial. He was also told he could go to trial instead of making an admission. The drug conviction was affirmed.

3 Things You Should Know About Deferred Prosecution, Plea Deals & Legal Representation

Below is an overview of their framework, and the importance legal representation in these agreements:

I. Deferred Prosecution – 1) You do not plead guilty. Instead, you agree to participate in a special program when and if, made available to you by the court as an alternative to prosecution of particular types of criminal charges. 2) After successful completion of the program your charges will be dismissed. If you fail to complete the program the state will continue to prosecute the charges. 3) Any statements made in pre-trial discussions or written statements prerequisite to the program can be used against you.

II. Plea Agreement – 1) You must plead guilty.In a plea arrangement you are required to enter a guilty plea in exchange for a leniency in sentencing. 2) After an agreement is reached, the presiding judge will either approve or reject the plea agreement at their discretion. If the parties cannot reach an agreement the case will go to trial. 3) Statements that might otherwise be incriminating that were made to further plea discussions cannot be used against you, if you later decide not to accept the plea agreement.

III. Legal Advocacy – 1) Whether your matter involves a plea agreement or deferred prosecution, you should obtain legal representation as soon as possible. 2) In the least you should consult an attorney before your first court appearance which is usually the arraignment. If the prosecution extends an offer and you do not have an attorney, they often are unwilling to offer more favorable terms if you decide later to hire one. 3) Deferred prosecution is an offer made by the prosecution. However, defendants are sometimes surprised to learn that they do not qualify for the program, or that the court does not offer deferred prosecution for their charges. An experienced criminal defense attorney can help you to explore your options, make sure your rights are protected, and work to help qualify you for the program if it is available. If a plea agreement is involved, your criminal defense attorney will make sure that the plea terms are fair, constitutional, and the most favorable that can be obtained based on the circumstances of your charges.

Criminal Defense Attorney for Deferred Prosecution, Plea Agreement and Trial Mesa AZ

Possession of marijuana outside of the provisions of the Arizona Medical Marijuana Act is still illegal in this state. Those found guilty of marijuana possession, will be exposed to harsh felony sentencing.

The state imposes prison sentencing of ranges from 6 months to 1.5 years for possession of less than 2 pounds for personal use, felony records, fines, fees, assessments, participation in a substance abuse program, and any other penalties the court deems necessary.

For these reasons it is important to consult and retain an experienced criminal defense attorney to represent you in your charges. You will need an attorney with strong litigation and negotiation skills, and one who is familiar with the courts and rules of procedure in the jurisdiction where you were arrested.

James Novak, criminal defense attorney, is a former prosecutor in Maricopa County, with over 20 years of experience in handling criminal cases. He provides a free consultation for clients who face active charges in Mesa, Tempe, Phoenix, Chandler, Gilbert, and Scottsdale Arizona.

If retained, James Novak of the Law Office of James Novak will evaluate your case, the evidence, and all circumstances surrounding the incident. He will work with you closely to determine the best defense strategy and work to maximum your freedom and work vigorously to obtain the most favorable resolution for your charges.

Contact or call Attorney, James Novak at (480) 413-1499 for your free initial consultation. He will speak with you directly and in strict confidence to discuss your criminal matter, and defense options.

Additional Resources:

Other Articles of Interest from our Award Winning Blog:

Right to Legal Counsel in Criminal Proceedings

The Law Office of James Novak Team — Tue, 13 Nov 2012 18:47:28 GMT

Criminal Rights and Exceptions of Right to Counsel

A person’s rights to counsel can be found in the State’s Rules of Criminal Procedures; The US Constitution 5th and 14th Amendment; the Arizona Constitution; and Under Arizona Criminal Code A.R.S. 13-114. This segment focuses on the Rules of Criminal Procedure in Maricopa County.

Arizona Rules of Criminal Procedure – Right to Counsel

Rules 6.1 (a.) & (c.) entitle a defendant to be represented by counsel in DUI and criminal proceedings. However, they are not entitled to counsel if the offense has no possibility of resulting in jail or prison if they are found guilty.

A defendant may waive their right to counsel at any time.

Arizona Rules of Criminal Procedure – Withdrawal of Waiver of Right to Counsel Rule 6.1 (e.) allows for a person who previously waived their right to counsel, to also withdraw their waiver of right to counsel, at any time.

There is one exception to withdrawing a waiver of right to counsel at any time: A person is not entitled repeat a proceeding, they previously waived their right to an attorney, on the sole ground that they were unrepresented.

When Legal Counsel is Necessary

Defense services of qualified legal counsel are needed in all stages of criminal proceedings, that expose a person to jail or prison, if they are found guilty of the charges. These stages include:

Pre-trial Services;
Trial Representation;

Sentencing A person should also consider hiring a lawyer to represent them in pre-indictment cases, when a suspect is being investigated for serious charges, but has not yet formally been charged.

Legal Representation for DUI and Criminal Charges in Mesa AZ

It is unwise for a person to waive their right to legal counsel for DUI or criminal charges in which a person may be exposed to incarceration in jail or prison if found guilty. If a person moves forward with criminal proceedings unrepresented, irreversible harm can result in their case, and their defense may be compromised.

A defendant should always retain an attorney as early as possible in order to preserve all rights and defenses that may be used in the future to challenge or defend the charges.

If a defendant has jeopardized use of defenses, waived rights, or provided self-incriminating testimony, an attorney generally can’t undo the damage that has been done. They can’t go back and abolish the proceeding on the sole basis that the defense was compromised as a result of the defendant’s waiver of right to representation by an attorney.

In general, defendants usually do not secure favorable resolutions to their charges when they go unrepresented. A person who represents themselves if expected to adhere to all Rules of Criminal Procedure; understand their rights and laws; and consequences of their decision in the event they are found guilty of the charges. Early retention of a criminal defense attorney is a key factor in obtaining any favorable outcome in criminal cases.

Additional Resources:

• AZ Supreme Court – Rules of Criminal Procedure

• Maricopa County Superior Court

• Right to Counsel under Criminal Code

• US Constitutional Amendments

If you “Like” this article please let us know with “+1”. Feel Free to subscribe and “Share”!

Law Office of James Novak 4500 S. Lakeshore Drive Tempe AZ 85282 (480) 413-1499 www.Arizonacriminaldefenselawyer.com www.novakazlaw.com Arizona DUI & Criminal Defense Firm Serving Maricopa County Phoenix-metro, and surrounding East Valley Cities