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

The Challenge of Specificity

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

The Anticipatory Nature of the Warrant

The search warrant, in this case, was anticipatory, meaning it was conditioned on certain events occurring, such as live surveillance confirming the arrival of a vehicle matching the description and the informant confirming the delivery of drugs during that time. The warrant was then updated with the defendant’s identity after the events unfolded. The defendant argued that because the warrant did not initially identify him or his vehicle, it lacked probable cause.

Legal Analysis

The court, in its decision, highlighted that the Fourth Amendment requires sufficient particularity, ensuring executing officers can identify the premises and items with reasonable effort. The court also emphasized that probable cause is established when there is a fair probability that contraband or evidence of a crime will be found in a particular place.

The court acknowledged that the GPS search warrant did not contain the defendant’s name or vehicle license plate number initially, as this information was unknown at the time of obtaining the warrant. However, it found that the warrant described an older male driving a metallic truck with enough particularity to allow detectives to identify the vehicle and its driver without mistakenly searching elsewhere.

Ultimately, the court affirmed the conviction, asserting that the GPS search warrant was sufficiently particular and supported by probable cause. This decision highlights the challenges defendants face when contesting search warrants in Arizona criminal cases. People charged with crimes in Arizona should be aware of the legal intricacies involved in challenging evidence obtained through such warrants and seek competent legal representation to navigate these complexities effectively.

Have You Been Arrested or Charged with a Crime?

Navigating the legal landscape can be challenging, but understanding the nuances of search warrant challenges is essential for anyone facing criminal charges in Arizona. If you find yourself in such a situation, consult with an experienced Arizona criminal defense attorney with the Law Office of James E. Novak, and we can start preparing your defense. We represent people charged with all types of Arizona crimes, including drug offenses. To schedule a no obligation consultation to discuss your case, call 480-413-1499 or reach out through our online form.

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

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

Have You Been Arrested for an Arizona Crime?

If you or someone you know has been arrested or charged with a serious Arizona criminal offense, the Law Office of James E. Novak can help you fight the charges and potentially avoid suffering the harsh consequences that can come along with a conviction. Attorney Novak is an experienced Phoenix criminal defense lawyer with the ability to skillfully handle all types of Arizona criminal cases, including Arizona drug charges, weapons offenses, DUI allegations, claims of domestic violence, and other offenses. Attorney Novak can help you develop the best defense against the charge brought against you. To schedule a free consultation and discuss your case today, 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.

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

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

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

Before this case the standard for probable cause involving marijuana odor recognized by an Arizona Appeals Court was something the Arizona Supreme Court described as “odor plus”.

By odor plus, it meant that the odor of Marijuana did not necessarily denote criminal activity, and that it was insufficient by itself to provide probable cause for a search warrant.

Other circumstances needed to exist beyond the mere smell of marijuana to find probable cause.

But with the case we will be outlining here, the Arizona Supreme Court has reversed the Appeals Court’s Decision.

The Arizona Supreme Court adopted what they referred to as the “odor unless” standard.

By this, the Court means that Marijuana odor itself justifies probable cause unless there is indication that the suspect’s activities are compliant with AMMA guidelines.

We will take a closer look at the case and its impacts on Arizona by featuring the following topics:

• Overview of Arizona Supreme Court Case;
• Impact of Ruling on Arizona;
• Questions & Answers;
• Criminal Defense Topics related to Marijuana Charges

Overview

The case arose when police officers responded to a tip about the smell of marijuana coming from a warehouse.

When officers walked up to the complex, they could smell marijuana.

They believed the smell was coming from Unit 18.

Police obtained a telephonic warrant to search the unit, but found it was vacant.

Then, they applied to amend the warrant to search Unit 20, which was next door to Unit 18.

An an amended warrant was issued. Upon entry, the officers discovered that unit 20 was being used to conduct marijuana growing operations.

The officers seized plants, growing equipment, and paraphernalia. The defendant was identified as the occupant of the unit.

Officers charged the suspect with possession, production of marijuana, and child abuse.

At trial, the defendant filed a motion to suppress the evidence, arguing that the smell of marijuana by itself cannot establish probable cause due to the AMMA.

The trial court denied the motion, ruling that AMMA didn’t affect an analysis of probable cause.

The defendant was convicted and sentenced to concurrent prison terms with the longest of the terms 3.9 years.

The defendant appealed the conviction. An Arizona Appeals Court reversed the ruling and vacated the convictions and sentences.

It ruled that after AMMA, the odor of marijuana was insufficient evidence of criminal activity to support probable cause.

The dissent in that case argued that the smell should still be used to establish probable cause. But even if it weren’t, the possession here was not within the scope of the AMMA. Thus the warrant was justified.

The State appealed to the Arizona Supreme Court. The Court explained probable cause exists if facts known to a police officer warrant the belief in someone of reasonable caution, that contraband or evidence of a crime is present.

The court added that the facts did not have to show that more likely than not, criminal evidence will be found.

Instead, what is required is a fair probability based on the totality of the circumstances, including those arrived at as a result of the officer’s sense of smell.

Citing State v. Decker 1978, the Court held that officers are allowed to use all their senses in making a probable cause determination.

Thus, before AMMA, the odor of marijuana alone was enough to establish probable cause.

The Court explained that probable cause doesn’t hinge on the innocence or guilt of a particular act, but on the degree of suspicion attached to specific types of non-criminal acts, citing Gates v. U.S. 2013.

The court clarified that Probable cause requires only a showing that criminal conduct is probable, rather than a showing that actual criminal conduct took place.

That is why innocent behavior often provides a basis to establish probable cause.

The Court reasoned that despite the AMMA, the smell of marijuana in most cases warrants a reasonable person believing there’s a fair probability of criminal activity.

Thus, the court held that an officer would be justified in concluding that probable cause exists if they detect the odor of Marijuana.

The court noted that the State of Arizona didn’t decriminalize use or possession in general, outside the scope of the AMMA.

The AMMA made medical marijuana legal only in limited situations, rather than in general.

Those who are registered are subject to compliance of the AMMA’s strict provisions, and limitations to assure protections against prosecution.

Therefore, in spite of the AMMA the degree of suspicion attached to sight or smell of marijuana remains high.

The Court noted, however, that a reasonable officer should not ignore signs of AMMA-compliant use or possession, which consequently, serves to eradicate probable cause.

Police are required to include any material and exculpatory facts that would excuse the activities by those who are AMMA compliant, that would otherwise constitute probable cause in their affidavits to support search warrants.

This includes evidence supplied by suspects which indicates that they are qualified card holders.

It would also include operations taking place in buildings used as medical marijuana dispensaries under the AMMA guidelines.

The Court concluded that simply because the AMMA legalizes medical marijuana under specified circumstances, it does not dismiss probable cause, produced by the odor.

The Court noted that there was no indication that the police officers disregarded indications of the suspects being AMMA compliant.

The Arizona Supreme Court denied the defendant’s motion to suppress the evidence.

Impact of Ruling on Arizona

This ruling presents some challenges for those using or possessing marijuana in their homes or elsewhere in compliance with AMMA.

The Court held that the AMMA does not provide a broad immunity from searches where probable cause exists.

Further, the court emphasized that the AMMA does not offer more protection or expectation of privacy that that of the general public.

The Arizona Supreme Court ruling sets precedent which allows police to obtain search warrants, based on odor of Marijuana.

However, police cannot disregard indication that the suspect’s Marijuana related activities were AMMA compliant.

The Court ruled that in light of the AMMA, patients, healthcare professionals, and dispensaries, are still not immune from probable cause which police are obligated to investigate further.

However, probable cause resulting from the Marijuana odor can be dismissed by showing indication of their AMMA qualified compliance.

Q. & A.

Q. Do qualified AMMA patients have greater protections from being searched for marijuana related crimes, than the general public?

A. No. The Arizona Supreme Court made it clear in Arizona v. Sisco II, 2016, qualified users are not afforded greater protections related to probable cause for search warrants, than the general public. The court held that the AMMA affords limited protections and immunities for those who qualify for AMMA. Further, those registered under AMMA may still be subject to search for probable cause based on other grounds that exceed the scope of AMMA provisions.

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Q. Can police obtain a search warrant if they smell marijuana outside a building or vehicle in Arizona with no other evidence that suggests criminal activity?

A. Yes. In State of Arizona v. Sisco II, 2016, The Arizona Supreme Court adopted the marijuana “odor unless” standard.

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Q. What is the marijuana “odor unless” standard?

A. The marijuana “odor unless” standard that refers to probable cause in the context of AMMA. It means that the odor of marijuana is sufficient to establish probable cause, unless the suspect is able to provide indication their activities are within compliance of the AMMA.

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Q. If the police obtain a warrant to search after smelling marijuana, do the police need to stop their investigation, if the suspect shows their medical marijuana card?

A. Not necessarily. Rather, it means that police can’t disregard the fact that a suspect is a qualified medical marijuana user under AMMA. In that event, police are required to document this for the incident record, and consider this factor in their investigation.

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Q. If AMMA provides immunity from arrest and prosecution, why would police continue to investigate after valid proof of AMMA qualification is shown?

A. The AMMA provides limited immunity to the extent they are complying with its strict provisions and limitations. If based on totality of the circumstances, police had probable cause to believe a person was in violation of the AMMA guidelines, they may lawfully continue their investigation.

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Q. To obtain a warrant for probable cause do police have to show that the suspect was actually engaging in criminal activity?

A. No. Probable cause simply requires a “probability” or “substantial chance” that criminal activity is taking place or has occurred.

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Q. Does mere possession of a qualified AMMA card constitute probable cause to search?

A. No. Mere possession of registered AMMA card by a qualified patient does not constitute probable cause to obtain a search warrant as provided by A.R.S. 36- 2811.

Criminal Defense for Marijuana Charges in Phoenix – East Valley, AZ

Since Marijuana is still unlawful for use in Arizona outside the scope of the AMMA, users are at risk for arrest and prosecution.

The criminal penalties for violating AMMA guidelines are the same as they would be for non-qualified users.

Marijuana charges in Arizona are classified as felonies. All felony charges in Arizona expose a person to prison sentencing if convicted.

Even a charges of non-dangerous possession of a small amount for personal use is a Class 6 felony which calls for a minimum of 6 months to 1.5 maximum prison terms

Your future and freedom are in jeopardy if you face any kind of Marijuana charges. For this reason it is important to retain an experienced drug crimes attorney to defend your charges and protect your rights.

If you are charged with a marijuana possession, consult James E. Novak, a drug crime attorney in Tempe, Arizona.

James Novak is a former prosecutor and an experienced trial lawyer. If retained, James Novak, will provide you with a strong defense for your charges.

Depending on the circumstances, there may be defenses that will apply to your case that can lead to a favorable outcome.

Favorable outcomes include, but are not limited to qualifying for a diversion program to avoid incarceration; lowering the classification of charges; charges dismissed or acquitted.

James Novak, offers a free consultation for active criminal charges in Phoenix, Mesa, Tempe, Chandler, Gilbert, and Scottsdale, Arizona.

Call (480) 413-1499 or contact James Novak, of the Law Office of James Novak today to discuss your matter and options for defending your charges.

Additional Resources:

• A.R.S.§ 36-2802 (American Medical Marijuana Act; limitations)
• A.R.S.§ 36- 2801 (Presumption marijuana medical use; protections)
• A.R.S. § 13-3913 (Conditions Precedent to Issuance of Search Warrant)
• Arizona Department of Health Services –Medical Marijuana Requirements
• A.R.S. § 13- 3405 (Arizona Marijuana Laws)

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

• One of the Most Important Reasons to Resolve Your Warrant
• Does Marijuana Odor Constitute Probable Cause in Arizona? Yes…and No.
• Entrapment: The Most Important Requirement for your Defense Revealed
• Stalking Laws: 7 Myths and Facts
• Arizona Supreme Court Rules on Voluntariness of Drug Testing

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Arizona Supreme Court Case Overview

The case arose when an undercover police officer approached the defendant at a bus stop. The officer asked the man if he could get him some “hard,” the street name for crack cocaine.

The defendant agreed he would get the undercover officer $20 worth of crack cocaine for $10.

The officer drove the man to an apartment complex and gave him the $20 to take with him.

Ten minutes later, the defendant returned with cocaine. The cop arrested him for sale of narcotics.

The cop had secretly recorded the conversation with the defendant. On the recording, the defendant said, “I’m a good person” and “I don’t usually do this.”

The prosecution presented the recording of the conversation between the officer and the defendant as evidence at trial, over the defendant’s objection.

The defendant asked that the jury be instructed on the defense of entrapment as provided under Arizona’s law A.R.S. § 13-206.

In order to claim entrapment, a defendant must admit the substantial elements of the crime that is being charged through testimony or other evidence.

In this case, the trial court determined that the defendant hadn’t made the required admissions to the substantial elements of the crime.

Therefore, the request to instruct the jury instruct the jury on the Entrapment defense, was denied.

The defendant was found guilty by the jury. He was sentenced to 9 1/4 years in prison.

The Arizona Court of Appeals appellate court affirmed the trial court’s ruling on the grounds that he hadn’t admitted the elements of the crime.

An Appeal was then made to the Arizona Supreme Court. They agreed to review the case in order to consider whether A.R.S. § 13-206 requires a defendant asking for a jury instruction on entrapment to affirmatively admit the crime’s elements.

The court explained that the statute didn’t expressly state that a defendant could admit elements simply by not challenging the prosecution’s evidence.

The defendant argued that the Court should construe the statute as not requiring an affirmative admission and his silence on this point could be deemed an admission.

The Court found this argument by the defendant unpersuasive.

In its’ opinion, the court provided the history behind the entrapment laws in Arizona explaining that it was founded on common law.

Traditionally, the defendant had to admit substantial elements of the crime being charged.

If the defendant, in that case, denied knowledge of the crime they could not raise the entrapment defense.

Furthermore, the State had to act in such a way as to induce the accused to commit a crime that he wouldn’t otherwise have committed.

Simply providing an opportunity to commit the crime is not enough to be successful on an entrapment defense.

Under common law, a defendant could not passively admit the crime’s elements by not taking the stand in order to invoke the defense.

The Court explained that the statute had to be interpreted with an eye toward the requirements of common law, unless the language of the statute showed an intention to change those requirements.

The defendant argued that requiring him to affirmatively admit the elements in order to claim entrapment was in conflict with the Fifth Amendment right against self-incrimination.

In response to this argument, the Court explained that entrapment is not a denial of criminal responsibility but instead an affirmative defense.

Although the defendant had made incriminating statements and implicated himself unwittingly, he quite possibly may have been found not guilty of the charges if he had been able to use the entrapment defense.

To the contrary, however, he did not affirmatively admit substantial elements of the crime, and therefore, that defense was not made available to him

The recorded conversation didn’t prove that the defendant provided drugs to the officer

Instead, this was proven by the officer’s testimony. The defendant had not challenged that testimony, and so the court confirmed the conviction and sentence of 9.25 years in prison.

Q & A: Entrapment Defense

Q. Is it entrapment if undercover officer hides their identity as a law enforcement official?

A. Not always. If a person is committing a crime that they would have committed even if the undercover officer was not involved, entrapment would not apply under A.R.S. 13-206 (C).

___

Q. What is the burden of proof standard for entrapment in Arizona?

A. Under Arizona Law A.R.S. 13-206 (B) the burden of proof is by “clear and convincing” evidence. This is a medium level of proof that must be shown. It is a higher standard than “preponderance of the evidence,” but a lower standard than” beyond a reasonable doubt.”

___

Q. Who holds the burden of proof when the defendant wishes to use the entrapment defense?

A. Under Arizona Law A.R.S. 13-206 (B) the defendant is bears the burden of proof. Generally, the prosecution bears the burden of proof. However, since entrapment is an affirmative defense, the burden shifts to the defendant.

___

Q. If a person wishes to use the entrapment defense, must they admit that they committed the criminal act?

A. Yes. In order for the entrapment defense to apply under A.R.S. 13-206 (A), the defendant must admit to the substantial elements of the crime.

___

Q. Does the entrapment defense apply if a law enforcement officer provides a person with an opportunity to commit a crime?

A. No. The undercover officer’s role must be more substantial. The crime must be the law enforcement officer’s idea. The officer must induce, influence, or urge the accused to commit the criminal act.

___

Q. The police stakeout the scene of a planned crime based on a tip, and arrest the suspects while the crime is in progress. Does the entrapment defense apply?

A. No. Since the police did not urge, plan or induce the crime, the entrapment does not apply.

___

Q. If a defendant does not challenge the testimony or evidence, will the entrapment defense apply?

A. No. The Arizona Courts have held that to refrain from objecting to the evidence or testimony, does not constitute admittance of the substantial elements of the charges State of Arizona v. Grey, June 2016.

Requirements of a Valid Entrapment Claim

In this case, the Arizona Supreme Court outlined the requirements needed to make a valid claim of entrapment:

Citing State v. McKinney Arizona, 1972, and State v Nilsen, 1983, the court noted the following:

• Law enforcement’s actions must have induced the defendant to commit a crime that they would otherwise not have committed; and
• Law enforcement must have provided the accused with the opportunity to commit the offense; and
• The defendant must admit to the substantial elements of the crime; and
• A defendant may stipulate, testify, or have the admission read into evidence the admissions; and
• Merely refraining from challenging the evidence does not rise to the requirement of admitting to the substantial elements of the crime.

Arizona Entrapment Law A.R.S. 13-206

The entrapment law is what is known as an affirmative defense. Under A.R.S. 13- 206, entrapment is a defense in which the accused admits to criminal conduct and seeks to be excused from criminal liability, based on intervening circumstances.

Generally in criminal cases, the burden of proof lies with the prosecution and state to prove beyond a reasonable doubt that the accused is guilty of the crime for which they were accused.

But Affirmative defense are one of a few exceptions to this rule.

In the case of entrapment and other affirmative defenses, the defendant the accused has the burden of proving by “clear and convincing evidence” these three elements:

1. The law enforcement officer’s initiated the idea of the accused committing the crime;
2. The law enforcement officer influenced and provided the opportunity for the accused to commit the offense;
3. Prior to the law enforcement officer’s inducement of the crime, the accused had not planned to commit the crime.

Under Arizona’s law, entrapment does not apply if the accused was already planning or intending to commit the crime, and the officer simply provided the opportunity.

It is also not considered entrapment in Arizona if a police officer simply hides their identity during the interaction or exchange.

10 Defenses used to Challenge Drug Charges

Below are 10 other defenses, that may be used to challenge drug charges:

• Unlawful search and/or seizure;
• Mistake of fact;
• False identification;
• No probable cause for arrest; The officer did not have reasonable suspicion for detention;
• You had no knowledge that a drug crime was in progress;
• The illegal drugs found did not belong to you and you were not aware they were in your possession;
• The illegal drugs found in your vehicle or home were for personal use and not for sale;
• You did not have the amount of drugs that you were accused of having, in your possession;
• Law enforcement planted the drugs for prosecution, or someone else planted them in your possession to avoid prosecution themselves;
• Violation of other constitutional or procedural rights.

The best way to defend your charges whether or not any of these defenses apply is to retain a qualified criminal defense attorney to represent you, and raise the challenges on your behalf.

Criminal Defense for Drug Charges Phoenix and East Valley AZ

When you are facing drug charges in Arizona, it is important that you retain an experienced and highly skilled drug crimes defense attorney to represent you.

In addition to entrapment, there are a number of other defenses that can be used to defend drug charges.

It is crucial that your defense be tailored to the unique circumstances surrounding your case.

James Novak, Criminal Defense Attorney of the Law Office of James Novak, PLLC is a former prosecutor. He has a vast amount of experience defending drug charges in Maricopa County.

If retained he will protect your rights and defend your charges. He provides strong representation, and will work to obtain the most favorable resolution to your charges.

James Novak offers a free initial consultation to people facing active criminal charges in Phoenix, Mesa, Tempe, Chandler, Gilbert, and Scottsdale, Arizona. If you are charged with a drug crime, 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. 13-206 (Entrapment)
• A.R.S. 13-3408 (Possession of Narcotic Drugs)
• A.R.S. 13-3401 (Drug Definitions)
• Requirements and Exceptions to Lawful Search Warrants in Arizona
• National Library of Medicine | National Institute of Health
• Drug War Facts
• Drug Enforcement Administration Drug Facts
• DEA Phoenix Division

Other Articles of Interest from our Award Winning Blog:

• Drug Conspiracy or Facilitation Charges with use of Cell phones, Wireless or Electronic Communications
• Stalking Laws: 7 Myths and Facts | Arizona’s Stalking Law Legislative Changes Under HB 2419
• Ignition Interlock Device No Longer Required Drug DUI Penalty in Arizona |A Comprehensive Overview Of Arizona’s Ignition Interlock Program & Legislative Changes
• Arizona Supreme Court Rules on Voluntariness of Consent in DUI Testing Case
• Your Right to Request Change of Judge in Arizona Criminal Court
• Right to Counsel before DUI Breath Test
• Consent to Search Includes Drug Canine Vehicle Search

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

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

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

Case Overview

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

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

• The first transaction took place as planned.

• The agent again contacted the defendant and arranged another purchase. However, the woman who was supposed to deliver the drugs never showed up to complete the sale.

• Another purchase was set up, and as a result, the defendant’s co-defendant (another person charged in the crime) sold the meth to the agent.

• The next transaction did not go through because only the undercover agent arrived and no one met him to complete the sale.

• The next transaction resulted in another codefendant meeting the agent and selling him rock salt rather than meth.

• Two weeks later, the police arrested the defendant. Upon searching him, they found a bag of marijuana in his possession, as well as the cell phone with the same phone number used by the undercover agent to initiate the sale.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

• Provide someone else with the means and opportunity to commit a crime; or

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

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

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

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

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

Arizona Appeals Court Ruling

The Appeals court noted that the language under Arizona law A.R.S. § 13-1003 which pertains to the act of Conspiracy plainly requires at least two parties to the wire or electronic communication who are arranging to commit a crime.

Further the court observed that that under A.R.S. § 13-1004 Facilitation generally refers to the efforts of someone else, other than a primary or necessary actor to commit the crime.

In its conclusion the Court cited the Abuelhawe v. United States, 556 U.S. 816 (2009) to support its decision. In that case, the defendant’s phone call to the drug seller was determined to have facilitated the illegal drug transaction.

The court concluded that a defendant should not be convicted of “conspiracy” or “facilitation” of committing a felony § 13-3417(A) violation.

This, due to the fact that by acting as the principal in a drug sale between two parties, there was no evidence that the defendant was talking to someone other than the undercover officer, to further the drug transaction.

The convictions related to wire and electronic communications were vacated. The convictions on the remaining counts not related to the A.R.S. 13- 3417 (A), were affirmed. Penalties were subject to remand pending clarification of the sentences for the 5 counts that were vacated.

Impact of Ruling in Arizona

The impact of this ruling is that in order for a person to be convicted on counts under 13-3417 (A) for conspiracy or facilitation of a crime through use of wireless or electronic devices, the prosecution will need to present more evidence of communications with others, v. sole communications between with an undercover officer and the defendant.

Cell Phone Searches v. Privacy Rights

With advancements in technology and increased usage of electronic devices and wireless communications in everyday life, digital evidence has become a primary source of investigation in criminal investigations.

State and Federal laws have seen many challenges in this area as existing legislation becomes outdated.

As a result courts look to precedent cases at the state and federal level for guidance in rulings.

The United States Supreme Court has ruled unanimously that a warrant is needed to search or seize a person’s cell phone or mobile device to make sure it is not in violation of 4^th Amendment Rights of the U.S. Constitution.

The reasoning behind the decision in recent cases is that cell phone, in particular smartphones are capable of holding a vast quantity of diverse digital data. This coupled with the fact that most have internet access, makes a cell phone a mini-computer.

The court held that seizing a cell phone with a substantial amount of personal information about a person and their daily lives, requires a higher degree of privacy protection.

Arizona court decisions have been consistent with this ruling, and limited searches pertaining to a suspect’s cell phone.

While most other objects can be searched or seized incidental to an arrest, that is not the case for cell phones.

A few exceptions to the warrant requirement that would generally apply to other objects, do not apply to cell phones.

For example, the U.S. Supreme Court ruled that the otherwise general exception of fear of destruction or loss of evidence, or imminent harm to police does not apply to digital data.

Thus, in general a warrant with “probable cause” is needed to search and seize a person’s cell phone.

The U.S. Supreme Court held that examining the phone itself is different from cell phone and GPS or location tracking.

In one Federal Appeals Court case, United States v. Davis in 2015, the court ruled that cell phone location tracking of a person suspected of committing a crime was not in violation of the suspects 4th Amendment rights.

That case was appealed to the U.S. Supreme Court. But the U.S. Supreme Court rejected hearing arguments in that case. Without a decision by the highest court, the lower Federal Appeal Court rulings stand, and may be cited for consideration as precedent.

Arizona courts have ruled that GPS and location tracking by law enforcement agencies was in the in the best interest of public safety. Therefore, police may still track cell phone location for if they suspect criminal activity.

New and pending litigation exists in Arizona and throughout the country challenging issues surrounding cell phone location tracking.

Cell phone searches and privacy rights will continue to be a topic of debate, with litigation and challenge of existing laws due to public outcry and the continued advancements in technology.

A Closer Look at Cell Phone and Mobile Device Forensics

“In Plain English”

Scott Greene, Senior Technology Forensics Examiner shares a closer look at what constitutes digital evidence that may be found when a cell phone is examined:

“The mobile device and its records hold material evidence about the user’s involvement in a crime, if it is properly captured.

Once police have lawful access to the phone, it will be examined by police or independent investigator on their behalf.

Cell phones and in particular smart phones are capable of storing a vast amount of data which can prove to be of interest to police in a criminal investigation.

Smart phones are usually capable of storing user’s contacts, photos, calendars, notes, text messages, multimedia messages, videos, internet browsing history, E-mail communications, and social network communications.

In some cases the mobile device’s history may reveal the particular cellular tower that covered the communication.

If a cell phone was involved in a crime, police are also interested in obtaining the carrier records. It is common practice for police to request these.

The records may validate what was found on the cell phone as well as information the carrier has which may not be on the phone.

This information usually includes:

• Whether the call was originated by the cell phone

• The quantity of data downloaded

• Text messaging history such as date and time of the text message as well as the phone numbers which were sending and receiving text messages

• Plan codes

• Cellular tower number and GPS location for the cellular tower(s) used for the call, text or data exchange

For cell phones the carrier may provide the following:

• Connection date and time
• Call duration
• Number dialed
• Originating phone number *
• Cell phone serial numbers *
• Terminating phone number if the original was changed *

The Carrier may provide this (*) data for text messaging.

Archives and backup files of data contained in the phone may be found on the Internet or a local computer. These files may contain data which was deleted between the time of the backup and when the phone was seized and examined.

To make sure the digital data is available on the cell phone, police are encouraged to have the cell phone examined as soon as possible, to assure the digital data is still on it.”

Scott Greene is a Senior Technology Forensics Examiner at Evidence Solutions, INC.

Criminal Defense Attorney for Felony Drug Crimes Phoenix AZ

“Prepared to Defend” – James E. Novak, DUI & Criminal Defense Attorney

This case illustrates the importance of retaining a criminal defense attorney to protect your rights and defend your charges if you have been accused of a crime.

All felony convictions call for at least one year in prison, as well as other harsh consequences that will jeopardize your future and freedom.

If you are charged with a drug crime, including offenses related to wire and electronic communications, consult James E. Novak, experienced drug crimes defense attorney in Tempe, Arizona.

James Novak, experienced DUI and Criminal Defense Attorney, is a former prosecutor and highly skilled trial lawyer. If retained, he can provide you with a strong defense for your charges.

The Law Office of James Novak offers a free initial consultation for active criminal charges in Phoenix, Mesa, Tempe, Chandler, Gilbert, and Scottsdale, Arizona.

You can contact or call The Law Office of James Novak, (480) 413-1499 and speak with James Novak for your free and confidential initial consultation.

Additional Resources:

• A.R.S. § 13-3417(A) (Use of Wire or Electronic Communications)
• A.R.S. 13-3401 (Drug Definitions)
• A.R.S. § 13-1004 (Facilitation)
• A.R.S. § 13-1003 (Conspiracy)
• Requirements and Exceptions to Lawful Search Warrants in Arizona
• National Library of Medicine – National Institute of Health
• Drug War Facts

Other Related Articles from this Award Winning Blog:

• When Police can Take Your Blood Test without a Warrant
• Why Good Juries Reach Bad Verdicts
• Violations of “Search and Seizure” Laws: How they Impact Prosecution
• U.S. Supreme Court Rules No Warrant Needed To Collect DNA If Arrested,
• Yes, You Have Constitutional Rights At An Arizona Checkpoint
• New Technology enables Police to obtain a Search Warrant within Minutes

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

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

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

more First Responders Granted Authority to Administer Narcan

Currently, emergency medical technicians (EMT) are classified in four categories, each of which can only administer certain medications within its scope of practice. At present, only those certified above the initial EMT certification are authorized to administer naloxone hydrochloride to someone believed to be overdosing.

The new law allows for more trained emergency medical technicians , police, peace officers, and other first responders to administer opiate antagonists properly trained to administer a life-saving injection of an opiate antagonist to a victim in an attempt to reverse the overdose. Such injections have proven highly effective in reversing opiate overdoses such as heroin.

The opiate antagonist often used in heroin overdoses is Narcan (Brand name) or Naloxone (generic name). The Food and Drug Administration (FDA) recently approved use of “Evizo” an injector that is utilized by first responders to administer the drug to administer the drug.

Narcan has been successful in many cases in reviving a person, who otherwise would not have survived without the injection. However, immediate administration of the drug is critical to its effectiveness. Often times, police are first responders are to the scene of an overdose, and it was too late for the drug to be administered before the victim to get emergency medical treatment.

In the case of deadly overdoses, minutes and seconds can mean the difference between, life and death. Thus, expanding the authority and training more first responders such as police and other categories of emergency medical technicians was crucial.

Opponents of the First Responder Bill AZ 2489

Not everyone was enthusiastic about the new law. Opponents of the bill felt it would encourage drug abuse, increase medical costs; and increase costs for training and equipping first responders. Proponents of the bill argued that saving lives, far outweighed any proven or economic advantages of the new law.

Training First Responders in the Administration of Narcan

The new law calls upon the Arizona Department of Health Services (ADHS) to develop the training and certification standards for EMTs; to develop a training program for EMTs and peace officers in the detection of an opiate overdose; and when necessary to administer the opiate antagonists as a countermeasure.

One of the opiate antagonists that is administered to reverse the adverse effects of opiate overdose is naloxone hydrochloride, better known by its brand name Narcan. The opiate antagonist works by blocking heroin’s absorption into cells, putting the person who is overdosing into immediate withdrawal.

Immunities for Civil and Criminal Liability of First Responders

The new law provides exemptions from criminal, professional, and civil liability, for physicians and nurses who issue standing orders for naloxone hydrochloride or other opiate antagonists, additional EMTs, police or peace officers who are first responders to administer it the drug.

Trained and qualified first responders are immune from both professional liability and criminal prosecution for any decisions, acts, omissions, or injuries that result as long as they use reasonable care in good faith, except in cases of wanton or willful neglect.

Entities Not Granted Immunity

While the bill exempts EMTs, police officers, and doctors who try to help someone who is overdosing, some argue that the bill falls short of recognizing other potential first responders, and overdose response issues. For Example:

• The new law does not allow for training, or authority of family members, or recognize them as first responders to administer a life-saving dose of naloxone hydrochloride to a loved one whom they know abuses heroin, since family members are often the first responders.

• Immediately after the life-saving dose is administered a person can go into withdrawal and require immediate medical care, with no provisions in place for this scenario.

• The bill does not provide exemption from criminal liability for family members or witnesses who observe an overdose. Witnesses often fail to call the police or delay calling when they observe a heroin overdose because they fear they too will be arrested and prosecuted for drug possession or another drug crime.

However, a number of these issues are being addressed in other types of legislation mounting in states across the USA. They are being called #911 Good Samaritan Laws.

When faced with the decision of whether or not to call #911 to seek emergency medical treatment for an overdose, or as a witness to an overdose, you should make the call. The new Arizona law allows police and other first responders to administer an emergency lifesaving drug.

An experienced drug crimes attorney can protect your rights, and provide a strong defense for the charges if you are arrested or prosecuted. But the victim of a deadly overdose does not get a second chance when only minutes or seconds stand between life and death.

Good Samaritan Laws

Laws protecting witnesses, who seek help for someone who has overdosed, are often referred to as #911 Google Samaritan Laws.

Some states have enacted such #911 Good Samaritan law that immunizes those trying to help a person who is overdosing by calling 911. Unfortunately however, Arizona does not have these types of laws in place yet.

Currently 21 states have such Good Samaritan Laws in place. These types of laws are understandably misunderstood. Opponents of these laws argue that such laws protect people from being arrested or prosecuted for drug crimes such as sales, trafficking, distribution, or manufacturing of illegal drugs. But that is a misconception.

The Google Samaritan laws and principles are in place to protect only the caller or person seeking medical attention, the victim who has overdosed on drugs or alcohol in the case of personal use and possession.

Criminal Defense for Heroin and Drug Crimes in Mesa AZ

When faced with the decision of whether or not to call #911 to seek emergency medical treatment for an overdose, or as a witness to an overdose, you should make the call. The new Arizona law that now allows police and other first responders to administer an emergency lifesaving drug.

An experienced drug crimes attorney can protect your rights, and provide a strong defense for the charges if you are arrested or prosecuted. But the victim of a deadly overdose does not get a second chance when only minutes or seconds stand between life and death.

As an extremely dangerous and addictive drug, heroin is categorized as a Schedule I drug in Arizona, which means that if you are caught possessing it, you can be tried for Class 4 felony possession. The punishment if you are tried for a Class 4 felony is at least two years and six months in jail. A felony conviction can follow you around for life, affecting your ability to get into schools, obtain professional licenses, secure housing, or get a job.

However, the court has the discretion to turn the felony charge into a Class 1 misdemeanor if you haven’t previously been convicted of a felony. If you’re charged with misdemeanor possession of heroin, the fine will be the greater of $1,000 or three times the value of the heroin. An experienced criminal defense attorney can raise the strongest possible defenses, both procedural and substantive, to prevent a felony conviction or obtain a reduction in the charges.

If you are charged or arrested for heroin possession, you should consult with an experienced Phoenix felony defense attorney to discuss your matter and options for defense as soon as reasonably possible. James Novak is a highly skilled former prosecutor who is now a criminal defense attorney. Contact James Novak at 480-413-1499 for a confidential and free initial consultation, if you face criminal charges in Phoenix, Tempe, Mesa, Chandler, Gilbert, or other surrounding East Valley Cities.

Additional Resources:

• Bill HB2489: Arizona State Legislature
• Arizona Department of Health Services
• National Centers for Disease Control: Drug Overdose Facts
• Arizona Drug Courts

Related Articles:

• Facing Down A Giant: The Prescription Drug Abuse Epidemic

Related Articles of Interest:

• U.S. Supreme Court Tips Scale to 4th Amendment Rights at Police Stops Proportions
• Arizona Court of Appeals Marijuana Trafficking Case Study: Part II of II – Suspects 40 Minute Detention for K-9 Drug Unit Not Unreasonable
• Arizona Court of Appeals: Officer had Reasonable Suspicion to Detain based on Totality of Circumstances: Part I of II: Case Study

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

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

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

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

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

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

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

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

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

Case #1 Overview

The incident arose from a search warrant requested by police officers after they reported smelling a strong odor of marijuana from a multi-unit warehouse.

The judge issued the warrant, finding that the odor served as probable cause for search.

Prior to Arizona Medical Marijuana Act (AMMA) which passed in 2010, the courts recognized that the smell of marijuana indicated the probability of criminal activity, because Marijuana in any form was unlawful.

When the police arrived at the warehouse and entered, they found it empty.

So they requested a second warrant, to enter another building nearby based on the odor of Marijuana traced to that building.

The magistrate granted another warrant to search the second building.

In the second warehouse, they found dozens of marijuana plants and growing equipment.

They discovered that that young child and defendant both resided there.

The defendant was charged with child abuse, possession of marijuana for sale, production of marijuana, and possession of drug paraphernalia.

The defendant filed a motion to suppress the evidence on the grounds that the marijuana scent was not enough to establish probable cause of criminal activity.

The trial court denied the motion, finding that the AMMA didn’t affect probable cause determinations.

The defendant was convicted of the charge, and sentenced to concurrent prison terms, the longest of which imposed a 3.5 year term.

The defendant appealed his convictions arguing that the AMMA should change the probable cause analysis with respect to the smell of marijuana.

One effect of the AMMA was that Marijuana may be lawful in other places now, for example, where it’s cultivated.

As a result, it is in both possession as well as other places where Marijuana is considered lawful.

And other circumstances now exists besides “mere possession itself” where criminal conduct v. non-criminal activity must be determined.

Based on this rationale, the Court ruled that multiple circumstances should be considered along with the marijuana odor factor, in order to determine if police have sufficient probable cause for search.

In its decision, the appellate court explained that probable cause exists when a reasonably prudent person, based on the facts known to the police officer, would be justified in concluding that the items sought are related to criminal activity and will be found in a particular location.

The Court held that the odor of Marijuana does not necessarily mean that criminal activity has happened or will happen.

Lawful operations that take place under the AMMA such as medical marijuana dispensaries will cause the buildings in which they occur to smell.

Accordingly, the court found that the smell of marijuana is now insufficient by itself to provide probable cause for a search warrant for a building.

There must be some circumstantial evidence of criminal activity beyond the mere smell of marijuana in order to find probable cause.

The court expressly limited the holding since it was the odor of Marijuana from a building that raised suspicion that a crime was in process, and not actions of a suspect.

The Appeals Court did not address the issue of whether the smell itself constituted reasonable suspicion to conduct an investigative stop or detention.

The Justices noted that despite the protections under the AMMA, smoking Marijuana in or in an automobile can still suggest a crime has occurred as prohibited; as well as smoking Marijuana in public prohibited under A.R.S. 36-2802.

Therefore the smell of marijuana smoke in public places or from a vehicle may still give rise to probable cause and reasonable suspicion for investigation, depending on a reasonable assessment of the circumstances.

Arizona Appeals Court Ruling – Case #2 (No. 1 CA-CR 14-0072)

The second case opinion filed July 23, 2015, heard in Arizona Court of Appeals Division One, was an appeal for misdemeanor possession or use of marijuana.

During the proceeding in Maricopa County Superior Court, the defendant’s motion to dismiss a warrantless search of his vehicle was denied, resulting in the conviction.

Case #2 Overview

The Appeals Court found no error in denying the suppression of the evidence and affirmed the conviction.

This incident arose after police on routine patrol noticed a vehicle had window tinting darkness in violation of Arizona window tinting laws.

When they approached the vehicle they smelled a strong odor of Marijuana coming from inside of the vehicle.

The officer asked the defendant to step out of the vehicle. The defendant complied without incident.

The police officer then searched the vehicle, and noticed an empty prescription medication bottle in the center console. He opened it and smelled a strong odor of burnt marijuana.

Under the driver’s seat the officer then found what was described as a “marble size’ amount of unburnt marijuana.

Police arrested the suspect. Following the arrest, the suspect’s Miranda Rights were read.

At that point the suspect admitted that the pill bottle that contained the burnt marijuana belonged to him.

During the lower court proceedings the defendant argued that automobile exception to the search based on “plain smell of marijuana” doctrine no longer authorizes police to search vehicles, due to the enactment of Arizona Medical Marijuana Act (AMMA) A.R. S. 36-2801.

The Superior Court denied this argument citing the Plain Smell doctrine.

“Plain smell” standard adopted in State of Arizona v. Harrison, which holds that the AMMA does not eliminate the “Plain Smell” Doctrine.

The Court also rejected the argument by the defendant that under protections of the AMMA Police must presume that any odor of marijuana they smell is lawful, and no longer an incriminating characteristic to establish probable cause of a crime.

The Appeals Court recognized that under the AMMA laws of Arizona A.R.S 36- 2811 a registered and qualifying patient is not subject to arrest, prosecution, or penalties for use as long as are using in accordance with the provisions of the AMMA law.

The Justices also noted the impacts that the Medical Marijuana Law does not have:

• The AMMA does not immunize suspects from being subject to searches under the Plain Smell Doctrine.

• The AMMA does not disqualify the plain smell of marijuana to be used as sufficient evidence to establish probable cause for search in Arizona.

• The AMMA does decriminalize marijuana in the State.

• The AMMA does not reduce the significance of Marijuana as an indicator of criminal activity.

The Appeals court held that the defendant did not show how the AMMA would extend immunities to him in this case.

The Court reviewed the “Plain Smell” Doctrine adopted by Arizona, that includes a three prong test. The doctrine makes the warrantless searches legal under the doctrine when the following criteria is met:

• The officer is lawfully in a position to smell the evidence;
• Incriminating character of the evidence is immediately apparent; and
• The officer had lawful right of access to the evidence Arizona Baggett, 2013.

The Justices noted that there was no challenge to the fact that the officer was lawfully in a position to smell the marijuana, possessed lawful access at that time, or that the marijuana odor constituted sufficient probable cause that a crime was in progress or had been committed.

This information verifying that the three three-prong-test standards were met during lower court proceedings.

Thus, the Appeals court ruled that the Superior Court did not error, in denying the motion to suppress.

Therefore the decision of the lower court to deny the motion to suppress, and the convictions were affirmed.

Analysis and Discussion: Comparison of Two Contrasting Verdicts; and Marijuana Odor as Probable Cause

The two Appeals Courts did, in fact, have conflicting opinions in one primary challenge in both cases.

That was whether or not the AMMA effects or dismisses marijuana Smell to be used as a determinate for probable cause.

(1) In the first case, the Appeals Court ruled that the AMMA did impact the plain smell doctrine and whether or not it could be used to determine probable cause.

The first Appeals Court ruled in its case, that under the AMMA where Medical Marijuana is legal, there is potential to smell Marijuana in a number of places such where it is lawful such as where it is being cultivated, stored, or sold. This was not the case before AMMA enactment.

In the first case the source of smell was a warehouse, which narrowed the ruling to the context of the inside of a building.

Use of Marijuana in a vehicle, or in public is prohibited under AMMA and Arizona Law. Use of a Marijuana in a vehicle is still suggestive of criminal activity such as impaired driving.

These factors were paramount because to the Appeals Court decision to vacate the convictions.

(2) In the second case the Appeals Court rejected the idea that the AMMA impacted the “Plain Smell Doctrine” when determining probable cause for search; and that the Arizona Medical Marijuana Act does not immunize suspects from being subject to “Plain Smell” of Marijuana being sufficient for probable cause to search. It only provides protections from arrest prosecution and any penalties.

Further, the source of the Marijuana smell was a vehicle, reinforcing their decision affirm the convictions since use in a vehicle is prohibited under AMMA; Arizona Statute; and is still suggestive of criminal activity.

Marijuana smoke on a public road to still constitute reasonable suspicion or probable cause in the context of a vehicle search. There are still some points that may need clarification.

The fundamental circumstances in the two cases are different, meaning it is unlikely that any changes in police policy related to Marijuana odor evidence at this point.

If in the first case, the odor of the marijuana had originated from an automobile, or while the suspect was in public, then a conflict in verdicts would have existed in Arizona case law.

It seems only a matter of time before these or other cases involving Probable Cause for Search based on Plain Smell of Marijuana cases end up in the Arizona Supreme Court.

Arizona and all other states progressing in Marijuana passage in some form, can expect repetitive ad continuing disputes that impact them at a state-wide level.

The state will continue to progress in setting forth laws or precedent guidelines that address the impacts the AMMA will have on reasonable suspicion or probable cause determinations in the future.

Considering the fact that the Federal laws still prohibit Marijuana under the Federal Controlled Substances Act, it is unlikely that they would agree to hear State Court disputes involving Marijuana.

So for now and unless the cases are heard in the Arizona Supreme Court, the Appeals Court decisions will be looked to as precedent cases. And each case will need to be reviewed on a case by case basis.

Criminal Defense for Marijuana Crimes in Mesa AZ

Marijuana and other Drug crimes in Arizona are very serious. Even if a person is a qualified Medical Marijuana user, they may also be exposed to criminal charges if they are accused of violating the AMMA laws.

If you face Marijuana or any of drug charges it is crucial that you consult a criminal defense attorney to discuss your defense options and retain them for your charges. There may be defenses that can be used to challenge the charges.

In the cases above challenges were raised in the following areas:

1) Constitutional – Fourth Amendment Rights Violations for unlawful search and seizure;

2) Evidentiary – Motions to dismiss evidence based on no probable cause for search; and

3) Statutory Challenges – Effect of AMMA on “Plain Smell” of Marijuana Doctrine to determine probable cause.

To protect your rights, and avoid self-incrimination, you should not make any statements to police regarding the charges until you speak with an experienced criminal defense attorney.

James E. Novak, Drug Crimes Defense Attorney, is a former prosecutor, experience trial lawyer, and dedicated drug defense attorney. If retained he will provide you with a strong defense for your charges.

James Novak, of The Law Office of James 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. § 36-2801 (Arizona Medical Marijuana Act)
• Arizona 13-3925
• 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, 2014more

The exceptions include situations where “exigent circumstances” exist.

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

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

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

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

The Incident

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

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

The paramedics were concerned about contamination, based on the defendant’s statements and called the Fire Department to the scene.

The Fire Department ordered the defendant to be “rinsed off.” The man cooperated and was transported to the hospital for further examination.

After the suspect was taken to the medical facility, the firefighter, and police officer decided to enter he home to gather information about the mercury, with the belief that medical personnel may need this information for the man’s treatment.

The officer also reported that they felt it was necessary to enter in order to find out what they “were actually dealing with.”

After entering the residence, the officer detected an odor of marijuana, which he traced to the utility room. There the officer discovered several marijuana plants.

The officer then left and returned to the home with a valid search warrant.

Upon return, the officer re-entered the home and seized the Marijuana.

The defendant was then charged with production of marijuana and possession of drug paraphernalia.

Even though possession of mercury is not unlawful, no mercury was found.

However, the officer saw “indications” of it in the hallway on the floor, which did not pose a threat. The Fire Department simply concluded just needed to be cleaned up.

Court Proceedings and Opinions

The trial court determined there were “exigent circumstances” for the warrantless search, admitted the marijuana as evidence, and ultimately found the defendant guilty.

The defendant appealed on the grounds that the motion to suppress the evidence should have been granted, and not denied.

The Court of Appeals agreed that the warrantless search was not justified and did not fall within any of the exceptions to a warrantless search of a suspect’s home.

The Appeals court reversed the lower court’s decision and held that no exceptions applied to the incident that justified a warrantless search and seizure into the home.

The State prosecution then asked the Arizona Supreme Court to review the issue of whether the “community caretaking exception” applied.

The AZ Supreme Court held that neither exception of exigent circumstances or emergency aid applied to this case, and the warrantless entry into the home was lawful.

The court explained that although police were concerned about the large quantity of mercury that the suspect claimed was in the house, mercury possession isn’t unlawful.

There was no evidence that the presence of mercury presented an immediate threat. In order for exigent circumstances to exist, the police would have to have had probable cause that there was criminal activity in the home, not just the possession of mercury.

The Court acknowledged the police officers’ various functions in the community that involve caretaking and civil services.

But that this does not extend the police officers exemptions from the warrant requirement simply because they are engaged in those functions.

The Court differentiated an earlier case in which community caretaking applied as an exception on the grounds that it involved an automobile, rather than a house.

Citing precedent cases involving search and seizure controversies, the Arizona Supreme Court held that there is a greater expectation of privacy in a house than an automobile. Therefore, the community caretaking exception does not apply to homes.

Specifically, the Court explained that it reached the conclusion it did because the Arizona Constitution Article 2, § 8 more explicitly protects homes than the federal constitution does.

The Court did not explicitly consider the complications presented by A.R.S. 36-603. Under that Arizona law, when a county board of health or local health department in finds it necessary to enter a building in order to prevent or remove a nuisance and is refused entrance, an officer of the department can make a complaint to the justice of the peace.

Under those circumstances, the justice of the peace may then issue a warrant directing the peace officer to destroy or remove the nuisance during daylight hours.

However, based on this ruling, any evidence of criminal activity obtained during such an entry would not be admissible.

Arizona Privacy Rights

“The Arizona Constitution ensures that persons shall not be disturbed in their private affairs or their home invaded without lawful authority”.

In this case, the Arizona Supreme Court analyzed the language under the Arizona Constitution, specifically those involving Privacy Rights.

Article II section 8 of the Arizona Constitution reads:

“No person shall be disturbed in his private affairs, or his home invaded, without authority of law.”

The Conclusions of the AZ Supreme Court were that Arizona’s affords more protections in its specific language than the US Constitution.

US Constitution Privacy Rights

The US Constitution’s Fourth Amendment relating to privacy rights extends the following protections:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized”.

Whereby, the Federal law limits the protections for persons to be secure in their houses, and against unlawful search and seizures.

In contrast, the Arizona Constitution ensures that persons shall not be disturbed in their private affairs or their home invaded without lawful authority.

Thus, holding that the Arizona Constitution affords greater protections in some circumstances citing Arizona v. Bolt. Community Caretaking Doctrine – Why it did not Apply

The “Community Caretaking Doctrine” is one exception to the search warrant requirement.

It enables officers to conduct warrantless searches of a vehicle under particular circumstances.

This exception to a warrant stems from a Federal Case ruling over 40 years ago.

And although controversial to this day, it has been recognized by many state courts as a valid exception to the US Constitution’s Fourth Amendment related to search and seizures.

The Doctrine stemmed from a case involving a police officer who was arrested for drunk driving. During the DUI stop the driver fell into a coma.

The officer that stopped him searched the vehicle to find the police officer’s gun to remove it from the vehicle.

During the search the police found blood covered belongs including a towel, floor mat, and night stick.

Charges for first-degree murder were subsequently brought.

The defendant challenged admittance of the evidence in trial because the officer did not have a search warrant and did not provide consent for the vehicle to be searched.

The US Supreme Court held that the search did not require a warrant and was admissible since the investigative officer was performing a community caretaking function.

This after police searched inside the vehicle and trunk to find the impaired police officer’s gun.

The Arizona Supreme Court decided that the State prosecution was not persuasive in arguing that the community caretaking exception should apply to homes as well as vehicles.

The AZ Supreme Court held that the adverse consequence of extending this doctrine to apply to home searches would significantly reduce privacy protections currently afforded by the Arizona Constitution.

The Justices pointed out that this does not prohibit current warrantless exceptions which include exigent circumstances, and emergencies where immediate attention is needed.

The Arizona Supreme Court also held that the community caretaking exception applies to auto searches only and not to homes.

Marijuana Laws in Arizona

Though the Court’s ruling in this case provides a crucial protection in home search and seizure cases, it does not prevent police from obtaining a warrant to search a person’s residence if they have probable cause to do so.

Production and possession of Marijuana is illegal in Arizona, outside of the Medical Marijuana laws.

Violations are taken very seriously, and most Marijuana offenses are classified as felonies. Penalties for Felonies in Arizona call for prison terms.

If a person is found to be in possession of less than two pounds of marijuana, they will be exposed to our months to two years in prison and a felony record.

If the police obtained the evidence illegally, however, your attorney may be able to get the charges dismissed.

However, if an exception to the warrant rule does not exist in a criminal case involving the discovery of marijuana in your home, as in the above-described case, your attorney will have strong grounds to ask that the evidence be suppressed.

Criminal Defense Attorney Mesa AZ

It is important in any criminal or DUI case to retain an effective legal advocate who will protect your rights and defend your charges.

If you are charged or arrested for marijuana possession or another drug crime, you should consult with an experienced Phoenix felony defense attorney to discuss your matter and your options for a defense as soon as reasonably possible.

James Novak is a highly skilled former prosecutor who is now a criminal defense attorney. Contact James Novak at 480-413-1499 for a confidential and free initial consultation if you face active criminal charges in Phoenix, Tempe, Mesa, Chandler, Gilbert, Scottsdale, or other surrounding East Valley Cities within Maricopa County.

Additional Resources

• Arizona 13-3925
• Requirements and Exceptions to Lawful Search Warrants in Arizona
• Arizona 13-3912

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

Law enforcement officers recently conducted the biggest methamphetamine bust in Maricopa County’s history. Sheriffs investigated for several months before locating 18 bricks of meth (51 pounds) worth almost $1 million. The twenty-six year old suspect who possessed the bricks was arrested for meth possession and other felony charges. As outlined below, he may face serious prison time, depending on his prior felony record and other factors.

Earlier this year, Phoenix AZ participated in “Operation Justice V” sponsored by the U.S. Marshall. In one week 231 persons without outstanding felony warrants were arrested. A large number of those were wanted for “Dangerous Drug” offenses including Meth crimes.

The possession and sale of meth is a growing illegal drug market in Arizona, and some believe it has reached crisis proportions, now affecting teenagers as well. Even though Arizona’s teenage meth use has declined in recent years, Arizona remains among the top 10 states for teen meth use.

Meth is highly addictive and affects the neurotransmitter dopamine. It can be smoked, injected or snorted. Users experience a rush as well as increased energy, reduced appetite, and increased respiration. There is a danger of violent behavior, irritability or psychosis. Importantly, long-term use of methamphetamines can cause brain damage that is akin to Alzheimer’s.

Due to the addictive nature of Methamphetamines and other Dangerous Drugs, they have been found to lead other serious crimes by users, and dealers that include theft, burglary, assault, sexual assault, aggravated assault, home invasions, even murder.

Meth is classified in the Arizona Revised Statutes as a “dangerous drug.” Other “dangerous drugs” include LSD, ecstasy, mushrooms, mescaline and GHB. Willful possession of a dangerous drug can subject anyone who is convicted to serious punishments at the sentencing stage.

Possession of methamphetamine is a Class 4 felony, until someone possesses more than 9 grams, as in the case described above. Then it is charged as a Class 2 felony because it is assumed to be possession for sale. It is important to note that possession of methamphetamine cannot be charged simply as a misdemeanor, even if you have no priors.

Penalties are increased substantially for possession of large quantities of meth. If someone possesses more than 9 grams and it is a first offense, the presumption is that it is for sale. In that case, the minimum imprisonment sentence is five years, the presumptive sentence is 10 years and the maximum sentence is 15 years. However, if someone possesses more than 9 grams and it is not a first offense, the increase in sentencing jumps dramatically. A minimum imprisonment sentence for possession for sale of meth on a second offense is 10 years.

First time drug offenders are eligible for a deferred prosecution program in which they participate in probation during which the offender is subject to drug testing among other things. If they do not meet conditions of their probation, they may face jail time.

The Arizona Revised Statutes permit mitigation or enhancement of a sentence for reasons such as prior criminal convictions, the amount of the drug, and more. If charged with a Class 2 felony and aggravating factors, a defendant can face over 12 years in prison.

The sentencing laws are even harsher for those convicted of manufacturing methamphetamine. In response to the meth crisis, in 2000, Arizona’s child abuse law was expanded to include a presumption of endangerment when children or vulnerable adults are found at meth labs.

Additional Resources:

• About Meth (Arizona Attorney General)
• Arizona Drugs Defined Under Criminal Code
• Mesa AZ Police Department

If you are arrested for a methamphetamine-related offense in Mesa, AZ or surrounding cities within Maricopa County you face the possibility of harsh consequences. You should retain an attorney knowledgeable about these types of cases to defend and protect your rights. Contact The Law Office of James Novak at 480-413-1499 for a free consultation.

More Blogs
Arizona’s Medical Marijuana Law Stands Ground, Phoenix DUI Lawyer Blog, June 4, 2013
Marijuana DUI: The Impact of Montgomery v. Harris, Phoenix DUI Lawyer Blog, March 13, 2013

Police Departments around the Country have begun using TruNarc, a mobile device used for drug testing. The device can rapidly detect single or multiple compounds and drugs, including those more difficult to detect such as “bath salts”, within seconds. For the last 50 years police have used lab kits to test for narcotics or illegal drugs. In effect TruNarc in said to speed up the drug identification process, allowing police to be more efficient with their time, and decrease turnaround time in drug cases.

How it Works

The device has a laser which is pointed directly at the suspicious drug sample. It then generates a distinct spectrum, similar to a finger print. It is then analyzed for identification in the device’s drug library contained the unit. It can be easily updated for new dangerous or designer drugs. Records can be automatically produced, to include the name of the drug, time and date stamps and anything else the police department wishes to program into it.

Industry Recognition

The core technology used for the Thermo Scientific device uses “Raman spectroscopy”, which is recognized as an analytical tool by the “Scientific Working Group for the Analysis of Seized Drugs (SWGDRU). TruNarc’s results were compared to the same drug samples as certified laboratories. The conclusions were that TrucNarc had produced 80% – 100% positive results, with “0” false positive results.

Pros

• Below are 7 items in favor of TruNarc Testing Device:
• Device is lightweight and easy to use;
• Immediate results; Eliminates need for backlogged and costly lab processing
• Detects compounded and new “designer”, bath salts and synthetic drugs;
• Can be used in addition to drug testing kit for presumptive testing;
• Nonintrusive. The test does not require contact;
• Reduces time for Criminal Case Resolutions:
• Police K-9 Dog Drug Screeners costs between $20,000.00 and $$29,000.00 to train. The cost of the device is equal or less for TruNarc $20,000.00 currently.

Cons

Below are 7 items that oppose TruNarc Technology for drug testing:

• Costly: $20,000.00 per device;
• Lack of background science, experience or reported statistics of use in the Field by police;
• Police officers would need to be trained to operate, minister, and maintain it;
• If adopted by the states, it will face much challenge by experts and criminal defense attorney, regarding administration, accuracy, validity, maintenance, and operation of the device (similar to the challenges that breathalyzers presented.);
• Technology may not prove to serve as an effective substitute for full lab analysis by a certified laboratory and trained lab professional;
• Judges around the country have yet to decide if the test results from TruNarc can be admissible in trial.
• No case law or documented challenges have been argued against it for drug charges involving the device.

Resources: http://goo.gl/76gqM

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Law Office of Jame Novak 4500 S. Lakeshore Drive Tempe AZ 85282 (480) 413-1499 www.Arizonacriminaldefenselawyer.com www.novakazlaw.com Arizona DUI, DWI, Drunk Driving & Criminal Defense Firm Serving Tempe, Mesa, Chandler, Gilbert, Mesa, Gilbert & Scottsdale AZ Free Consultation!

Drug Sentencing Guidelines

Under Arizona Drug laws A.R.S. 13-3419: Arizona has separate sentencing ranges for convictions into two categories: 1) The illegal drug possession charges involved a quantity below the “Threshold Amount”; 2) Illegal drug possession charges that equal or exceed the “Threshold Amount”.

Below Statutory Threshold Amount – Drug Possession with a quantity that falls below the statutory Threshold Amount may be charged as a Class 5 to Class 2 with prison sentencing of .05 to 12.5 years;

Equal or Exceeding Statutory Threshold Amounts – Drug Possession convictions involving quantities that equal or exceed the the statutory Threshold Amount may be charged as a Class 5 to Class 2 with prison sentencing .05 to 15 + years.

The Threshold Amount is the amount specified by law under A.R.S.13-3401.36 for a the quantity of a certain drug. The higher the amount over the Threshold, the more severe the Sentencing and penalties. Additional penalties include fines, fees, community service, drug and alcohol counseling or treatment, and other fines deemed necessary by the court.

Sentencing Factors

Other factors besides quantity the court will consider in sentencing if convicted include:

• First drug offense verses repeat offense;
• Prior criminal history, if any;
• Purpose of the drug in a suspects possession (personal use verses sales)
• Other charges brought at the same time (violent or dangerous crimes)
• Mitigating or Aggravating factors
• Classification of drug (Marijuana, Narcotic, or Dangerous Drug)

Criminal Defense Lawyer for Drug Possession Phoenix, AZ If you face drug possession charges in Arizona, you should consult an experienced criminal lawyer regarding your matter. They will protect your rights and defend you through the criminal defense attorney. Drug crimes of any kind, may expose a person to incarceration, and other harsh penalties. There are often defenses that exist that can be used to challenge the evidence including the quantity of a drug a person is accused of possessing. Your attorney will make sure you are treated fairly; protect your rights, and defend your charges. In some cases they can help you avoid prison or jail sentencing; lower the charges; and or get the charges dismissed. Your chances of getting a favorable decision in your case, will increase significantly with retention of a private practice drug defense attorney.

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Law Office of James Novak 4500 S. Lakeshore Drive Tempe AZ 85282 (480) 413-1499 www.Arizonacriminaldefenselawyer.com www.novakazlaw.com Arizona DUI, DWI, Drunk Driving & Criminal Defense Firm Serving Tempe, Mesa, Chandler, Gilbert, Mesa, Gilbert & Scottsdale AZ Free Consultation! Call (480) 413-1499

Under Arizona Law A.R.S. 13-3401.6 the drug Methamphetamine or “Meth” is classified as a “Dangerous Drug”. A person may be guilty of a Dangerous Drug crime if they knowingly possessed any amount of Methamphetamine or “Meth” as defined under A.R.S. § 13-3407. Arizona Dangerous Drug Offense Law and Classifications

A.R.S. § 13-3407. Possession, use, administration, acquisition, sale, manufacture or transportation of dangerous drugs; classification:

A. A person shall not knowingly:

1. Possess or use a dangerous drug (Class 4 Felony):

2. Possess a dangerous drug for sale (Class 2 felony);

3. Possess equipment or chemicals, or both, for the purpose of manufacturing a dangerous drug (Class 2 Felony for Meth);

4. Manufacture a dangerous drug (Class 2 Felony);

5. Administer a dangerous drug to another person (Class 2 Felony);

6. Obtain or procure the administration of a dangerous drug by fraud, deceit, misrepresentation or subterfuge (Class 3 Felony);

7. Transport for sale, import or offer to transport for sale or import or sell, transfer or offer to sell or transfer a dangerous drug into Arizona. (Class 2 Felony)

A person may be convicted of Dangerous Drug possession if they knowingly possession any amount of Methamphetamine or “Meth”, for any purpose described above.

“Threshold Amount” – A.R.S. § 13-3401

Under Arizona Law A.R.S. § 13-3401. 36 (e) “Threshold Amount” means: means a weight, market value or other form of measurement of an unlawful substance. The specified Threshold Amount for methamphetamine is Nine grams. This includes methamphetamine in liquid suspension; or any combination of those unlawful substances listed under this law. If a person is found to have in their possession an amount that equals or exceeds the Statutory Threshold Limit, for a particular drug, they will be exposed to mandatory prison sentencing. The length of the prison terms a person will face increases based on the amount of the drug that exceeds the threshold limits for that drug.

Sentencing Guidelines for Meth, Dangerous Drug Crime Convictions

If a person is convicted of a methamphetamine or Meth crime, they may be exposed to harsh prison sentencing that can range from 2 to 15 years prison depending on the factors involved. Factors considered for sentencing include:

 Aggravating Factors;

 Mitigating Factors;

 Whether or not the defendant is over 18 years of age;

 Quantity of the substance;

 If the quantity exceeds the Statutory “Threshold Amount”;

 Whether or not the crime involved a “Dangerous offense”;

 Prior DUI or Criminal offense convictions;

 First time or repeat drug offense;

 If the circumstances caused physical injury to a minor under fifteen years of age ARS § 13-3407(A)(1).

Other penalties include large monetary fines, fees, assessments; mandatory counseling; community service, and other penalties.

Criminal Defense Attorney for Meth Charges, Phoenix AZ

Crimes involving any Dangerous Drug, particularly Meth crimes are very serious charges. All drug charges involving Meth crimes, if convicted, will expose a person to prison sentencing, exorbitant fines; and other harsh penalties. If you were arrested for any illegal drug charge you should consult an attorney who frequently defends drug charges in Phoenix AZ or Maricopa County. A good criminal attorney will make sure your rights are protected; defend your charges; and work to get the best possible outcome in your case. If the charges cannot be dismissed, your attorney will look for mitigating factors that will help get your sentencing reduced, so that it has the least adverse impact on your life as possible.

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Drug Possession Laws in Arizona

Convictions require “knowledge” of Possession. In order for the prosecution to convict a defendant for possession charges, they have the burden of proving that a defendant had “knowledge” that the illegal drugs were in their Possession. This is the case for any illegal drug including possession of Marijuana, Dangerous Drugs, Narcotics or any other illegal drugs as defined under A.R.S. 34 13-3401.

Arizona Drug Sentencing Ranges -multiple drug offense sentencing ranges: Most drug charges involve multiple offenses. For example, a person may be charged with Drug possession use; and drug paraphernalia possession. If the quantity of the drug falls below the statutory “Threshold Amount” under law for that drug, the sentencing ranges will be less severe than those exceeding the Threshold Amount”. For that reason, Arizona has two different sentencing ranges for possession below verses over the “Threshold Amounts”:

A. Below Statutory Threshold Amount – A.R.S.13-3419 (A)(1),(2)

• Second drug offenses – Class 2 = 3.0 to 3.5 years Class 3 = 1.8 to 8.7 years Class 4 = 1.1 to 3.7 years Class 5 = 0.5 to 2.5 years • Three + drug offenses – Class 2 = 4.0 to 12.5 years Class 3 = 1.8 to 8.7 years Class 4 = 1.1 to 3.7 years Class 5 = .5 to 2.5 years B. Equal or Exceeding Statutory Threshold Amounts A.R.S. 3419 (A)(3),(4)

• Second drug offenses – Class 2 = 3.0 to 12.5 years Class 3 = 1.8 to 8.7 years Class 4 = 1.1 to 3.7 years Class 5 = 0.5 to 2.5 years • Third + drug offenses – Class 2 = 4.0 to 15 years Class 3 = 2.5 to 1.2 years Class 4 = 1.5 to 6.2 years Class 5 = 0.75 to 5.0 years For sentencing ranges that apply to non-multiple, first offenses, and repetitive drug offenses, the Sentencing Ranges for Arizona General Sentencing Chart Citations will apply.

First-time offenders may be eligible for a Treatment Assessment Screening Center program (TASC) program. This is a diversion program with deferred sentencing. This is not an entitlement or guaranteed program. It may be offered to eligible defendants by request of defense as an alternative to incarceration for guilty of first time, less serious drug offenses. The defendant must meet certain criteria to qualify, and it must be approved by the judge, prosecution, TASC officials. An experienced drug defense attorney will attempt to qualify for the program, if the charges cannot be dismissed.

Personal Possession & Use of Drugs – A.R.S. 13-901.1

• Required Probation – Unless the person is also convicted of a violent offense defined in A.R.S. 36-2501, probation is required for persons convicted of possession or use of controlled substance or drug paraphernalia. Incarceration may not be imposed as an initial condition of probation for a first offense.

• For probation violation convictions resulting from committing any offense listed in A.R.S. 13-34 or 13-34.1 or violation of court ordered drug treatment plan, the person may be incarcerated upon reinstatement of probation.

• The person will be required to participate in a court ordered drug education or treatment plan, at their own expense. As a required condition of probation,

• For convictions of a second drug offense, a person may be incarcerated as a condition of their probation.

Criminal Defense Lawyer for Drug Possession Tempe AZ

If you face drug possession charges in Arizona, you should consult an experienced criminal defense attorney regarding your matter. They will protect your rights and defend you through the criminal justice process. Drug DUI charges have serious consequences if convicted. But they are not always justified. There are often defenses that exist that can be used to challenge the evidence that may lead to dismissal, or other favorable outcome in your case. Your chances of getting a good resolution in your case increase significantly with retention of a private practice criminal defense lawyer.

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Law Office of James Novak 4500 S. Lakeshore Drive Tempe AZ 85282 (480) 413-1499 www.Arizonacriminaldefenselawyer.com www.novakazlaw.com Arizona DUI, DWI, Drunk Driving & Criminal Defense Firm Serving Tempe, Mesa, Chandler, Gilbert, Mesa, Gilbert & Scottsdale AZ Free Consultation! Call (480) 413-1499