A frisk in the context of a law enforcement search is also known as a pat-down.

It is less intrusive than a full body search. The purpose of a frisk is to ensure an officer’s safety by confirming that a suspect encountered by police is not armed and dangerous.

The Cornell University of Law Legal Information Institute (LII) defines a pat-down search as one in which police pat-down a person’s outer clothing to search for concealed weapons.

When is a Police Frisk Constitutional?

Individuals are protected under the 4^th Amendment of the U.S. Constitution against unlawful search and seizures. This applies to frisk searches by police.

Both State (Arizona V. Serna, 2014) and Federal Courts (Terry v. Ohio, 1968) have held that in order for a frisk to be constitutional a two prong test must be met. Police can legally frisk a person they encounter when the following factors exist:

1. Police have a reasonable suspicion that a person is engaged in criminal activity; and
2. Police have a reasonable belief that the person is armed and dangerous.

Reasonable suspicion must be based on facts that are individualized, objective, and can be clearly articulated. Police need more than just a hunch or a guess that a person is engaged, or about to commit a crime.

Reasonable suspicion requires less proof than probable cause, the standard that must be met in order to arrest someone.

Courts have consistently held that when determining whether or not police have reasonable suspicion of criminal activity, that totality of the circumstances surrounding the incident must be considered.

Can Police Frisk Me Because I live in a High-Crime Neighborhood?

No. Arizona police cannot frisk you on the sole basis that they encountered you in a high-crime area. More factors would need to exist to give rise to reasonable suspicion of criminal conduct, and to justify a frisk search. The factors that create reasonable suspicion should be particular to the individual and within that person’s control. The general surroundings or environment would not within your control, or particular to your conduct.

Overview of Arizona Supreme Court Opinion

The Arizona Supreme Court recently ruled on a case in which they considered factors that create reasonable suspicion needed to justify a frisk.

The case began when five police officers approached 4 men talking outside an apartment complex. The building was located in a high-crime neighborhood.

Officers went there looking for a suspect who had an outstanding arrest warrant and was believed to be selling weapons. None of the 4 men the police encountered at the apartments were the suspect that police were looking for.

Police noted that surveillance cameras were being used outside the complex.

Two police officers approached the men that were gathered there and identified themselves as police.

Police noticed that one of the men seemed nervous and when officers approached the man ran away. The other officers chased him, while the three others stayed, one of which was the defendant.

Police noted that the defendant did not appear nervous or to have a weapon. As the officers engaged the men, the defendant remained seated calmly, holding a baby on his lap.

Police then announced that they would be conducting frisk search on all three of them that remained. Before the officers began, one of the men handed over a baggie of marijuana to the police. The officers then proceeded with the pat-down searches of which no weapons were found.

During the pat-down search, the officer found marijuana in the defendant’s pocket. Subsequently, the defendant was charged with illegal possession of marijuana.

The defendant moved to suppress the evidence, arguing that the marijuana was discovered as a result of an unlawful search.

The trial court ruled that police had reasonable suspicion of a crime in progress. It reasoned that the frisk was justified based on the following facts: When police approached one man fled; Police were at that location to arrest someone with a warrant; The apartment complex was located in a high-crime neighborhood; The two officers felt outnumbered against the three men who remained.

The trial court denied the defendant’s motion to suppress, and the defendant was consequently found him guilty of illegal marijuana possession.

The Arizona Court of Appeals affirmed the conviction. In reviewing legality of the frisk, the Court considered factors police believed created reasonable suspicion, and whether or not the circumstances would reasonably compel an officer to believe the men were armed and dangerous.

The Appeals Court court found that the companion who fled might justify a protective stop and frisk, even if there was no particularized reasonable suspicion the defendant had committed a crime.

The Arizona Supreme Court granted review on appeal. It emphasized that reasonable suspicion must be based on particular, individualized, and objective facts. The prosecution agreed that there was nothing that the defendant did that created reasonable suspicion of his own involvement in a crime, or that he was armed.

The Court reasoned that the defendant didn’t react in a suspicious way to the officers as they approached the men, and he was cooperative. The Arizona Supreme Court also noted the trial court’s reliance on the 5 circumstances used as a basis in for which officers made their decision to frisk. In summary they included: The fact that one of the men fled the scene when officers approached; The initial reason they went to the apartment complex which was to find a suspect with an outstanding arrest warrant; The location of the apartment buildings which were in a high crime areas; The number of men gathered in front of the buildings compared to officers; The presence of surveillance cameras monitoring the exterior of the apartment complex.

The AZ Supreme Court agreed that there had been a showing of the presence of these circumstances. However, the Court noted that the defendant had no control of any of them. Further, the Court reasoned that there was no showing by the state that the defendant himself was engaged in a crime, or that he was armed and dangerous.

The Court explained that the facts didn’t create an individualized and particular basis for a reasonable suspicion which is necessary to justify a pat-down for weapons.

The Court did recognize the relevancy of considering the factor of a high-crime neighborhood when a person is actually suspected of criminal conduct, and of being armed and dangerous.

In conclusion, the court found that when a person is encountered in a high-crime area, it does not alone provide justification for a frisk search. The Arizona Supreme Court reversed the conviction and decisions by the lower courts.

Impact of Opinion in Arizona

Arizona Supreme Court decisions have the potential to influence future decisions because they become case law.

This is particularly true when the issues involve constitutional rights violations such as that of unlawful search and seizures.

The Arizona Supreme Court provided clarity to what factors create reasonable suspicion, and justification of a frisk search by police.

The Court concluded that police are not justified in frisking someone merely because they encounter them in a high-crime area.

The court held that reasonable suspicion exists must be based on objective, and individualized conduct by the suspect, and not by another’s actions, unless the defendant’s conduct has also raised reasonable suspicion.

If you are stopped by police in Arizona, it is unlawful for you to be subjected to a frisk simply because of their surroundings, or because of factors involving another person.

How a Criminal Defense Attorney Can Help You Resolve Your Charges in Mesa AZ

If you are charged with a marijuana crime, weapons offense, DUI or any other crime Arizona you will need an experienced criminal defense attorney to represent you.

In the case reviewed here, the defense moved to suppress evidence obtained unlawfully. When the court agrees to suppress material evidence that the prosecution plans to use against you, it often leads to a dismissal of charges.

Defenses may exist that if applied can lead to a favorable outcome and resolution of your charges.

This is just one of many types of defenses that can be used to challenge criminal or DUI charges.

The defenses used should be uniquely tailored and effectively presented as they apply to the circumstances in your case.

If retained, Mr. Novak will represent you effectively in your charges. He will evaluate the charges, and evidence to determine the best defense strategy in your case.

Early retention of a proactive criminal defense attorney will enable you to preserve your rights, and your defenses. It is the first step to gaining control over your situation and moving towards a resolution of the charges.

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

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

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

Additional Resources:

• A.R.S. § 13-3913 (Conditions Precedent to Issuance of Search Warrant)
• A.R.S. § 13 – 3405 (Marijuana Possession, Sales, and Transportation)
• Arizona Attorney General – Criminal Investigations
• Phoenix AZ Police Department
• Maricopa County Sheriff’s Department – FAQ
• One of the Most Important Reasons to Resolve Your Warrant
• U.S. Supreme Court Terry v. Ohio
• Cornell University Law School | Pat-down Search

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

• Marijuana Odor and Probable Cause for Search
• Arizona Supreme Court Rules on Voluntariness of Drug Testing
• Reasonable Suspicion and Totality of the Circumstances Arizona
• Entrapment: The Most Important Requirement for your Defense Revealed

The cases centered around two primary issues. The first was whether or not consent to a warrantless search to conduct DUI breath and blood tests were voluntary, after suspect agreed to submit to them only after the officer instructed him repeatedly about the law.

The next question for the court was whether or not the advisement by the police officer was given in good faith when the officer believed that his conduct was lawful and not in violation of the suspect’s 4^th Amendment rights.

This article provides a case overview, legal principles that applied, and the additional related resource information:

• Impact of Ruling on Arizona Drivers;
• Good Faith Exception to the Exclusionary Rule;
• Arizona Courts on what Constitutes Voluntary Consent to Search;
• Answers to the question surrounding “Should I consent to a DUI Test in Arizona?”;
• 10 Common Defenses for DUI Charges in Arizona

Case Overview

The case began when a Department of Public Safety (DPS) officer found the defendant sleeping in the driver’s seat of a truck that was stopped with the engine running.

In Arizona a person may be found guilty of DUI even if they were not driving the vehicle, but were considered to be in actual physical control of it.

The officer saw an open alcohol container and smelled alcohol. He also saw signs that the defendant was impaired, and the officer arrested the defendant on suspicion of DUI.

At the police station, the officer read an admin per se form that provided that Arizona law required him to submit to a breath, blood, or other bodily substance test, as chosen by a police officer, to determine his blood alcohol levels.

The officer verbally stated that the DUI tests were required by law. He repeated his advisement of this to the suspect 3 additional times.

The police officer warned the suspect that Arizona law required him to submit, and that his refusal would result in a one-year license suspension.

The defendant then cooperated, claiming he understood the admonition, and submitted to both blood and breath tests.

The tests results showed more than 0.20 percent Blood Alcohol Content (BAC) levels, in violation of Arizona’s Super Extreme Law A.R.S. 28-1382 (A) (2).

The suspect was charged with five counts of aggravated DUI.

The defense filed a motion to suppress the test results, arguing that his consent to the tests was not voluntary. He challenged the constitutionality of the warrantless search and voluntariness of his consent.

The officer testified at the suppression hearing. The trial court denied the motion to suppress the DUI test results on the grounds that the “totality of the circumstances” demonstrated the defendant’s consent.

The court then dismissed three counts and convicted the defendant on two counts, and prison sentences were imposed based on other merits of the case.

The appellate court affirmed, but the dissenting judge reasoned that there was no voluntary consent because the police had asserted they had lawful authority to search.

The defendant then asked the Arizona Supreme Court to review the decision.

The Court explained that warrantless searches are generally prohibited under the Fourth Amendment with some exceptions, including free and voluntary consent to search.

However, consent isn’t given freely or voluntarily if the defendant reluctantly gives in to an officer’s claim of lawful authority.

Under Arizona’s implied consent law, those who drive in the state implicitly give consent to DUI blood and breath tests if they are arrested for a DUI.

But A.R.S. § 28-1321(A) doesn’t authorize officers to administer a test without a warrant unless there is an express agreement or consent by the suspect to conduct it.

A compelled blood or breath test administered under § 28-1321 is considered a Fourth Amendment search.

Evidence from a compelled test obtained in violation of the Fourth Amendment is generally inadmissible in a criminal trial.

The defendant in this case argued that his consent must be considered involuntary because he agreed only after the officer repeatedly told him he was required to submit under Arizona law.

The Court noted that under case law, citing multiple cases including Byars v. State, that if the totality of circumstances showed that consent was coerced by threats or force or granted only in submission to an officer’s claim of lawful authority, the consent is invalid.

The Court held that consent given in response to a warning about the law, as in this case, was not freely and voluntarily given.

Once it was concluded, that the consent was not voluntary, the Arizona Supreme Court’s next task was to review whether or not the officer’s conduct fell within the good-faith exception to the exclusionary rule.

In effect, this means if the record shows that the officer reasonably believed in that they were acting in good faith and that their conduct was lawful, the evidence obtained following the invalid consent may still be admitted.

The court determined the good faith exception applied to the DPS officer’s conduct in this case.

Since the admonition in this case was given by an officer relying in good faith on case precedent, the Court ruled it would not be appropriate to exclude the test results.

Accordingly, the DUI conviction was affirmed.

Impact of Ruling on Arizona Drivers

The Court’s ruling in this case didn’t change the outcome for this particular defendant due to the good faith exception to the exclusionary rule.

However, it is important going forward, because it holds that officers must inform arrestees of the rules without implying that officers have lawful authority to compel a defendant to give samples of bodily substances, without a warrant.

An officer can inform an arrestee of the consequences for refusing to permit DUI testing and ask if the arrestee will consent.

Alternatively, the Court explained that the admin per se form should be revised so that it provides an arrestee with a clear choice about whether to submit to the tests.

Consent given solely based on advisement of a law, is not lawful, unless the officer is acting in good faith.

Good Faith Exception to the Exclusionary Rule

Before we consider the exceptions to the exclusionary rule, we must look at the meaning of the “exclusionary rule”.

The exclusionary rule refers to a doctrine established in criminal cases, recognized in the United States, which allows for evidence to be excluded from trial if it was obtained in violation of a suspect’s constitutional rights.

The remedy in Arizona criminal courts reflects this principle. Thereby, if police obtain evidence unconstitutionally, the defense may file a motion to suppress that evidence so that it may not be used against a defendant. Thus the evidence is “excluded” from trial giving rise to the Exclusionary Rule.

The exception that applied in this case was the fact that the court found the officer acted in good faith. If the police officer believes the conduct in searching or seizure of the evidence was lawful, then the evidence may be admitted as an exception to the exclusionary rule.

Another illustration of what the courts considered to be a good faith exception to the exclusionary rule, by law enforcement was in the ruling of Arizona v. Evans 1995.

In that case, the U.S. Supreme Court held that evidence obtained after an officer acted on an outstanding warrant, had been obtained in good faith.

However, it was later discovered that the warrant was actually resolved several weeks before the stop. The warrant was still showing active as a result of a clerical error.

The US Supreme Court noted that the exclusionary rule was designed to discourage law enforcement from intentionally gaining evidence unlawfully. In Evans, the officer acted on the information available to him on record, that he later learned was incorrect due to an administrative error. Thus the US Supreme Court felt the good faith exception to the exclusionary rule applied.

Arizona Courts on what Constitutes Voluntary Consent to Search

In this case, the Arizona Supreme Court found that court found that if consent is given by the suspect solely on the basis of the Police Officer’s warning about the implied consent the consent is not considered voluntary.

Below are some additional cases in which Arizona courts ruled on voluntariness of the suspect’s consent for DUI testing was considered:

• A driver’s consent to testing must be freely and voluntarily given (State v. Butler 2016);
• A driver’s consent must not be compelled by an ultimatum (State v. Spencer 2014);
• For DUI blood tests drawn incidental to medical treatment, the blood draw is not given freely and voluntarily if the suspect expressly refused (State v. Estrada 2004);
• When an officer asserts lawful authority to search, the consent is not voluntary, (State v. Valenzuela 4/16, citing Bumper)
• A DUI Test is not voluntary if consent was the result of coercion or duress (State v. Alder 1985).

The courts have recognized that all decisions on cases involving consent, should be based upon consideration of totality of the circumstances.

“Should I consent to a DUI Test in Arizona?”

One of the most frequently asked questions by drivers at a DUI stop is suspects in Arizona is “Should I consent to a DUI Test?” There are three factors to consider before making your decision to consent or refuse a DUI breath, blood or urine test:

• The laws in the state where the DUI stop occurs;
• Whether or not you can do without your driver’s license for a year;
• Your individual circumstances

Under Arizona’s Implied Consent law A.R.S. 28-1321, any person driving in Arizona gives their consent to have alcohol or drug testing if they are arrested for DUI, or for being under the influence of alcohol if they are under 21 years of age.

The type of test to be done such as DUI breathalyzer, blood tests, or other chemical testing, will be done at the officer’s discretion.

A person has the right to refuse breath, blood, urine or other chemical tests, but not without consequences.

If a person refuses, a one year loss of driving privileges will be suspended or denied for one year.

If a person fails to complete the test or expressly consent to it, will be considered to have refused the DUI testing resulting in a one year loss of their driver’s license.

If a person refuses, in many cases the police will usually be able to obtain a search warrant to administer the DUI breath, blood, or chemical test anyway.

Before the age of technology, obtaining a warrant was a more time consuming task for police. Now most police agencies have are equipped with electronic means for officers to obtain a DUI search warrant. A can be achieved within a fraction of the time it formerly took.

10 Common Defenses for DUI Charges in Maricopa County, AZ

An experienced DUI defense attorney will be aware of what defenses may apply, or other challenges that can be made, that may lead to a favorable resolution of your charges.

DUI charges may be challenged on different fronts. Your defense case should be tailored to the circumstances unique to your case. This may include moving to suppress evidence that was obtained in violation of your constitutional rights. In this case, the courts ruled that the good faith exception to the exclusionary rule applied. But not all evidence obtained in violation of a person’s rights, is done in good faith.

Below are 10 common defenses that may be used to defend DUI charges (This list is not inclusive):

• Evidentiary Challenges to blood test, urine, or other chemical tests including inconsistent independent lab results;
• Challenging the reason for the stop (no reasonable suspicion);
• Challenging probable cause for arrest;
• Violation of 4^th amendment search and seizure rights;
• Field Sobriety Test results invalid;
• Evidentiary Challenges of breath test instructions, procedures, or results;
• Failure to prove driver impairment;
• Violations in police procedures;
• Trial defenses;
• Miranda warning, 5^th Amendment, and other Constitutional violations.

If you are charged with any type of impaired driving offense, you have the right to defend your charges.

Though you were arrested and charged, that does not necessarily mean you will be convicted of impaired or drunk driving.

It is important that you consult a criminal defense attorney as soon as possible if you were arrested, or for a criminal or DUI offense.

If you are not aware of your rights, you could inadvertently jeopardize them for your defense.

For effective legal representation you should choose an attorney who understands the gravity of a DUI charge, and the nuances of the case law in this area. Your attorney should also be familiar with the court in which your case will be heard.

DUI Defense Attorney Mesa Arizona

“Prepared to Defend”

If you are charged with a DUI, consult James E. Novak, a DUI defense attorney, in Tempe, Arizona.

James Novak is a former prosecutor and experienced trial lawyer.

He provides a strong defense, make sure your rights are protected, and work hard to obtain the best possible resolution to your charges.

James Novak offers a free consultation Mesa, Tempe, Chandler, Gilbert, and Scottsdale, Arizona. Contact or call The Law Office of James Novak at (480) 413-1499. Speak directly with James E. Novak, experienced DUI and criminal defense attorney regarding your charges and defense options.

Additional Resources:

• A.R.S. § 28-1321
• A.R.S. § 28-1381
• A.R.S. 28- 1382
• A.R.S.§ 28- 1383
• Requirements and Exceptions to Lawful Search Warrants in Arizona
• National Highway Traffic Safety Administration | SFSTs
• Arizona Department of Public Safety | DUI Prevention
• Maricopa County Sheriff’s Office | Jail Information for Families
• Mothers Against Drunk Driving | Latest from MADD
• Consequences of Refusing a DUI Breath, Blood, or Urine Test in Arizona
• Arizona Breathalyzer, Blood, and Field Sobriety Tests – Criminal Defense Challenges

Other Articles of Interest from our Award Winning Blog:

• Consent to Search includes K-9 Search of Vehicle
• Your Right to Request Change of Judge in Criminal Court
• Warrantless Searches for Probationers
• Violations of “Search and Seizure” Laws: How they Impact Prosecution
• U.S. Supreme Court Rules No Warrant Needed To Collect DNA If Arrested

This means that, depending on the probation conditions, the privacy protections you thought you had under the Fourth Amendment of the United States Constitution related to search and seizure may not apply.

In a recent Court of Appeals case the state of Arizona appealed after the lower court granted a defendant’s motion to suppress the evidence of a warrantless search.

In this article we will examine a recent Court of Appeals case which centered around the challenge of a warrantless search at the residence of a probationers.

We will also take a closer look at some key legal concepts that the court examined in the process establishing a ruling in this case. The legal concepts we will discuss following the overview and court ruling summary include:

• Privacy rights for warrantless searches under the U.S. Constitution 4^th Amendment;
• Privacy rights for warrantless searches of a person’s residence under the Arizona Constitution Article 2, Section 8;
• A comparison of the two, and discussion as to why the more liberal privacy rights afforded under Arizona law did not apply;
• Assessing “Totality of the Circumstances” for reasonableness of a warrantless search on a probationer’s residence.

Case Overview

The case arose when the lower court placed the defendant on supervised probation after he was convicted of a repeat felony drug charge for solicitation to possess crack cocaine for sale.

The defendant’s probation conditions were not unusual for the offenses. They included requirements that he maintain a crime-free lifestyle; refrain from possessing firearms or ammunition; submit to searches and seizures of person and property by the Adult Probation Department without a search warrant; and submit to periodic drug testing.

Pursuant to the conditions of probation, the probation department searched the defendant’s home without a warrant on several occasions before the search at issue in this case.

An informant told an officer that the defendant was on probation, but he thought that the defendant was still selling crack.

The informant also said that he thought the defendant’s young child was coming with the defendant to the drug sale transactions.

The police advised the defendant’s probation officer, that the informant claimed that drugs were being sold from the defendant’s home.

Ten law enforcement officials including three probation officers and seven police officers went to the defendant’s home.

When the defendant met them at the door, the probation officer told him they were going to conduct a probation search.

It is not clear whether the defendant objected. The officers went inside without a warrant and seized contraband, including crack cocaine, a gun, and ammunition.

The defendant was charged with felony possession of drugs for sale, misconduct involving weapons, and possessing drug paraphernalia.

The probation officer filed a petition to revoke his probation.

The defendant filed a motion to suppress the items seized by police officers, arguing that it was a warrantless police search, rather than a search by probation officers.

The lower court rejected the argument, since the probation office participated.

The defendant filed a motion to reconsider on the grounds that the probation officers didn’t have reasonable suspicion to search.

The lower court granted the defendant’s motion to suppress, finding that there was an insufficient legal basis to search.

The court granted the motion to dismiss without prejudice, meaning that the prosecution could reinstate their actions in the case. The State appealed.

The Court of Appeals pointed out that although a warrant based on probable cause is usually necessary for a search, there are exceptions.

Some exceptions include searches incidental to arrest; suspect’s consent, exigent circumstances; or delays for a warrant would jeopardize the safety of others.

One of these exceptions involves the probation officers’ right to search a probationer’s residence under the probation terms. This type of search does not require a warrant or probable cause under the Fourth Amendment of the Constitution.

The defendant didn’t challenge the validity of his probation conditions or argue that the search violated those conditions.

Rather, the defendant’s argument was that the probation officer’s warrantless search of his home had to be based on a reasonable suspicion that he was engaged in criminal activity.

The State argued that the search simply had to be reasonable under the totality of the circumstances.

The Court of Appeals explained that in Arizona, a defendant must comply with probation conditions as long as they help in rehabilitation; or that the conditions are a reasonable alternative to incarceration as punishment for a crime.

So unless the terms violate the probationer’s rights or have no connection to the purpose of probation, the trial court has discretion in imposing conditions of probation.

The appellate court explained that while a defendant is on probation, he has a reduced expectation of privacy than other citizens have.

The appellate court explained that searches like the one of the defendant’s home were necessary to promote legitimate government interests, including the interest in integrating a probationer back into society, and preventing repeat offenses.

The U.S. Supreme Court has rejected imposing an individualized reasonable suspicion requirement.

Instead, the U.S. Supreme Court has directed courts to look at the “totality of the circumstances” to decide whether a search was reasonable.

The appellate court further explained that the person whose home was searched had to be a known probationer subject to a probation condition that allows a warrantless search. And that the search had to be conducted by a probation officer in an appropriate and non-harassing way in order to determine compliance with probation conditions.

The lower court’s order granting the motion to suppress was vacated, and the matter was sent bac00k to the lower court for further proceedings.

Warrantless Search & Seizures of Residence for Probationers under the 4^th Amendment

The court analyzed cases involving Search & Seizures for Probationers under the 4^th Amendment Constitution.

It pointed out that the 4^th Amendment allows for the right for people to be free from unreasonable searches as well as their homes, papers, and effects.

The court acknowledged that under the 4^th Amendment a warrantless search cannot be conducted in absence of probable cause, unless the circumstances fall within one of the meet one of the specified exceptions.

The United States Supreme Court has held that a warrant or probable cause is required for a Probation Officer to search a Probationer’s residence (United States v. Knights 1987). In this case it was held that no more than a reasonable suspicion of criminal activity was necessary to conduct a warrantless search.

The Appeals Court began its analysis with several Arizona cases where the issue was challenged over the last 4 decades including State v. Montgomery.

In this case it was decided that court may require that the probationer comply with probation terms that related to the probationer’s rehabilitation and public protection. And that in this situation, probable cause is not a prerequisite if it is necessary for the probationer to perform their duties properly.

In State v. Hill warrantless searches of probationers probation officers were consistently recognized as reasonable and necessary to promote the continued use of probation as an alternative to incarceration.

The issue in this case was whether or not the warrantless search of the probationer’s residence was reasonable based on the “totality of the circumstances.”

The court held that “reasonableness” was the “touch tone” of the 4^th Amendment (United States v. Knights). In this case reasonableness was determined by assessing the degree to which it intrudes on a probationer’s privacy, in comparison to the degree in which it supports the government’s legitimate interests.

The Court held that the defendant’s status as a Probationer subject to a search condition significantly diminished the probationer’s Privacy Rights.

Totality of the Circumstances

The count outlined factors recognized by precedent cases that can be used as a guide to consider as to whether or not a search is reasonable based on totality of circumstances which include:

• The search must be pursuant to the facts;
• The known probationer must be the target of the search;
• The search must be subject to an enforceable and valid probation condition that allows for a search without a warrant;
• The search must be conducted by a probation officer who possesses the duties and obligation to determine if the probationer is in violation or compliance;
• The search must be in appropriate manner with rightful purpose;
• The search must not be arbitrary; harassing, or capricious.

The Court noted that if the warrantless search was reasonable based on the totality of circumstances then it satisfied the requirements of the 4^th Amendment.

Arizona Constitution v. United States Constitution

In this and other precedent cases the defense relied on the fact that the language in the Arizona Constitution provides for more privacy to a person in their residence than does the 4^th Amendment of the United States Constitution.

Article 2, Section 8 of the Arizona Constitution states “No person shall be disturbed in his private affairs, or his *home invaded, without authority of law.”

This compared to the IV Amendment of the United States Constitution which provides the for the rights of 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.”

As we compare the two laws we see that Arizona expands more privacy rights to a person in their residence in that they have an expectation not to be disturbed in their private affairs, or to have their homes invaded without proper lawful [emphasis added] authority.

However in this case, the court held that the defendant did not provide a showing that the search of his home was in fact unlawful (Arizona v. Roberson 2010). Further, the court cited Arizona v. Juarez 2002, which held that the defendant’s rights will not be expanded beyond the United States Constitution’s 4^th amendment, unless it can be shown the warrantless search of the home was “unlawful’.

*Note: The privacy protections that extend beyond the 4^th Amendment of the United Sates Constitution under the Arizona Constitution Article 2, Section 8, apply to a person’s residence only, and not their vehicles.

Criminal Defense for Probation Violations, Drug Crimes, and Weapons Charges Mesa AZ

Probation violations often result in more severe penalties and sentencing than the original offense for which a person was convicted.

Although being on probation makes it more difficult to protect your rights. It can leave you feeling as though your freedoms have been reduced, it is for many, a better alternative than a longer prison sentence or spending time in jail.

The Arizona Supreme Court has held that Probation is a privilege and that revoking it is a penalty (Arizona v. Montgomery; Arizona v. Lyons)

When a person is in violation of their probation terms, the probation may be revoked.

Under A.R.S. 13-901 the presiding Judge at their discretion may reinstate the original sentence, or the maximum penalty under the law allowed for the crime of which a person was convicted.

If you are accused of violating probation you will be given a court date for a hearing.

Generally the burden of proof to prove guilt or innocence of a crime is “beyond a reasonable doubt” which is the highest of standards in the USA criminal justice systems. But this is not the case for probation violations. However, the standard for determining guilt or innocence in probation violation cases is by “preponderance of the evidence.”

Preponderance of the evidence means evidence that proves “more likely than not” that the probation was violated.

This means it is an easier task for the prosecution to convict a person of violating the terms of their probation that it is to convict them of a new criminal charge.

It is important that you consult an attorney about your probation violation before your court date to discuss your defense options.

A probationer has diminished rights to privacy for search and seizures;

But they do not lose the right to defend their charges in due process.

You have the right to retain legal counsel, which will help you to protect your rights, and increase your chances of avoiding harsh sentencing associated with revocation of probation.

James Novak of the Law Office of James Novak provides a free initial consultation for active charges, in his service area. He will discuss your matter with you, and provide you with options for defense. Call or contact The Law Office of James Novak today for a confidential and free consultation at (480) 413-1499.

Additional Resources

• Arizona Uniform Conditions of Supervised Probation
• A.R.S. § 13-701 (Sentencing for felony)
• A.R.S. § 13- 901 (Probation and Violation Laws)
• Arizona 13-3925 (Unlawful Search and Seizure; Admissibility of Evidence)
• Requirements and Exceptions to Lawful Search Warrants in Arizona
• Arizona Constitution Article 2, Section 8 (Privacy Rights)

Other Recent Articles of Interest

• Medical Marijuana Users have a Limited DUI Defense; Not General Immunity from Prosecution
• 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

Most people understand that they have a Fourth Amendment right under the United States Constitution to be free from unlawful searches and seizures. They may know that the police must usually have probable cause to get a warrant and must have a warrant to search a car or home. They may also know that the police cannot use evidence obtained illegally, in violation of a defendant’s constitutional rights. Violations of a person’s Fourth Amendment Rights involving search and seizures in drug crimes, may compromise the State’s ability to prosecute a suspect.

Today we will take a closer look at what the Fourth Amendment protections, as they apply on a practical level with an illustration. Here’s common question: “If I’m driving around with several pounds of Marijuana in my vehicle, do I have the right to refuse the request of a police officer who wants to search my car without a warrant?” The Supreme Court has ruled that people have less expectation of privacy in their cars than in their homes and therefore there are several conditions under which it may be acceptable to search a car without a warrant. But the most obvious scenario in which police can legally search your car is if you give consent.

Exceptions to the Need for a Police Search Warrant

Consent is an “Exception” to the general rules governing search and seizure. So a consensual search is one where a person agrees to let the police search their vehicle without a warrant to do so.

The Supreme Court held that so long as a reasonable person would feel free to disregard the police officer and go about his or her business, the encounter is a consensual one. In reality, however, most drivers would not feel comfortable refusing a police officer that had pulled them over and wanted to search the vehicle. In some instances a driver with marijuana in the trunk of his car who expressly refuses to consent to a search may have a stronger case than one who consents to the search. Police officers must have a probable cause to search or a reasonable suspicion of illegal conduct before searching in order to use any evidence gathered.

Alongside consent, another exception to the rule against warrantless searches and seizures is the “plain view doctrine”. This applies if, for example, the police pull you over because you made an illegal lane change and then see marijuana you planned to sell sitting in the back seat or see a pipe in the front passenger seat next to you. In either of those cases, the court would use a three-prong test:

(1) Was the officer lawfully present? (2) Did the officer have a lawful right of access to the object? (3) Was the incriminating character of the perceived object apparent?

If the answer to all of these questions are “yes” then the plain view doctrine exception will apply, and a warrant is not needed. In the situation described, the police officer had a right to stop you about your illegal lane change and could see the incriminating marijuana or pipe in the car. Therefore, this evidence could be used against you at a trial for marijuana possession or sales.

The stop itself, by police requires “reasonable suspicion” that a violation of the law has occurred or is in progress. On the other hand, if the marijuana was inside a backpack on the floor of your car and the police officer stopped you in absence of “reasonable suspicion” the plain view doctrine might not be applicable, and the stop itself may be unconstitutional. Another exception to the search warrant rule is the “search incident to arrest.” This exception might arise in the previously described scenario if the police decided to arrest you for a DUI because you were clearly intoxicated and talked about a gun. In the process of arresting you, they might pat you down for weapons. If you are carrying bags of marijuana somewhere on your person, it will be found in a search incident to your arrest and will be admissible in a trial for marijuana possession. The police may also use finding the marijuana as a reason to search the rest of your car.

On the other hand, if nothing suspicious was found on your person and you were placed in a police car, the Arizona Supreme Court determined in 2007 that the police may not come back to your car once the arrest is over and search it without a warrant.

Overview of Search Warrants

These principals described above are broad, and it is an in an area of law that has changed over time. These protections continue to be tested and challenged in courts throughout the country. Current technology makes it relatively easy for police to obtain a warrant within a few minutes, but they must still have probable cause to get one. A number of law enforcement agencies use electronic search warrant programs to request one from a judge on call. They simply complete a form including information describing their justification of “probable cause”. It is within a matter of minutes that the judge reviews the request and approves or denies it electronically.

If you are arrested for marijuana possession or sales, an experienced criminal defense attorney may be able to look at the circumstances in detail to determine whether the evidence was obtained legally or not. Contact the experienced criminal defense attorneys of the Law Offices of James Novak at 480-413-1499 for more information and a powerful defense.

Additional Resources

• United States Constitution
• Arizona Constitution
• Mesa Police Department
• Mesa Municipal Court

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• Defenses for Disorderly Conduct Charges in Arizona, Arizona Criminal Defense Attorney Blog, March 11, 2013
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