Drug Conspiracy or Facilitation Charges with use of Cell phones, Wireless or Electronic Communications
Felony drug charges are often coupled with “conspiracy” or “facilitation” charges when the means of a buy-sale of unlawful drugs involves use of a cell phone, wireless or electronic communication.
In Arizona the Court of a Appeals ruled that to be found guilty of conspiracy or facilitation to commit a felony drug charge in violation of A.R.S. § 13-3417(A) requires wireless or electronic communication evidence with others besides the buyer and seller.
In other words, if the only evidence the prosecution plans to use against a defendant are communications associated with a defendant and an undercover agent by phone, it is not sufficient evidence to be convicted of Conspiracy.
However, if the seller personally met the undercover officer with the product to complete the transaction, the person could still be charged, and found guilty of possession, sale or intent to sell unlawful drugs.
Conspiracy charges often involve a number of co-defendants. It is not uncommon for innocent people to be mistakenly charged as conspirators as a result of their familial, domestic, or friendship with another co-defendant.
Often times a person is accused of being involved in a conspiracy they know nothing about and took no part in, simply for being at the wrong place, at the wrong time.
“Conspiracy” Classification and Sentencing A.R.S. § 13-1003 Crimes:
A person may be found guilty of Conspiracy in violation of A.R.S. § 13-1003 if:
- They intentionally promote or help someone commit a crime; and
- Agree with one or more other people to commit the crime; and
- One of the parties commits an *overt act to further the crime; and
- At least one of them will commit the offense;
*Note: The overt act requirement does not apply under the following circumstances:
1) The object of the conspiracy was to commit a felony crime against the person of another; or
2) The mission of the conspiracy was to commit a crime under A.R.S. § 13-1508 (First Degree Burglary involving explosives or deadly weapon) or A.R.S. § 13-1704 (Arson of an occupied structure) of Arizona criminal statutes.
Under the Conspiracy law, if a person is found guilty, knows or should have known that another person was involved in conspiring to commit the same offense, the person is considered to have conspired with that third or more entities, even if they didn’t know their identity.
Unlawful drug sales, distribution and trafficking are often coupled with Conspiracy offenses. Crimes in violation of A.R.S. § 13-1003 (Conspiracy), call for penalties which are the same as the most serious offense of the counts for which the defendant was convicted.
The exception to this is homicide. If someone is found guilty of facilitating or conspiring to commit murder, the law calls for life in prison without possibility of release on any basis until the service of twenty-five years.
“Facilitation” Classification for Felony Drug Crimes under A.R.S. § 13-1004
A person may be in violation of Facilitation to commit a felony drug crime under A.R.S. § 13-1004 their actions are based on knowledge that another person is in the process of committing a crime or intends to do so.
In this case the person charged with facilitation must have knowingly provided that person with the means for committing the offense, or the opportunity to commit the crime. .
Under this law facilitation charges are classified as follows:
- Facilitation Class 5 felony – If the main offense is a Class 1 felony
- Facilitation Class 6 felony - If the main offense is a Class 2 or 3 felony
- Facilitation Class 1 misdemeanor – If the main offense is a Class 4 or 5 felony.
- Facilitation Class 3 misdemeanor - If the main offense is a class 6 felony
Depending on the crime, a variety of defenses may apply, so challenges will be tailored to the facts of the case. Some of these defenses my apply to conspiracy or facilitation charges that do not involve electronic or wireless communications.
Here are *21 common challenges to conspiracy and facilitation charges:
- No evidence of any communications with persons other than seller or buyer as in this case;
- The accused were never agreed to conspire, facilitate, or commit a crime;
- No criminal intent;
- No knowledge of the conspiracy to commit a crime;
- Defendant provided a timely warning and reported the conspiracy to law enforcement officials;
- The defendant notified or warned the potential victim of the harm or conspiracy being planned against them;
- The defendant made attempted or made a reasonable effort to prevent the crime;
- Burden of proof was not met by the prosecution;
- Unlawful search and seizure;
- Other constitutional rights violations;
- Police procedural violations;
- Lack of or insufficient evidence;
- The individual did not have the capacity or was legally incapable of committing a conspiracy due to their state of mind;
- Statutory Defenses including time limit expiration on certain defenses, and jurisdiction;
- Duress by another causing defendant to be in fear of imminent danger to on behalf of themselves or their families if they failed to participate;
- Immunity to prosecution due to agreement and cooperation with authorities in prosecution of the offense;
- Mistaken identity;
- Mistaken mobile device ownership; (Text, or phone number, had no association with the defendant);
- Someone other than the defendant used their phone or mobile device to further or enable the crime. For example, the phone had been stolen;
- No overt act, where required by statute, was committed to further the offense.
*Note: This list is not all inclusive.Q & A: Search and Seizures of Mobile Devices
Below are some common questions and answers involving cell phones, mobile devices, wireless and electronic communications as they apply to criminal investigations:
- “Can Police Search My Phone in Arizona?”
- “Can Police Track my Location using Cell Phone Data in Arizona?”
- “What Should I do if police ask to search my cell phone?”
A suspect’s cell phone can be searched in Arizona under the following circumstances:
- With a valid warrant; or
- Consent by the suspect to search the phone;
While other exceptions exist for other types of search and seizures, they are limited for cell phones. In a recent landmark ruling Riley v. California 2014 The United States Supreme Court held that cell phones such as smart phones are basically mini-computers with a vast amount of data into a person’s life. A search of this nature, is different as it applies to digital data is different than other objects.
The Court held due to the vast quantitative information that is stored on a person’s cell phone, particularly smart phones, that a greater standard of privacy should be afforded. Therefore, cell phone searches require a valid warrant.
Generally, with other objects such as a home or vehicle for deadly weapons, circumstances may call for a search without a warrant. This occurs if the officer determines that awaiting a warrant would result in harm to the officers, or risk of destruction or loss of evidence. These are exceptions for objects other than digital data, or cell phones.
Another exception to the warrant, for general objects, is a search incidental to an arrest. Arizona courts have limited search and seizures of cell phones, however, in these circumstances.
With regard to search and seizure incidental to arrest, the Arizona Courts have followed the same holdings as in the landmark ruling, that digital data does not apply as indigent evidence that if not searched immediately.
Further, the exception for warrantless searches did not apply due to the fact that waiting for a warrant would not pose a threat of harm to police.
The ruling also held that the exception for bypassing a warrant due to the high risk that evidence will be lost, or destroyed, does not apply to digital evidence.“Can Police Track Location using Cell Phone Data?”
To track cell phone location data is referred to as “cell-site location information,” (CSLI).
In recent Federal Court of Appeals Cases it was ruled that cell phone location tracking is not a violation of a suspects 4th amendment rights.
In one Federal Appeals Court case, Davis v. United States of America, the petitioner appealed to the U.S. Supreme Court in October 2015. But the U. S. Supreme Court declined to hear arguments in the case.
Without a decision by the U. S. Supreme Court, the Federal Appeals Court holding that cell phone tracking by law enforcement, without a warrant, is not in violation of the 4th Amendment.
While this case can stand an arguable precedent, States continue to differ in laws that govern cell phone tracking by police. Some states have prohibited the practice.
In Arizona, it is also lawful for police to track CSLI without a warrant. Further, a recent Arizona Court of Appeals case filed by the America Civil Liberties Union the court ruled unanimously against requiring law enforcement officials to release their sources of tracking to the public. The court ruled that revealing the tracking sources and tools would not be in the best interest of the State.
In light of the debate, controversy and litigation that continues throughout the country, we can expect change in the future.“What Should I do if Police Ask to Search my Cell Phone?”
The officer must have probable cause to believe a crime is in progress or has occurred.
If the police ask to search or take your phone, politely ask to see a valid warrant.
If the officer produces a warrant, you have the right to review it to make sure it is valid.
The warrant should include the following information:
- Issued by the State of Arizona, by name;
- Signed by a judge or alternative magistrate;
- Assigned to the officer vested with authority to do the search;
- Named person or place that will be searched;
- Limited items that the police have been authorized to search;
- Time and date of issuance.
If the police do not have a warrant, politely let them know that you understand that you that a warrant is needed to search your phone, and you would like to see the warrant.
If the police insist or continue to demand that you give them your phone you should:
- Ask the officer if they are giving you a lawful order, or if you have the right to refuse;
- If police say you have the right to consent or refuse, you should refuse;
- If policy say it is a lawful order, then you should let them search the cell phone;
- Do not argue with them. Arguing with the officer may result in arrest for non-compliance, disorderly conduct, felony assault or other criminal charges; Further police could seriously harm you if they feel threatened;
- If you must give up your cell phone for search, politely and clearly add that you object to the search and they do not have your consent;
- Contact a Criminal Defense Attorney as soon as possible to make sure your rights are protected.
A person can be charged with Conspiracy and Facilitation even if their roll was miniscule, or even unintentional.
Police often bring such charges in hopes that those persons can provide information to help lead them to the primary conspirators.
Any conspiracy offense is potentially serious. But being charged does not mean you will be convicted of the crime.
You have the right to retain a criminal defense attorney to defend your charges.
You have the right to plead not guilty to your charges and are considered innocent of those charges, until you plead otherwise, or you are found guilty.
In order to protect your rights and defend your charges, you should retain an experienced criminal defense attorney to represent you.
James E. Novak is an experienced Criminal Defense Attorney and former prosecutor.
He is highly skilled at defending conspiracy and facilitation charges, and can provide a strong defense.
He provides a free initial consultation for persons with active charges in his service areas of Phoenix, Mesa, Gilbert, Chandler, Tempe, and Scottsdale, AZ and surrounding cities in Maricopa County.
Early retention is the key to a successful outcome in your case. Call today for your confidential and free initial consultation.
You can also submit a contact form on this website and you will receive a call back from Attorney James Novak, for new, and active criminal charges in his service area.
- 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)
- What Constitutes Conspiracy or Facilitation with Wireless Communications