Arizona Court of Appeals Marijuana Trafficking Case Study: Part II of II – Suspects 40 Minute Detention for K-9 Drug Unit Not Unreasonable.

Your Rights at a Stop; 10 Defenses for Drug Charges; Mitigating Sentencing; Drug Trafficking Laws; Penatlies.

This is Part 2 of our Case Study on a recent Arizona Court of Appeals ruling involving Marijuana Trafficking charges.

If you’re just joining us, here’s a quick summary of the case: Recently, an Arizona Superior Court granted suppression of the Marijuana evidence that led to the State’s dismissal of the charges. The State promptly appealed arguing that the lower court erred in dismissing the Marijuana evidence found in the vehicle the suspect was driving.   The state argued on Appeal that the detention of the suspect for 40 minutes while awaiting the drug K-9 unit was not unreasonable.

The Appeals Court agreed, and overturned the lower court’s ruling, based on totality of the circumstances at the time.   The factors that the Appellate Court considered were the police officers extensive knowledge and experience in drug trafficking detection; prior drug crimes history of the suspect; voluntary statements made by the suspect at the time of the stop; and the suspect’s consent to search the vehicle he was driving.

In this discussion we focus on criminal rights at a stop, common defenses for drug crimes, laws, and drug trafficking penalties in Arizona.

Criminal Rights at a Police Stop

In the case study, the police used the suspect’s inconsistent statement about his destination to police which were used against him. The suspect also agreed to a search of his vehicle, which led to the discovery of the boxes of Marijuana in the trunk of his rental car.

Under the 5th Amendment of the US Constitution a person is afforded protection from self-incrimination. A person has the right to remain silent upon questioning by police, except to answer routine identification or procedural question during an investigative stop. But a suspect does not have to answer questions about where they were, or where they were going at an investigative stop.

At a police stop, a person has the right remain silent, including the right to refrain from answering questions about where we are going.  A person also has the right to refuse a search of their vehicle. There are a few exceptions to this including police having a valid warrant, or what is known as exigent circumstances. A person has these rights under state and federal laws, whether the Miranda warning is read to them or not. It is critical to invoke these rights. Failure to do so may result in arrest and prosecution.

In this case, the statements offered by the suspect were seemingly innocent, and had nothing to do with the illegal drugs that were in the trunk of the vehicle.  However, the officer testified that he found the suspect’s statements “perplexing” and “confusing”, which raised the officer’s suspicions of the suspect’s potential criminal activity.

Alone, the suspect’s statements may not have been sufficient to raise suspicion of criminal involvement. But the officer took into account other factors he observed, when he decided to further detain the suspect. So the seemingly innocent statements made by the suspect, were used by police against him in this case. When this happens it constitutes a form of self-incrimination.

Under the 4th Amendment, a person is protected against unlawful search and seizures. If a person consents to the search, the officer may search their vehicle without a valid search warrant. In this case the suspect consented to a search of the vehicle. But he refused to extend his consent to the contents of an unmarked, taped box in the trunk. At this point the police requested the K-9 unit to investigate the boxes with the suspicion that the boxes contained illegal drugs. It was the original consent however of the vehicle that led the discovery of the suspicious boxes in the trunk of the vehicle.

10 Common Drug Crimes Defenses

A number of defenses can be used to challenge drug charges. Which defenses your attorney uses to challenge the charges will be heavily based on the facts and circumstances surrounding the case. There are also, different types of defenses that made be used pre-trial or during trial. Below is a sample of 10 defenses commonly used by experienced drug crime defense lawyers:

• Reason for the stop:
• Unlawful search and seizure rights;
• Violations of Miranda Rights;
• Unlawful detention;
• Police procedural violations;
• No probable cause for arrest;
• Other constitutional violations;
• The drugs belonged to someone else;
• Entrapment;
• The suspect was unaware that they were in possession of the drugs:

Note: It is not a valid defense for someone to be unaware of the laws in Arizona regarding the legality of Marijuana. But rather, it would be a valid defense if the accused was reasonably unaware that they possessed illegal drugs, or that the vehicle they are driving contained them.

5 Sentencing Diversion or Reduction Factors

If a person is found guilty or pleads guilty to a drug crime there are multiple factors the court takes into consideration.   The general rules are that crimes involving repeat drug convictions, and higher quantities call for the most severe of penalties under the Arizona criminal justice system.

Below are some common alternatives that can be used to reduce the severity of  penalties or help a defendant avoid incarceration:

Successful completion of substance abuse program, (TASC) in place of incarceration for qualified first time offenders with no criminal history;Amount of illegal drugs involved was below the Statutory “Threshold Amount” or lower than the person had been originally accused of possessing;No weapons were involved No other aggravated circumstances were involved;No prior criminal records;Felony charges reclassified to allow which serve to reduce sentencing and penalties.

Arizona Marijuana Transportation Laws

In Arizona it is unlawful to possess, use, sell, transport or distribute Marijuana, outside of the scope of the Arizona Medical Marijuana Act (AMMA) A.R.S. 36 – Chapter 28.1 recreational use of Marijuana is not lawful in any form.

A person may be guilty of violating A.R.S. 13-3405 (A) (4) if they knowingly transport for sale, import into the state; offer to transport for sale, or import into this state; or transfer marijuana in Arizona.

Marijuana Trafficking Penalties

The penalties below apply to non-dangerous, non-violent, non-multiple, non-repetitive offenses:

If a person is found guilty of illegally transporting an amount of less than two pounds of Marijuana they will be convicted of a Class 3 felony. Penalties for this offense range from 2 years Mitigated to 8.75 years Aggravated; 3.5 Presumptive prison sentencing.

If a person is found guilty of illegally transporting a weight of two pounds, the Statutory Threshold Amount, under A.R.S. 13-3405 (C) or more of Marijuana, they will be convicted of a Class 2 felony.  Penalties for this offense range from 3 years Mitigated to 12.5 years Aggravated; 5 years Presumptive prison sentencing;  ineligible for probation.

Fines not less than $750.00 or three times the value of the marijuana whichever is greater up to $150,000 per charge per person or 1, 000,000 per charge per enterprise; other fines, fees, costs, and assessments; supervised probation or parole if eligible; Felony Criminal Record; Community Service or Restitution; Completion of Drug Rehabilitation or Substance Abuse Program; Loss of civil rights to vote and possess arms; Other penalties ordered by the court.

Felony Drug Defense Attorney

In Arizona, all Marijuana drug sales and trafficking convictions call for serious punishment. It is possible that a person convicted of drug sales or trafficking, could spend the the rest of their life in prison. If you face any felony drug charge, it is important that you consult an experienced felony drug defense attorney to discuss your options for defense.

James Novak, DUI & Criminal Defense Attorney is an experienced and highly skilled drug defense lawyer. As a former prosecutor he has a vast amount of litigation experience in drug charges. The Law Office of James Novak, PLLC  is exclusively limited to DUI, and criminal defense.  If retained, James Novak, Attorney will protect your rights, defend your charges, and work hard to resolve your case for the most favorable outcome possible.  Some outcomes may include dismissal, reduction of charges and  sentencing, avoidance of incarceration, and other mitigation in sentencing.

James Novak provides a free initial consultation for active charges, in Phoenix, Tempe, Mesa, Chandler, Gilbert,  and Scottsdale Arizona.   You can call by phone or send a contact form thought the website to get a return call to confidentially discuss your matter and defense options.

“You have the right remain silent, and refrain from answering questions about where you are going. You also have the right to refuse a search of your vehicle, in absence of a valid search warrant.  You have these rights whether they are read to you or not”. 

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Arizona Court of Appeals: Officer had Reasonable Suspicion to Detain based on Totality of Circumstances: Part I of II: Case Study

“Suspect’s 40 minute detention, while awaiting drug K-9 unit was not unreasonable”.

In a case decided earlier this month, an Arizona Appeals Court ruled that an officer had enough “reasonable suspicion” to detain a suspect 40 minutes while awaiting the drug K-9 unit.

The court considered the “Totality of Circumstances” or “the whole picture”, to conclude that the detention was not unreasonable.

Case Facts

The suspect was pulled over, after the police officer observed the driver swerving and traveling at varied rates of speed.

The officer approached the vehicle, and requested the driver’s license, and registration.  The driver complied as well as providing the rental car agreement.

The officer asked the driver where he was going, at which point the driver provided several answers. The officer reported that the answers were inconsistent, “confusing” and “perplexing”.   The officer reported that the responses raised the officer’s suspicions.

The officer then noticed that there were no personal belongings in the vehicle.  So he asked the driver if he was planning to stay in Phoenix AZ. The driver said no.  The fact that the suspect was not planning to stay in Phoenix, but had no personal belongings in the vehicle, elevated the officer’s suspicions of potential criminal activity in progress.

The officer decided to do a background check on the suspect. The criminal records check revealed that the suspect had an extensive history of illegal drug trafficking and manufacturing crimes in a different state.

The officer asked for the suspect’s consent to search the rental car, and the suspect consented to the search.

Upon search of the trunk, the officer discovered two cardboard shipping boxes of “very solid weight” that were unlabeled, and taped closed.  The officer asked the suspect to open the boxes, but the suspect refused.

At that point the officer requested the police department’s narcotics K-9 unit to be brought to the scene and check out the boxes. The K-unit arrived approximately 40 minutes later.

The police dog “bit one of the boxes” in the trunk, signaling to the officer that the K-9 detected drugs in the boxes. The police officer opened the boxes and found the Marijuana. 

Court Summaries 

The Superior Court of Arizona initially granted the defendant’s motion to suppress evidence of Marijuana  discovered in the trunk of the rental car the defendant was driving. The Superior Court’s decision was made on the basis that the officer did not have reasonable suspicion to detain the suspect while the police officer waited for a narcotics dog to in check boxes found in the trunk of the vehicle.

The State appealed the Superior Court’s decision to suppress the Marijuana evidence. The state argued that the lower court erred by ruling that the police officer did not have reasonable suspicion to detain the suspect in order to wait for the drug K-9 unit to arrive.

Case Analysis

The Arizona Appeals Court identified the need to evaluate the  “Totality of the Circumstances” or the big picture, in its decision as to whether or not the officer had a “particularized and objective basis for suspecting that the person was engaging in criminal activity” citing “O’Meara, 198 Ariz. at 295 ¶ 7, 9 P.3d @ 326.

The Appeals Court recognized that while a police officer must have more than a hunch or non-particularized suspicion, “reasonable suspicion” does require a minimal level of objective justification, .though considerably less than a preponderance of the evidence citing Teagle, 217 Ariz. at 24 ¶¶ 25–26, 170 P.3d  @ 273.

In this case, neither the reason for the stop, or the facts surrounding the case were in dispute. So the question for the Appeals court was “What exactly did those facts and circumstances mean?”.  

The court ruled that the detention was reasonable based on the Totality of the Circumstances in which they considered the following set of factors:      

Circumstances that led to the initial stop;Defendant driving rental car, traveling, with no personal belonging inside the vehicle;Inconsistent Statements by suspect about where he was going:Extensive criminal history of illegal drug transport and manufacturing, out of state;Unlabeled, taped boxes found in trunk of car with weight and density consistent with illegal drug packages;The police officer’s high level of expertise, skills and experience in detecting illegal drug transportation activity.

Of those factors, the two that seemed to carry the most weight with the court were the defendant’s significant drug transportation crimes history; and the police officers extensive drug trafficking detection experience and skills.

The court cited a number of cases to support the opinion that a suspect’s criminal history is considered part of the totality of circumstances; in that, the criminal history may cast suspicious light on seemingly innocent behavior  (United States v. Simson).

The court concluded that criminal history  in conjunction with other factors contributed powerfully to the reasonable suspicion determination for the officer, (United States v. White). At the same time, however, the court emphasized that criminal history  cannot be used as the sole factor in deciding if reasonable suspicion exists. Criminal history is part of the equation that can impact the officer’s judgment about whether criminal activity may be in process or occurred.  It may serve to cast suspicious light on what might otherwise be considered seemingly innocent behavior.(United States v. Simpson; United States v. Chamberlin; State v. Lee; United States v. Cotterman).

With regard to the training and expertise of this particular officer, the court cited that these attributes would allow a highly skilled officer to distinguish innocent from suspicious actions. (Teagle, 217 Ariz. at 24 ¶ 26, 170 P.3d at 273).  In that, some inferences of drug trafficking activity might well have eluded in the eye of an untrained observer. (United States v. Arvizu).

Criminal Defense Attorney Phoenix AZ

Marijuana, or any illegal drug trafficking or sales in Marijuana are serious and carry some of the most severe penalties called for under Arizona law.   In fact, its quite possible that a drug trafficking conviction can send a person to prison for the rest of their life.

In this case study above focused on one issue of challenge in a criminal defense case. But a number of arguments may exist in which a criminal case and its evidence may be challenged.  Every case holds its own unique set of circumstances.  For this reason, an effective defense strategy should be tailored to the facts and circumstances of the case.   Challenges may include constitutional rights violations such as unlawful stop, search or seizure; weaknesses in evidence; affirmative defenses; violations of police procedure and protocol; and others. We will discuss these defenses in depth, in Part II  of this series. .

You should always consult a highly skilled and experienced criminal defense attorney if you face illegal drug trafficking, sales, or intent to sell charges.   A qualified and effective criminal defense attorney will protect your rights, and defend your charges through due process in the criminal justices system.  James Novak, Drug Defense Attorney is a former prosecutor with a vast amount of litigation experience in handling drug cases of all types. He will make sure you are treated fairly, protect your rights, and fight to get the most favorable outcome in your case.  The Law Office of James Novak, PLLC defends criminal and DUI charges in Phoenix, Mesa, Tempe, Chandler, Scottsdale, and Gilbert AZ. Experienced Attorney, James Novak provides a free consultation for active charges within his serving areas.

We hope you will stay with us to read part II of II as we examine continue our discussion.  Part II outlines Criminal Rights at a Stop; 10 Common Drug Defenses; Mitigating Sentencing; Drug Trafficking Laws; Penalties for conviction; Felony Drug  Defense Representation in Phoenix AZ.    

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Boston’s Appeals Court Overturns Sex Crime Conviction In Prostitution Case Involving A Juvenile- Attorney Sam’s Take

Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network.
To speak to Sam about a criminal matter call 617-492-3000.

Posted On: January 12, 2011 by Samuel Goldberg

Here’s one for the sex trade! In the past, we have discussed many times the various, and in my opinion, faulty rationales for keeping prostitution illegal. One of those rationales has been that prostitutes are, per se, victims. They are exploited and forced to perform sex acts for money. The thought seems to have been that being a prostitute is definitional of losing one’s will and performing the evil deeds by force.

Well, the Massachusetts Appeals Court has ruled against this equation. It has thrown out the convictions of a pimp and a madam (hereinafter, the “Defendants”), ruling that the couple did not lure a homeless and drug-addicted teenager into prostitution because the 16-year-old runaway had sold her body for money in the past.

The court did, however, let stand the Defendants’ convictions for deriving support from prostitution and contributing to the delinquency of a minor.

The allegations in the case were that the Defendants drove the teen to the hotel where she met an undercover detective and agreed to engage in sex for $280, according to court records. Using a ruse, the officer convinced the teen to leave the hotel before any sexual acts occurred. The teen then apparently handed the cash the Defendants, who were waiting in the hotel parking lot

The court found, “We think that the language of the statute is plain and unambiguous and that it clearly expresses the Legislature's intent to penalize a person for inducing a minor, who is not then so engaged, to engage in the commercial enterprise of prostitution by offering for hire his or her body for indiscriminate sexual activity’’.

As a Boston sex crimes criminal defense attorney for over twenty years, not to mention previous years as a prosecutor, I have been involved in a number of cases involving prostitution.

I agree that it is worth prosecuting those who force anyone into prostitution, or aid children in engaging in the trade is worthwhile. However, the attempts to combat those situations are diluted and tainted when we open the broad scope of assuming that every prostitute is a victim and must be saved from themselves, if not everyone else. In fact, it perverts the very effort of female dignity assuming that a woman could never make such a choice herself with sound reason.

In this case, the Appeals Court did not make new law or break new ground. It did, however, enforce the law as it was meant when it was written, rather than simply cave in to public sentiment.

Playing the devil’s advocate (something most people would say I do every day in my line of work), there is an interesting argument that could be made against the court’s ruling. As you know, in matters sexual, we tend to believe that a minor cannot consent to sex. Under the law, it does not even matter if the sex-mate knows that the minor is under age. In fact, it does not even matter if the minor lied and “proved” she was of age.

Sex with a minor, with or without her preferred consent, is rape. Pure and simple.

Couldn’t one argue that, since the prostitute here was a minor, she had to be induced, because any participation with her in the sex trade is manipulating her because she has no ability to consent?

After all, under the law, any customer who had sex with a minor should be not only guilty of prostitution, but also rape.

Just saying…..!

The language and rationale of the laws and how our law enforcement agencies choose to implement them is a pretty thick and, often, confusing forest.

This is why you need an experienced criminal defense attorney to help light your way through it.

If you would like to discuss my lighting your way, please feel to call me to arrange a free initial consultation at 617-492-3000.

To view the original story in which parts of this blog were based, please go to : http://www.boston.com/news/local/breaking_news/2011/01/by_john_r_ellem_29.html

View the original article here

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