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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Federal Study Says Stoned Drivers Safer than Drunk Drivers

According to a new federal study from the National Highway Traffic Safety Administration (NHTSA), drivers that are under the influence of marijuana are significantly less likely to be in a collision than drivers who are under the influence of alcohol.

The study confirms what I’ve previously said on this blog, namely that, although marijuana does affect reaction times, the effects of alcohol on driving ability are far more likely to cause an accident.

The study, which is “the first large-scale [crash risk] study in the United States to include drugs other than alcohol,” analyzed over 10,000 drivers over a 20 month period.

According to the study, the risk of an accident for someone with a blood alcohol content of 0.08 percent was twice that of someone who was sober. Those with a blood alcohol content of 0.10 percent were six times more likely to be involved in an accident. The risk of an accident rose as high as 12 times for those with a blood alcohol content of 0.15 percent.

The numbers for the risk of an accident with marijuana use were significantly less.

Although drivers who had a THC in their system were 25 percent more likely to be involved in an accident, once the researchers accounted for other variable such as sex, age, and race/ethnicity, the risk ratio for marijuana use was no longer statistically significant.

“This analysis shows that the significant increased risk of crash involvement associated with THC and illegal drugs…is not found after adjusting for these demographic variables. This finding suggests that these demographic variables may have co-varied with drug use and accounted for most of the increased crash risk. For example, if the THC-positive drivers were predominantly young males, their apparent crash risk may have been related to age and gender rather than use of THC.”

In other words, the study suggests that the risk of an accident when a driver had THC in their system could be attributed to variables other than the presence of THC. And while this may be true, the NHTSA warns, “these results do not indicate that drug use by drivers is risk-free.”

However, the NHTSA also admits that, although it tested for the accident risk of drivers with THC in their systems, the presence of THC in not necessarily an indicator of actual impairment at the time of driving. THC can stay in a person’s system weeks after using marijuana and well after the person is impaired by its use.

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Study: Binge Drinking Affects Young Adults’ Immune Systems

Think the worst thing you’ll get from a night of hard drinking is a hangover? Think again.

New research published in the scientific journal Alcohol indicates that binge drinking negatively impacts the immune system of young adults for hours after the last sip. Researchers determined that while the body’s immune system ramps up when people are most intoxicated, two to five hours later the immune system is less active than when a person is sober.

The findings show a double health impact of binge drinking, which makes individuals more prone to serious accidents and traumatic injuries while also hindering the body’s ability to recover from those injuries. The research supports other published studies linking intoxication to issues like delays in healing, increased blood loss, and susceptibility to infections. The age of the research subjects is also significant as many young adults believe they are less likely to experience health risks from excessive drinking compared to older individuals.

According to the Centers for Disease Control and Prevention (CDC), binge drinking involves consuming four or more alcohol beverages in a two hour period, usually resulting in a BAC higher than the legal driving limit of 0.08. The CDC estimates that binge drinking accounts for more than half the alcohol consumed by adults in the U.S., and one in six young adults partake in binge drinking four times a month on average.

The researchers hope their findings will provide more support for efforts to curb binge drinking. Do you think the results of this study could help reduce excessive drinking among young adults?

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CA DMV Study Shows IID Pilot Program Not A General Drunk Driving Deterrent

Currently, there are four counties in California that are participating in the ignition interlock device, IID, pilot program:  Los Angeles, Alameda, Tulare, and Sacramento, per California Vehicle Code Section 23700.  The pilot program requires all driving under the influence, DUI, defendants, including first time offenders, to pay for, install, and then maintain the IID for a period of time as determined by the number of drunk driving convictions the individual has.

An IID is a breathalyzer instrument that is professionally installed in the defendant’s vehicle by a court-approved company.  The driver must blow into the device, providing an alcohol-free sample.  If alcohol is detected, the car will not start.  Once started, the driver will be prompted to give another sample within 15-minutes of driving and then again about every 45-minutes.  If alcohol is detected during a random sample, the car will stall and become inoperable.  These are referred to as “sample failures” and are reported to the court.

Recently, the Department of Motor Vehicles released its report to the Legislature of the State of California of its findings regarding the “General Deterrent Evaluation of the Ignition Interlock Pilot Program in California.”  According to this sixty page report, the DMV study found “the IID pilot program was not associated with a reduction in the number of first-time and repeat DUI convictions in the pilot counties.  In other words, no evidence was found that the pilot program has a general deterrence effect.”  (See “Report Documentation Page.”)

However, the report mentioned another follow-up study that is being conducted to determine if the pilot program has any specific deterrence effects.”  The specific deterrent effects address the “specific behavior of individual drivers who were convicted of DUI subsequent to the implementation of the … law and thus were subject to the IID pilot program requirements…” (See page ix.)

The DMV recommended that the legislature consider the specific deterrence evaluation if/when they take any further action regarding the IID program.  That follow-up study is due to be completed in the fall of 2015.  (See ix and x.)

The Law Offices of Susan L. Hartman recently blogged about California State Senator Jerry Hill’s bill, SB 61.  If passed, this bill would require all those convicted of drunk driving, in all California counties, to install an IID.  Senator Hill’s position is that mandatory IID requirements reduce recidivism and first time DUI offenders, just the opposite of what the DMV’s own study found.

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Study Reveals that Ignition Interlock Devices Don’t Do Any Good

The California Department of Motor Vehicles (DMV) recently undertook a study for a report to the California Legislature about the effectiveness of ignition interlock devices for people who had been convicted of DUI. The bottom-line conclusion of the DMV was that ignition interlock device requirements for first, second or third time DUI offenders did not reduce the risk of the person re-offending in the future. In other words, ignition interlock devices don’t make any difference. You can read the report here. The report cites to a previous study from 2005 that had “mixed results” and found that ignition interlock devices actually INCREASED the chances of risks of drivers crashing. Presumably, this is because ignition interlock devices require not only that the driver blow into them to start the car, but also require “rolling tests” while driving. So, every 15 minutes or so you have to blow into the thing while the car is moving – which sounds dangerous. So, the “traffic safety” benefits of ignition interlock devices are “questionable” at best. In the California study, ignition interlock did nothing to reduce the number of DUI offenses or convictions.

Kansas is one of the few states that requires the installation of an ignition interlock device for a first time DUI conviction or suspension. A few years ago the Kansas Legislature passed laws requiring the ignition interlock device for 6 months for people who blow between .08 and .150, and at least one year for those that blow over .150, on their first offense. If a person refuses to take a test, the length of restriction to an ignition interlock device is for 2 years on a first offense. The years of required ignition interlock device go up from there for subsequent test failures and refusals. The ignition interlock lobby is very strong and is extremely active in getting laws passed that benefit the ignition interlock companies in states around the country. Mothers Against Drunk Driving (MADD) has the requirement of ignition interlock devices for every DUI offender listed as one of their primary goals for each state. As I said, Kansas has already fallen in line with the ignition interlock requirement and not only restricts every DUI driver to a period of ignition interlock, but requires that the driver show proof that he or she actually had the device in his or her car for the required time period before the driver’s license can  be reinstated. The legislature has made sure that the interlock companies get paid.

The California study showed that 74% of all DUI offenders were first-time offenders and that they had the lowest rate of recidivism. Ignition interlock devices did nothing to generally deter the public from drinking and driving and did not have any effect on that rate of recidivism for those once convicted. I would imagine that the numbers in Kansas would be the same. People who have never had a DUI in Kansas are not aware that ignition interlock will be required if they get one, and studies show that people don’t pay attention to that kind of information even if it were widely publicized. So, the overwhelming majority of people have no idea that ignition interlock may be required if they get a DUI, the devices do little to nothing to reduce the incidence of DUI and may actually make the roads less safe. The ignition interlock campaign does nothing to address the 74% first-time offenders. In fact, all of the harsher punishments, longer suspensions, requirement of ignition interlock, the criminalizing of refusals and other increasingly draconian measures implemented in the past decade or two have had zero effect on the incidence of DUI. To the extent that traffic fatalities have decreased, this is more an effect of airbags, better road design, and better car design. We cannot jail or ignition interlock our way out of the DUI issue. The government’s gameplan is to keep ratcheting up the consequences instead of focusing on actual prevention. We’ll see what California does with this study.

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Congress Launches Study into DUI Ignition Interlock Technology

By guest-writer

The U.S. Congress has launched a study into the effectiveness of “in-vehicle” technology, such as ignition interlock systems, when trying to prevent drunk drivers from starting their cars, according to a report from Politico.com.

In a recent transportation bill passed by the Senate, politicians subtly inserted a provision that asks the National Highway Traffic Safety Administration (NHTSA) to study the potential effects of a “more widespread deployment” of in-vehicle devices.

The research will be conducted by the Driver Alcohol Detection System for Safety, which is a joint effort between the automobile industry and the NHTSA to reduce the overall occurrence of drunk driving.

The goal of the research is to design technology that is “far less intrusive” than the current ignition interlock devices, which require drivers to blow into a breathalyzer device that is attached to the car’s dashboard and wait up to a minute for the breath sample to be measured.

Several states require repeat DUI offenders to have these devices installed in their cars, and some states have even proposed laws that would require first-time drunk drivers to blow into these machines before starting their cars.

Of course, the efforts by Congress to develop better DUI prevention technology have been met with some resistance from civil liberties advocates, as well as the alcohol industry itself.

According to Sarah Longwell, the managing director of the American Beverage Institute, the bill could eventually lead to a mandate that forces all car makers to insert these devices into their cars as original equipment.

This, naturally, upsets the American Beverage Institute, which represents alcohol distributors and restaurants that sell alcohol, because the presence of alcohol testing devices in cars could dramatically reduce the number of people willing to go out on the town to drink.

In response to these concerns, those who support the bill claim that car companies would not necessarily have to insert these devices into every new vehicle.

According to J.T. Griffin, a senior vice president with Mothers Against Drunk Driving, “car companies right now are trying to figure out how to do it and if it can even be done. The goal is this would be a voluntary technology.”

However, Griffin also said his organization believes that, ultimately, “every parent in America is going to want this on their vehicle.”
If this prediction proves correct, alcohol detection systems could eventually become as common a car feature as radios, windows, and air conditioning.

View the original article here

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