If It’s Broken, Does It Matter Who Broke It?

At the core of the United States Constitution is the principle of Due Process.  In its most basic form, this principle provides that the government must respect all of the legal rights owed to the people. One of those legal rights is the guarantee of a fair trial to a person accused of a crime.

A fair trial includes preventing the State from unfair or suggestive identifications which would direct a witness to make a false identification. The most common situation where these protections are needed is a “line-up.”  This is a procedure where a witness tries to identify someone that may have committed a crime.

In State v. Garcia, a man appealed his armed robbery and murder convictions based on a flier containing a photograph. Here, when police arrived on scene, a witness provided a detailed description of the first man to walk into the bar. A few days later, the police showed the same witness a photographic line-up.  Garcia’s picture was included in a group of photos.  The witness failed to identify Garcia in the picture line-up.

Television stations were later given pictures from a security camera to help find the suspects.  It appears the pictures may have been provided by the police.  Subsequently, the police contacted the witness that failed to identify Garcia in the photographic line-up (and other witnesses); and told them not to watch any news broadcasts or any other coverage regarding the shooting.

However, despite the warning, the witness that previously failed to identify Garcia saw a “reward flier” containing the picture released by law enforcement. A key fact (for the court) was the reward fliers were not made, or passed out by the police.  Later, Garcia’s attorneys argued this identification was unfairly suggestive.  A motion to exclude the identification by witness was made.  The trial court denied the motion.

The Arizona Supreme Court held that because the flier was not made or authorized by the police, it did not fall within the protections of the Due Process Clause.  They reasoned there was no state interference of the witness and Due Process protection only forbids the State from causing this type of tainted identification.

It appears the court believed that releasing the photo was not enough state action to violate Garcia’s Due Process rights. Perhaps, if the defense was able to identify the creator of the flier, the result may be different.  What if the person was part of a silent witness program or some other quasi-government program?  Moreover, the opinion plainly states the defense did not admit a copy of the flier into evidence.  Could the contents of the flier have supplied some evidence of state action?

In sum, the behavior that taints the identification needs a closer connection (at least in Arizona) to state action, in order to be rise to the level of a Due Process violation.  Moreover, while the Court permitted the witness to testify about his identification, the defense still has the right to cross-examine the witness as to suggestive circumstances of the identification.

If you have questions regarding a specific legal issue please contact The Koplow Law Firm.

Lawrence Koplow

Arizona Marijuana Law: Something You Probably Already Knew About Marijuana and Religion

Just in case there was any doubt, the Arizona Court of Appeals made it official that your religious beliefs are not a legal defense to the crime of Possession of Marijuana.

In the case of State v. Hardesty, Mr. Hardesty was charged with possession of marijuana and possession of drug paraphernalia. After a routine traffic stop, drugs were found in Mr. Hardesty car.  He claimed that the drugs were part of his religion, and tried to assert a defense under the Freedom of Religion Act.

He argued that under both the federal and state constitutions, the Act protected his use of the drug. While many people believe that government may not restrict religious activity, this is simply untrue. The court here points out that the Government may restrict religious activity if: (1) the restriction furthers a substantial government interest, and (2) there is no less restrictive means of furthering the interest. The least restrictive means refers to an alternative way to protect the asserted interest, without a complete ban on the activity.  Here, Hardesty claimed that his religion allowed him to smoke and eat marijuana wherever, whenever, and in whatever amounts he felt necessary.

On the other hand, the government argued that there is a substantial interest is public safety, and a complete ban on its use is necessary. The court agreed with the government’s public interest argument.  The Court went on to there is no other way to insure public safety aside from the ban on marijuana use, because Hardesty insisted he could use marijuana at anytime and anyplace.

This one was not that hard to predict.  If you have question about a specific legal issue please contact the Koplow Law Firm.

Lawrence Koplow

Arizona Drug Law: Cheat First And Search Later

Drug sniffing dogs – you see them at the airport, the bus station, and on television. They serve an important purpose for law enforcement and the public. That is, they smell drugs when humans cannot. Moreover, the dogs do it in a manner that is not invasive to the people being search. However, there are some rules, like the 4th Amendment to constitution, that restrict how these dogs can be used.

For example, law enforcement can’t just bust down your door without a warrant and take a dog through your house to smell everything. When it comes to your home, the Fourth Amendment to the Unites Constitution was created protect against such unreasonable entries. However, the courts are giving law enforcement more and more “leeway” on how they use man’s best friend to overcome the constitutional hurdles of the Fourth Amendment.

Look for example at a 2010 Arizona Court of Appeals case, State v. Guillen. In Guillen, one of questions asked was: if consent to search a home is valid, when the resident giving consent was unaware of a dog-sniff conducted on her property, without a warrant, before she arrived home. That is, law enforcement went on her property without a warrant, had the dog sniff the garage and the dog smelled something. Then they asked the homeowner to search the house. At the heart of the case is the fact she consented to search.

One could could argue this way: law enforcement violated her fourth amendment rights, used the information they got illegally to help make an arrest that merely appeared legal. After all, would the resident have consented if she had known that a potentially illegal search / entry on her property had just occurred?

The above theory was essentially adopted by the defendant’s attorney in front of the Arizona Court of Appeals. They posited that the initial dog sniff on the property without the owner’s knowledge was illegal police misconduct in the first place. Thus, the later consent was not valid, and the entire search of the home would be illegal.

In general, courts consider the term “Consent” to mean the voluntary, and un-coerced permission of a person which allows a government official to take a specified action without a warrant.

However, the court disagreed with this argument after looking at the chain of events. The Court stated that the relationship between the sniff and the consent was the determining factor. For the consent to be invalid as the defendant’s attorney suggested, the consent must have been caused as a result of police misconduct. The fact that the resident did not know about the dog sniff, and she was not forced to allow police in the home, and she was not forced to allow police in the home, means that the consent was not a result of the dog sniff, and was not invalid on that argument alone.

It appears the court did not address the actual constitutionality of the dog sniff in the driveway. Consequently, the door may be left open to argue the constitutionally of this type search in the future if the facts distinguishable.

If you have question about a specific legal issue please contact the Koplow Law Firm.

Lawrence Koplow

Arizona Drug Law: I Bet You Never Knew How Important Your Blinker Was

When being stopped by an officer there are many things that go through a driver’s head. “Was I speeding?” “Is there a taillight out?” “Did I swerve?” On the other hand, most people don’t usually think “did I use my blinker appropriately.” However, the issue of the appropriate use of a blinker, was one of the primary questions decided by the recent Arizona Court of Appeals Case: Arizona v. Douglas Dean Starr.

In the Starr case, a DPS officer was driving along the highway behind Starr. The officer reported that he observed Starr following the car behind him too closely, and also changing lanes multiple times. Also the officer says he observed Starr, without using a turn signal, change lanes and pass a large commercial truck that was merging in the same lane, onto the highway. The officer pulled Starr over. During the stop, the officer found marijuana and other drug paraphernalia, resulting in confiscating the property, and multiple drug possession charges.

Starr challenged the traffic stop as being unconstitutional. That is, his attorneys argued there was not a constitutionally valid reason to pull his car over. If this were the case, then the drug charges would be dismissed. Their specific argument was that the wording of the statute that regulated the use of a turn signal, only mandates a driver use a blinker, when a driver makes a full 90 degree turn. They asserted the law does  not apply to situations when a driver  merely change lanes. This argument required the court to look at the statute and interpret the law’s true meaning.

The interpretation of this particular statute had not yet been analyzed by the Arizona courts until this case.  In its decision, the court looked to similar rulings in other states. Many other jurisdictions held that a turn signal is required when any type of movement of one car would affect the course of another car. For example, if there was no car in sight for miles, a person would not need to use a blinker.  The reason being, there is no chance of another car, having to change their pattern of driving due to the lack of blinker use.  Put another way, there are no safety reason requiring notice of a lane change. The Arizona Court of Appeals ruled that because the wording of the Arizona statute specifies the necessity for safety, and that there were other cars on the road when Starr changed lanes, the use of a blinker was required. Thus, the conviction was upheld.

Consequently, to be successful on this type of motion you need both: (1) a factual scenario with light or no traffic; and (2) you must argue the safety of the lane change (i.e no other cars needed to brake; no other cars took evasive action; traffic was not disrupted) .

If you have question about a specific legal issue please contact the Koplow Law Firm.

Lawrence Koplow

The Best Criminal Defense Blog Posts For December

Since the “best of the month” blog post at my DUI blog has received a lot of positive feedback, I thought I should do the same here.  I have searched far and wide and these are the best criminal defense blog posts that I have found in December.

• Will video kill our access to the courts? – A very good observation and opinion regarding the slow eroding of a person’s constitutional rights.
• What is scientific testimony? – A great post that argues that we shouldn’t just use the scientific method when we want to, or when it is convenient.
• 2,383 and Counting: Felonies have come a long way, baby – This post looks at the growth in the number of crimes becoming felonies.
• Lizards Don’t Laugh – O.K. it was written on November 30, not in December.  However, I just started this best of the month list, and his post is really good.
• The Arizona Association Of Criminal Defense Lawyers Is Here For You, Somewhere -  You should also read his follow up post, “Going to The Maricopa County Lawyers Rally Today?  These posts essentially critique the response of the Arizona legal community to County Attorney and Sheriff controversies; and the author’s criticism is exactly why they are here.

If you think I left out a deserving author, please let me know.

Thanks,

Lawrence

How Much Probation Can They Give Me?

The amount of probation a person can receive for an Arizona criminal conviction is one of the questions I am most frequently asked.  Thus, I have put together the following table.  The table is based upon Arizona Revised Statute §13-902.  Here it is:

Remember that the above probation terms are the maximum and are for general crimes.  The sentencing court can certainly give a substantially shorter term of probation.  Moreover, even if a maximum term of probation is initially given, the court has the discretion to terminate probation early.

Some felony convictions, regardless of class, have special lengths of probation pursuant to statute.  For example, for Arizona DUI convictions, or Arizona Extreme DUI, the maximum term of probation is five years; And for a conviction of an aggravated DUI offense pursuant to §28-1383, up to ten years. A.R.S. §13-902(B).

Persons with outstanding restitution payments are subject to an extension in their probationary period of up to five years for a felony and up to two years for a misdemeanor.

If you need legal advice for a specific problem, you must consult with an Arizona Criminal Defense Attorney. For more information about Arizona Criminal Law or a specific legal problem, please contact the Koplow Law Firm Online or by phone at (602) 494-3444.

Is Reading And Writing A Requirement To Serve On A Jury?

We should all be able to agree if you are charged with a crime, you should get a fair trial. An obvious prerequisite to a fair trial is that the jurors at least understand everything going on in the courtroom. That is, a juror should, at a minimum, be able to comprehend all evidence presented and understand the rules (i.e. the jury instructions) provided by the judge.

What if a juror says to the judge, “I can’t read English” Upon further questioning, you discover the juror can speak (relatively) fluent English, but can’t read or write even one word. When this happened during one of my trials, my first thought was, let’s just get an interpreter. However, this juror spoke an eastern European language for which there was little chance of finding an interpreter on short notice. What should the court do in this situation?

I submit that reasonable minds can disagree on the answer to this question. My stated position, based on his inability to read or write any English, was that he could not be a fair and impartial juror for my client (moreover, I had a feeling this juror, who grew up in a former Soviet bloc country, may not value the presumption of innocence.) I argued that, absent an interpreter, being a juror required the ability to read and write (i.e. jury instructions.) Moreover, how could we ever qualify how much English he really knew? So I motioned to strike him for cause.

The prosecutor took no position. The judge denied the motion. In all fairness, the judge had a reason. He believed we could accommodate the juror by having his judicial assistant read this juror the jury instructions. However, my response was: (1) We can’t tell how much English he really knows without speaking his language; (2) in Arizona, jurors can write down questions to ask a witness. It seemed unlikely that he would get the clerk and have her ask the question; and (3) sometimes there are words that have no translation from English to another language. Not all languages have an adequate vocabulary to translate the concept of “beyond reasonable doubt.” The judge was not persuaded. He denied my motion. My tactic was to now turn towards the prosecutor. I discussed the possible appellate issues, and we agreed he would strike the juror to avoid the issue.

So, after the trial, I did some research, talked with my appellate attorney guru friend and concluded that under Arizona law, the judge may have been in his discretion to keep the juror. It would be a close call. Arizona law would most likely require me to show actual “prejudice” by keeping the juror on the panel. Under Arizona law, this would be almost impossible.

Consequently, if you thought the ability to read was a prerequisite for jury service, then think again. Not only is it a real possibility that your juror may not be able to read, it is also legal.

High Tech Porn Can Mean High Tech Trouble

Law enforcement and prosecutors hear this defense all the time: “it wasn’t me.”  If you went and visited a state prison, you would probably hear a lot of people behind bars say “it wasn’t me.”  Let’s face it: a lot of people will not own up to a crime that they have committed.  Thus, when you hear someone say “it wasn’t me,” your natural assumption is that the person is lying.  However, according an article by Debra Cassens Weiss, a senior writer with the ABA Journal, when it comes to illegal internet pornography, we may need to rethink our assumptions.

Cassens discusses an issue that I have been hearing from experts for the past couple of years.   In her article entitled “Viruses Can Infect Computers with Child Porn, Leading to Legal Charges,” she discusses the growing number of cases when another person hijacks your computer to view or store child pornography.  Cassen’s article states:

Viruses can infect your computer, allowing pedophiles to view child porn when your PC is online or to use your computer to surf child porn sites….An infected computer may be the least of your problems, the Associated Press reports. “An Associated Press investigation found cases in which innocent people have been branded as pedophiles after their co-workers or loved ones stumbled upon child porn placed on a PC through a virus,” the story says. “It can cost victims hundreds of thousands of dollars to prove their innocence.”

AP cites the case of Michael Fiola, a former investigator with the Massachusetts agency that oversees workers’ compensation. An Internet bill for his state-issued laptop showed he was using more than four times the online data of his colleagues. An investigation found child porn stored in a folder that contains images viewed online…Fiola was fired and charged with possession of child pornography. He spent $250,000 on legal fees before prosecutors dropped charges. An inspection of the laptop had found it was programmed to visit as many as 40 child porn sites per minute.’

Consequently, the next time someone says “it wasn’t me,” maybe we need to run a virus check before we assume they are lying.

If you need legal advice for a specific problem, you must consult with an Arizona Criminal Defense Attorney. For more information about Arizona Criminal Law or a specific legal problem, please contact the Koplow Law Firm Online or by phone at (602) 494-3444.

Frequently Asked Questions About Sexual Allegations In Divorce (SAID)

What is S.A.I.D. Syndrome?

Because of the growing number of false sexual allegations in divorce cases the term SAID syndrome was created to identify the problem.

What are some scenarios in which we commonly see false allegations of sexual misconduct with a minor?

(1)The allegation of sexual abuse occurs only after a divorce or other legal proceeding is initiated; (2) Where one of the parents is suffering from some type of trauma or mental illness (which may or may not be diagnosed); and (3) The introduction of a step-parent into the family after a difficult divorce.

What are some things that lead to a person being falsely charged with a sex crime?

(1) When a therapist involved in the situation has little or no experience with sexual assault cases and has made an unsupported conclusion; (2) when the police department investigating the incident does not have extensive experience with sex crimes cases.  Often there is a belief that no one would ever make such false allegations.  However, experienced sex crimes detectives, familiar with S.A.I.D. syndrome, know this is a real issue.  Unfortunately, not all cases are reviewed by fair and experienced sex crimes detectives; and (3) when one of the family members intentionally falsifies the evidence and omits vital information when reporting the incident to the police.

What are some things that can be done if there is a false allegation of sexual misconduct with a minor?

While all cases are different, in general, here are some of the things that we have done in the past to help prove an allegation of sexual misconduct is false.  To start, you need to complete the investigation that the police failed to do in the first place.  First, I recommend bringing on a former sex crimes detective to assist with the case and do an independent investigation.  This will help outline what is required for a proper investigation and determine what else should be done.  Second, we should consider a polygraph test.  It is not uncommon in these cases that police would like you to do a polygraph test.  However, they usually just ask you to go down to the police department and do one of their tests.  I usually recommend a private polygraph test with a trusted professional.  Third, we should also consider a psycho-sexual evaluation.  This is an evaluation by a therapist trained to identify these types of sexual issues.  A positive report from such a professional, combined with the other items listed above may convince law enforcement that they made a mistake or have a problem with the case.

If you need legal advice for a specific problem, you must consult with an Arizona Criminal Defense Attorney. For more information about Arizona Criminal Law or a specific legal problem, please contact the Koplow Law Firm online or by phone at (602) 494-3444.

Frequently Asked Questions About Arizona Drug Crimes

Drug use seems to be a never-ending problem in Arizona.  As a result, we have a never ending amount of people becoming criminals.  If you were sitting in one of Arizona’s courts devoted solely to the resolution of drugs cases, the lines would resemble those at Costco or Sam’s club.  It is common for an Arizona court to handle over 100 drugs cases in a day.  In practical terms, people are being made into felons for drug charges at an alarming rate.  However, not everyone in those lines at court has the same fate.  Not every person charged is convicted.

Here are some frequently asked questions about Arizona drugs crimes:

What does it mean when the State of Arizona says the drugs were over the threshold amount?

When drugs are possessed in sufficient amounts, Arizona law requires mandatory prison.  Each drug has a different specified amount that triggers a mandatory prison sentence.  The specified amount is called the “threshold” amount.  However, simply because you are found with an amount above the threshold that does not automatically mean you are going to prison.  The issues of whether the amount of the drugs found is over the threshold amount is commonly debated and confronted.

What are the most common illegal drugs prosecuted in Arizona?

Marijuana, Hashish, Cocaine, Crack Cocaine, Methamphetamine (meth), Heroin, Opium, LSD, PCP, psilocybin mushrooms, and ecstasy (MDMA).

Is there any way to get a charge of possession of drugs dismissed without a trial?

Obviously, no one can predict how a case will result without all the facts.  However, for possession cases, you may be eligible for diversion.  Diversion requires you to do drug education and monitoring.  If you successfully complete the program then your case may be dismissed.  There are times when people are not initially offered diversion when they are eligible.  This is usually because of incorrect information in the possession of law enforcement.

What does it mean when I am charged with possession for sale by the State of Arizona?

If you have been found in possession of larger amounts of drugs, then the State may claim you possessed the drugs to sell.  The most common example is being found in possession of several pounds of marijuana.  Law enforcement will inevitably claim that this much marijuana was more than needed for personal use.  However, usually more than just mere quantity is needed to support this claim.  Law enforcement will look for what they term “indicia of sale.”  This usually includes items such as scales, baggies, currency, etc…  Unless, of course, the quantity is so great that is not possible that the drugs are for personal use.  For example, if you are found with 100 kilos of cocaine, it unlikely that such an amount is for personal use.

How do you fight the charge of “possession for sale”?

The basis for the State to show you possessed drugs for sale is generally the opinion of a police officer.  The State is going to use the police officer as an “expert.”  The will say that the officer has specialized knowledge in drugs sales and based upon their “expert” opinion, these drugs were possessed for sale.  In my experience, to fight these charges you may need your own expert.  I generally employ a former drug enforcement officer and get my own independent opinion as to whether the drugs were possessed for sale.  Moreover, you also want to examine and possibly challenge the evidence provided to the grand jury that was the basis of the indictment.  The prosecutor must present both sides of the story to a grand jury when then indicate (charge) a person.  If they fail to present clearly exculpatory evidence, then that is a violation of Arizona law.

What if I was just a passenger in a car in which drugs were found?

There is no crime in Arizona of “guilt by association,” but there is something close to it.  Arizona law makes a distinction between ownership and possession of drugs.  You do not have to own drugs to be guilty of possession of drugs.  In addition, more than one person can posses drugs at the same time.  For example, if you are driving a car and a person has drugs in their pocket, it is unlikely that you possessed the drugs.  You did not have access to them, nor could you exercise any control over them.  On the other hand, if you are driving a car and there is three pounds of marijuana sitting on the consol then it may be determined that both you and the passenger “constructively” possessed the drugs.  You both had knowledge and the ability to control the drugs.  However, there will still be a debate as to whether you were “merely present” while someone else possessed the drugs – which is not a crime.

The issues arise when drugs are found in a residence shared by multiple people.

Can I get my drug charges expunged?

Arizona recognizes a manner to help clear someone’s criminal record.  Many states use the term expungement.  However, Arizona refers to this as “setting aside” a conviction.  Moreover, Arizona law also permits the courts to restore someone rights (i.e. vote, etc…) after criminal conviction.

If you need legal advice for a specific problem, you must consult with an Arizona Criminal Defense Attorney. For more information about Arizona Criminal Law or a specific legal problem, please contact the Koplow Law Firm online or by phone at (602) 494-3444.