Arizona Legal Brief » Criminal Law Case Updates

November 6, 2009 – Arizona Court of Appeals CA-CR 2009-0047 – State of Arizona v. Adam Scott King – “Self Defense” as a Defense (from elegal)

JamesCork — Tue, 10 Nov 2009 23:38:13 +0000

Technorati Tags: Arizona Criminal Defense,Self Defense in Arizona,Arizona Revised Statutes

November 6, 2009 – 2 CA-CR 2009-0047 – State of Arizona v. Adam Scott King
Must a defendant establish he had acted solely out of fear of imminent danger in order to obtain a self-defense instruction, a requirement imposed by case law but not Arizona’s self-defense statute, A.R.S. § 13-404; and if so, what is the quantum of evidence required to obtain such an instruction? Did the trial court abuse its discretion by granting the defendant’s motion for new trial on the ground the court had denied a requested self-defense instruction after finding the defendant had failed to produce "sufficient evidence" he had acted solely out of fear of imminent danger? Read Opinion

July 28, 2009 – From Arizona Court of Appeals, Division 1 – State v. Childress – Unreasonable search and seizure

JamesCork — Mon, 09 Nov 2009 22:22:37 +0000

Click the link to read the case opinion: State v. Childress

The issue presented is as follows:

Did the order to Childress to move his truck and then to talk to Childress
when the officer made a traffic stop of another driver violate the Fourth
Amendment?

Technorati Tags: DUI,Search and Seizure,Constitution,Unreasonable search and seizure,Arizona Court of Appeals,Arizona DUI,4th Amendment

This case is a good contrast to the previously posted DUI search and seizure case (State v. Canales) This case provides a detailed description of when a 4th amendment search and seizure is reasonable based on balancing the defendant’s constitutional rights against the general interest of crime prevention and the officer’s concern for his own safety (as cited in the case from Terry v. Ohio).

Here again the “devil is in the details” had Childress initially stopped and parked in the parking lot in front of the officers then this case may have come out differently for Childress. The Court found that there was a “search and seizure” (seizure occurs when the objective individual would not reasonably feel free to decline the officer’s requests or otherwise terminate the encounter) under the fourth amendment by the officers instructing Childress to move his vehicle to where they could see it.

However, the court also found that the search and seizure was reasonable (remember the Fourth Amendment protects us from unreasonable search and seizure). In most cases the State claims the search and seizure is reasonable because the officer has a reasonable, articulable suspicion a person is involved in criminal activity. I.E. (for DUI) did not stop at stop sign, failure to stay in one lane, speeding, etc… Those are generally their “reasonable suspicion” to detain. The subsequent portable breath test, Field Sobriety Tests, HGN Tests are their probable cause to arrest. In addition you almost always see in the police report “officer observed driver had watery and bloodshot eyes and officer detected the faint scent of alcohol coming from the vehicle.”

Here, the Court found the seizure was reasonable based not on the fact that officers had a reasonable, articulable suspicion that Childress was involved in criminal activity but instead based on the fact that an officer may conduct a protective stop or seizure on officer safety grounds when justified by a reasonable, articulable suspicion that a third person poses a danger to those on the arrest scene combined with the fact that an officer may stop a person who appears to have firsthand material information about a recently committed crime.

In my opinion this case was handled well by both law enforcement on the scene and the State in presenting its case. However, it does make me a little wary in that it seems to broaden what is considered a reasonable seizure under the fourth amendment. Although on the flip side, this case would only be relevant under a particular set of circumstances.

For more on

Technorati Tags: DUI,Search and Seizure,Fourth Amendment,Constitutionn,Arizona DUI law

See our website www.phoenixarizonalaw.com

If you or someone you know is charged with DUI contact our office 480-626-4881

James Cork

Attorney at Law

RECENT ARIZONA & 9TH CIRCUIT COURT OF APPEALS DECISIONS – FROM ELEGAL.

JamesCork — Tue, 27 Oct 2009 23:49:04 +0000

Technorati Tags: dui Arizona,dui cases,Opinions,Arizona Court of Appeals,dui law Arizona

Arizona Court of Appeals

October 22, 2009 – CR 08-0517 – State v. Lychwick
An injunction against harassment is effective for "one year." In calculating that time, is the date of service included? Read opinion.

October 13, 2009 – 2 CA-CR 2009-0023 – State of Arizona v. Marcos Adrian Canales
(REASONABLE SUSPICION/PROBABLE CAUSE ISSUE IN DUI CASE) When a police officer blocks in another vehicle with his patrol car, does this constitute a detention for Fourth Amendment purposes? Is an anonymous tip about "possible" criminal activity sufficiently reliable to support reasonable suspicion to make such a detention? Read opinion.

This is an interesting case in that it provides several case cites and useful information for attorneys regarding reasonable suspicion to detain based on anonymous tips. The Court does not address the issue of probable cause to arrest as they find the reasonable suspicion issue dispositive in determining the case. Personally, I think that if they had gotten past the reasonable suspicion issue there would have been probable cause for the arrest based on the facts and Mr. Canales would have faced a very different outcome.

I also think Mr. Canales got very lucky (and had an extremely competent attorney). Something else I found interesting is, that if you look at the footnotes, the State never filed a response on the reasonable suspicion issue and never attempted to identify the anonymous caller. Frankly, I am surprised by that. In my experience, the State doesn’t drag their feet on DUI cases especially when you are talking about a possible aggravated/felony DUI (A.R.S. 28-1383(A)(1) and/or (A)(2) suspended license and priors).

If you have questions about Arizona DUI Laws or are in need of DUI/DWI Defense representation feel free to visit our website at www.phoenixarizonalaw.com or www.dui.phoenixarizonalaw.com

Law Office of James Cork PLLC

James Cork

Attorney at Law

9th Circuit Court of Appeals

October 26, 2009 – No. 08-10081 – US v. Rivera-Alonzo
Defendant’s conviction and sentence for assaulting a federal officer with a dangerous weapon is affirmed where: 1) a district court does not abuse its discretion in refusing to give an instruction on a lesser included offense, where, as here, a rational jury could not have convicted the defendant of the lesser-included offense without finding the element that would convert the lesser offense into the greater offense; and 2) the district court did not commit clear error in finding on sentencing that defendant’s conduct was motivated by the victim’s official status. Read opinion.

October 22, 2009 – No. 07-50105 – US v. Van Alstyne
Defendant’s mail fraud and money laundering convictions are affirmed in part where returning certain victims’ investment in defendant’s scheme was intended to "promote the carrying on," of the "scheme" at the heart of the mail fraud counts, by discouraging detection of that scheme. However, they are reversed in part where another transaction that fully refunded one investor’s outlay could not be regarded as a crucial element of the "scheme to defraud." Defendant’s sentence is vacated where the district court erred in calculating the enhancement to the money laundering sentence under U.S.S.G. section 2S1.1, in determining defendant’s fraud offense level under U.S.S.G. section 2F1.1(b)(1), and in imposing the restitution requirement. Read opinion.

Search and Seizure – Arizona v. Gant from the U.S. Supreme Court

JamesCork — Mon, 12 Oct 2009 23:05:23 +0000

New case on criminal procedure and search and seizure.

Defendant Gant was arrested for driving on a suspended license, handcuffed, and locked in a patrol car before officers searched his car and found cocaine in a jacket pocket. The Arizona trial court denied his motion to suppress the evidence, and he was convicted of drug offenses. Reversing, the State Supreme Court distinguished New York v. Belton, 453 U. S. 454—which held that police may search the passenger compartment of a vehicle and any containers therein as a contemporaneous incident of a recent occupant’s lawful arrest—on the ground that it concerned the scope of a search incident to arrest but did not answer the question whether officers may conduct such a search once the scene has been secured. Because Chimel v. California, 395 U.S. 752, requires that a search incident to arrest be justified by either the interest in officer safety or the interest in preserving evidence and the circumstances of Gant’s arrest implicated neither of those interests, the State Supreme Court found the search unreasonable.

Held: Police may search the passenger compartment of a vehicle incident to a recent occupant’s arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest. Pp. 5–18.