BACK TO ALL YOU OUT THERE WITH PRIORS

At my firm, we handle all kinds of criminal cases including violations of probation and cases where the defendant has multiple prior felony convictions.  I am always looking out for an opportunity to let you folks know about little nuances in the law especially when it comes to prior felons.  Keep in mind that whenever someone with a prior felony record goes to trial, the State always will try and introduce the defendant's prior history.  A court is allowed to admit a Arizona Department of Corrections "pen pack" as a self authenticating certified copy of a public record pursuant to Rule 902(8) of the Arizona Rules of Evidence during the trial to allow the state to prove a defendant had historical prior felony convictions for sentence enhancement purposes. What the State has to do however is make sure the pen pak has a photograph of the defendant, a fingerprint card and an in state exemplification, or "jurat" .  This is because the signer must be placed under oath swearing or affirming that the contents of the documents are true and correct, rather than merely acknowledging by notarization the authencity of the signature. #randalljcraig #scottsdalecriminallawyer #scottsdalecriminalattorney #scottsdalelawyers #scottsdalecriminallaw #phoenixcriminallawyer #phoenixcrimininalattorney #phoenixlawyers #phoenixtriallawyers #www.phoenixfelonycriminaldefense.com #www.randalljcraig.com

SUPPRESSION OF EVIDENCE PART 3-DUI

In Arizona we have some of the toughest DUI laws in the country.  Suppressing the state's evidence is sometimes the only way to win these cases because the odds are routinely stacked against the defendant.  Recently, the Court of Appeals ruled that a trial court erred in denying  a motion to suppress evidence obtained during a traffic stop.  In essence, the police had noticed the light that illuminated the defendant's license plate emitted a white light actually visible from the rear of the car (rather than merely illuminating the license plate). The Court reasoned such additional visible illumination of a rear license plate does not violate applicable Arizona law under ARS Section 28-931 or 28 925, and a mistake of law in this regard by law enforcement is not objectively reasonable, and  the stop was not based upon reasonable suspicision. State v. Stoll, 2 CA-CR 2015-0280, 5/23/16. #www.phoenixfelonycriminaldefense.com #www.randalljcraig.com #scottsdaleDUI #Scottsdale misdemeanor #scottsdalecriminallawyer #scottsdalecriminalattorney #phoenixcriminallawyer #phoenixcriminalattorney

For All You Out There On Probation

At my firm we handle all kinds of cases including probation matters.  This can easily be one of the most distressing types of criminal matters because the consequences can be so severe to the client.  Think about it.  Somebody makes a mistake in life by committing a crime. The consequence is they get placed on probation.  The probationer is truly remorseful for the crime they committed and sets out to make amends by paying off all restitution and doing exactly what he or she is supposed to do under probation.  Then for some reason the probation officer decides to file a Motion To Revoke Probation. Perhaps the probationer lost his job and could no longer afford to make the restitution payments.   If the Petition To Revoke is granted,  the probationer may go to prison or be reinstated with additional terms. If he is reinstated,this kind of merry go round can continue for years with him constantly be reinstated for additional years, if the State believes constant monitoring is needed.  The Court of Appeals recently decided that a trial court does not err under the Arizona Revised Statutes Sections 13-901 and 902 by revoking a defendant's probation that was previously extended for an additional five years pursuant to Section 13-902(c) for failing to fully pay restitution when he violates other condtions of probation such as drug/alcohol testing because the specific language of the statute authorizes the Court to extend the "period" of probation when a defendant has failed to make restitution and the provision limits the length of any such extension to a five year period.  State v. Turner, 1CA-CR 15-0477, 5/3/16. If you have been accused of a crime call The Law Offices of Randall J. Craig,PLLC at 480 767-0400. You may reach us via the web at #www.phoenixfelonycriminaldefense.com or #www.randalljcraig.com #probation #scottsdalecriminaldefense #scottsdaleattorney #scottsdaledui #phoenixfelonycriminaldefense #randalljcraig #criminal #domesticviolence #aggravatedassault

INTERLOCK UPDATES-DUI ANOTHER VICTORY FOR THE DEFENSE

At the Law Offices of Randall J. Craig, PLLC we handle all kinds of criminal cases including DUI type of offenses. The State of Arizona has some of the toughest DUI laws in the country.  Recently in an aggravated DUI case the defendant was charged with DUI driving related charges. He neglected to have an interlock device installed even though he had been ordered to have it installed on any motor vehicle he was going to be operating for 12 months after or from the date that his driving privilege was reinstated. Here the  new conviction related to the failure to have an interlock device at the time of  the incurring separate/new DUI charges had to be vacated because by its own terms the subject interlock device  order was not yet effective because the defendant's license had not been reinstated. State v. James, 1 CA-CR 15-0002, 4/21/16 #DUIscottsdale #scottsdaleDUI #Scottsdalecriminallawyer #scottsdalefelonylawyer

New website for general phoenix area

Please visit our phoenix website at www.phoenixfelonycriminaldefense.com
#phoenixcriminallawyer #phoenixfelonylawyer #phoenixcriminaldefense

DO NOT JUST CONSENT

Last month we were running articles about the Miranda v. Arizona decision and how such a landmark case has impacted the criminal justice system.  I have been writing about how the system has developed  ways to circumvent the rights afforded by this case. This got me thinking about other kinds of rights afforded to defendants. I have always maintained that a client should never just plead guilty and I say the same thing about giving the police consent.  You should never just consent to a search without the advice of counsel.   Lately, the Arizona Supreme Court in April ruled soundly in State v. Valenzuela, CR-15-0222-PR, 4/26/16 that a driver of an automobile arrested for Driving Under the Influence (DUI) may not voluntarily consent to give samples of his/her blood after an arresting officer advises him/her that "Arizona law requires you to submit" to breath, blood or other bodily substance tests chosen by law enforcement because a showing only that the consent given was in response to such an admonition fails to prove that such an arrestee's consent was freely and voluntarily given as required by the United States Supreme Court's decision in Bumper v. North Carolina.  However, the good faith exception to the Fourth Amendment warrant requirement may allow admission of such blood testing evidence.  If you have been charged with any criminal offense, call The Law Offices of Randall J. Craig at (480) 767-0400. You may also reach us on the web at www.randalljcraig.com, or www.phoenixfelonycriminaldefense.com.  #scottsdalecriminallawyers #scottsdalecriminallaw #scottsdalelawyers #phoenixlawyers #phoenixcriminallawyers #phoenixcriminallaw #www.phoenixfelonycriminaldefense.com

CHILD PROSTITUTION AND POLICE STINGS

At The Law Offices of Randall J. Craig PLLC we handle all kinds of felony offenses and can tell you that in the State of Arizona we have some of the toughest criminal laws in the country.  For instance, child prostitution.  We all have strong feelings against this kind of offense but the laws here do seem to be extremely harsh.  ARS Section 13-3212 (child prostitution statute) providing enhanced and consecutive sentences for anyone convicted of engaging in child prostitution knowing that the person is a minor aged 15,16 or 17 applies to those cases in which the "minor" is an undercover peace officer.  The language of 13-3212(c) provides "it is not a defense to a prosecution" under subsection (B)(2) "that the other person is a peace officer posing as a minor or a person assisting a peace officer posing as a minor."  Ok we all get the intent behind the statute.  Here is the problem.  Can a person legally violate this statute even if they wanted to if the undercover police officer is 21 years of age but happens to look 17.  Criminal defense lawyers like myself know the argument the state always makes, i.e., "we look at the intent of the statute and such is to deter people like Mr. Defendant from abusing minors, etc.  Ok worthy argument but what about impossibility?  If defendant A is in a hotel room with officer B who happens to be 22 years of age, how can defendant A legally and possibly violate any child prostitution law if the officer is an adult?  Regardless of defendant's intent, it is impossible to engage in child prostitution in this scenario.  This gets back to the old law school scenario of if I yell in the middle of the forest whose peace am I disturbing?  If you have been convicted of any criminal offense, call The Law Offices of Randall J. Craig, PLLC at 480 767-0400. You may also reach us via the web at www.randalljcraig.com   or at www.phoenixfelonycriminaldefense.com.     #scottsdalecriminallawyer #scottsdalecriminaldefense #www.randalljcraig.com #scottsdalelawyer

Most recent acquittal at The Law Offices of Randall J. Craig has us thinking

Recently i received an acquittal on behalf of my client on the charge of child molestation in State v. Diaz Martinez, an Arizona case here in Maricopa County.  I took the case over from another attorney who did not engage in much motion practice on the case and did not look into any lesser included offenses of molestation.  It got me thinking about State v. Speers. This was a child molestation/sexual conduct with a minor case, in which the Arizona Court of Appeals ruled that a trial court erred in post conviction proceedings by summarily dismissing a defendant's ineffective assistance of counsel claim based on former counsel's abandonment of a proposed jury instruction on contributing to the delinquency of a minor as a lesser included offense of molestation.  In reviewing the issues, the Court of Appeals agreed that the a abandonment or acquiescence in omission of the lesser-included instruction was not a reasoned choice among strategic options designed to benefit the client yet appeared to have been improperly based on former counsel's beliefs respecting their duty to the court itself, and that former counsel had failed to properly investigate and develop readily available evidence.  If you have been charged with any criminal offense in Arizona, please call us at 480 767-0400. We are located in Scottsdale, Arizona.  You may also reach us at www.phoenixfelonycriminaldefense.com or www.randalljcraig.com.   #phoenixfelonycriminaldefense

Wrapping up Miranda Series

In the last month we have been looking at Miranda and its impact on defendant's rights. Here at The Law Offices of Randall J. Craig, PLLC we are very concerned about any statements a client makes to law enforcement.  As I have stated earlier, the criminal justice system has chipped away at the impact Miranda initially had in protecting your rights to remain silent.  For example in Harris v. New York, the Court held that incriminating statements taken from a defendant after arrest in violation of Miranda could be used for impeachment purposes.  Chief Justice Berger declared that the defendant could not hide behind his apparent perjured testimony on direct examination and provide himself with a shield against contradiction of his untruths.  In Michigan v. Tucker, a case that involved a suspect in a rape investigation who was advised of his rights under Miranda (except his right to appointed counsel) if he was indigent.  The Court ultimately allowed the confession, finding that the failure by police to offer the defendant the full panoply of Miranda rights was not a fatal error.  Citing Harris, the Court  concluded, "This Court has already recognized that a failure to give interrogated suspects full Miranda warnings does not entitle the suspect to insist that statements made by him be excluded in every conceivable context."  In North Carolina v. Butler,  the Court held that an explicit, signed waiver of the rights afforded under Miranda was not essential. It said, in proper cases, an implicit waiver would suffice.  Finally in New York v. Quarles, which established the so called "public safety exception" to the Exclusionary Rule, Associate Justice William Rehnquist, writing for the 6-3 majority, found that an incriminating statement about the locations of a pistol, made by an in custody suspect immediatley following his apprehension was admissable against him despite the failure of the arresting officer to advise the suspect of his Miranda rights.  The Court found that the officer's hasty questioning was "to insure that further danger to the public did not result from the concealment of the gun in a public area."  It should be noted that following the Boston Marathon bombing on April 15, 2013, the U.S. Department of Justice invoked the public safety exception to permit the FBI to question bombing suspect Dzhokhar Tsarnaev without granting him access to counsel. #criminaldefenselawyer #scottsdalecriminaldefense #Scottsdalefelonylawyer #Scottsdalemisdemeanor #scottsdalecriminaldamage #scottsdaledisorderlyconduct #scottsdalerandallcraig, #scottsdalecriminalattorney

     If you have been charged with any criminal offense and you need a criminal defense lawyer, call The Law Offices of Randall J. Craig, PLLC.  You may reach us via the web at www.randalljcraig.com or www.phoenixfelonycriminaldefense.com. You may also call us at (480) 767-0400. #criminaldefenselawyer #criminal

Can the State and Courts Circumvent Your Rights?

All week long I have been discussing the implications of the Miranda decision on the criminal justice system.  Lately there have been numerous cases on Fox News, CNN, MSNBC focusing on police conduct and the implications of such conduct on society.  We know the majority of police out there patrolling the streets are outstanding cops doing their job.  Occasionally, like all professions there are a few bad ones.  Once in awhile a police officer makes a bad stop without probable cause or a warrant.  A suspect is hauled into the police station and interrogated until he confesses.  For starters, the suspect was not doing anything at all. Merely on his way home from work when the officer stopped his vehicle.  Once he is placed inside a interrogation cell he is Mirandized in an attempt by the police to get a confession.  The confession is thought to eliminate the effect of the unlawful stop.  Yes and no.  Here is what you need to know.  Simply giving Miranda warnings will not always admit statements or confessions that were obtained after a Fourth Amendment violation.  Even if the confession or statement is made following a Miranda warning, it can be suppressed if the suspect was arrested without probable cause and without a warrant.  This is because the law requires that such statements be "sufficiently an act of free will to purge the primary taint" under the Fourth Amendment.  There are other factors to consider however. What are those factors?  Glad you asked.  Factors include the temporal proximity of the arrest and the confession, the presence of intervening circumstances and the purpose and flagrance of the misconduct. There are other relevant factors as well.  Here are some examples to make this clear.  The Court has held in a case where there was a warrantless arrest and no probable cause at all, that the defendants confession given six hours after Miranda, should not have been admitted in Court. Here the Court flat out dismissed the idea that the Miranda warnings themselves could somehow purge the bad arrest and cure the Fourth Amendment violations.  On the flip side however, the Court also has said that a suspects "spontaneous" admission of owning drugs found in another persons purse  after he was detained is admissible.  Here the officers believed their warrant might have been erroneous.  The Court however rationalized that the conduct of the police did not rise to the level of flagrant misconduct requiring prophylactic exclusion of the defendants statements.  Which brings me back to my earlier post.  The Court and the State are always willing to characterize a defendant's constitutional protections as elastic to avoid suppressing evidence resulting from unconstitutional conduct by the police.  If you have been charged with a crime, call The Law Offices of Randall J Craig. You may reach us on the web at www.randalljcraig.com or www.phoenixfelonycriminaldefense.com.  We will make sure your rights are protected. #Mirandarights #RJC #Criminaldefense #Law #knowyourrights #domesticviolence #criminaldamage #drugtrafficking #randallcraig #possession #dui #Arizona #phoenix #phx #az #lawyer

MIRANDA NEXT PHASE?

We have been discussing the Miranda v. Arizona case recently and pondering the question of what that case actually does for a defendant who has been charged with a criminal offense.  We have talked about the fact that a suspect who is in custody must be advised they have a 5th Amendment  right to remain silent and that anything they say can be used against them in a court of law.  Moreover, because of Miranda such defendants have 6th Amendment rights to consult with a  lawyer prior to being interrogated, and if they can not afford one, one may be appointed.  Ok, it is routinely asked of me, "can I pick my own lawyer".  The answer is no.  It has long been  established by the Court in State v. Bible, 175 Ariz. 549 that a defendant is not entitled to counsel of choice or even a meaningful relationship with his or her #attorney.  Moreover, what about those situations where a defendant has various assets and would like to hire his own lawyer but the government has seized those assets. Well there is good news and bad news.  In a fairly recent case concerning the right to counsel and the government's pretrial seizure of a defendant's assets, the United States Supreme Court ruled on March 30, 2016, that a defendant has a 6th Amendment right to use her own "innocent" property to pay a reasonable fee for the assistance of counsel.  What say I about "innocent" property?  I will get to that in a minute.  This issue arose in a case entitled Luis v. United States.  A grand jury charged the defendant with paying kickbacks and other crimes.  The Supreme Court found that "the pretrial restraint of legitimate, untainted assets needed to retain a lawyer of choice violates the 6th Amendment.  The majority on the court rationalized and distinguished between tainted funds and innocent funds needed to pay for counsel.  Anyone who has been charged with transporting marijuana should know when funds are not "innocent".  If someone has been charged in such a crime and their car was used to transport the drugs the government swoops in and uses asset forfeiture laws to claim the vehicle.  Any cash found in the car or that has been alleged to have been derived from the drug deal is also swooped up under the asset forfeiture provisions of the law as being "tainted".  However, if there is cash that can be demonstrated having nothing to do with an illegal act, such cash should be termed "innocent" property.  Such funds may be used to retain counsel of choice.
     If you are charged with a crime, call The Law Offices of Randall J.Craig, PLLC at 480 767-0400 in Scottsdale, Arizona. You may also reach us via the web at www.randalljcraig.com or www.randalljcraig.blogspot.com.
     In the coming weeks we will continue to take a hard look at Miranda and examine the governments attempts to limit Miranda's impact on the criminal justice system.  For now, keep in mind the protections under the 5th and 6th Amendments to the United States Constitution and do not ever talk without consulting a lawyer.  

    

WHAT DOES RIGHT TO REMAIN SILENT MEAN?

We recently posted about Miranda and the true implications of such a fundamental and historic ruling that came down in 1966.  As we stated police must warn people in custody prior to interrogation that they have a Fifth Amendment right to remain silent and that anything they say can be used against them in a court of law.  People in custody also must be warned they have a Sixth Amendment right to consult with counsel prior to and during in custody interrogations, and that counsel will be appointed for them if they cannot afford one.  So what does it mean when someone is "in custody"?  The question is routinely asked of me "when do my Miranda rights apply"? The term "in custody" basically means when someone is not free to leave.  This term includes both police station interrogations and any other situation depriving a suspect of their freedom of action in a paramount way.  As I mentioned in an earlier post there are many holes the State has been able to drive through in asserting that Miranda does not apply.  For instance where the defendant made incriminating statements on his tax returns instead of claiming the Fifth Amendment privilege, because nothing suggested he did so by law enforcement's overbearing tactics. It was said  he instead could complete the return at leisure and with legal assistance.  Another instance is when a probation officer interviews a person on probation, the probationer was not then formally arrested, even though the investigation had focused on a suspect.  Lastly in instances where a citizen is questioned by an IRS agent investigating potential criminal tax violations because there is no custodial interrogation occurring.  In the coming weeks we will focus on other instances where this historic ruling has benefited our lives and also left short many questions unanswered.

DO NOT WAIVE YOUR MIRANDA RIGHTS

It is no secret to those practicing criminal defense that in the majority of cases we handle the police obtain a waiver of a suspects Miranda rights.  What you need to know is, once the police obtain a waiver of such fundamental and important rights Miranda offers no real protection.  Once you waive your Miranda rights any statements made are admissible at trial.

Miranda v. Arizona was decided by the United States Supreme Court in 1966.  Most non lawyers have a vague reference to this landmark case.  We have all heard references to it on television and in the news.  But do most people really understand the significance of the case itself? Do most people understand what law enforcement could do before this important decesion was held. The Court decided in Miranda v. Arizona that police must warn people before any in custody interrogation that they have a Fifth Amendment right to remain silent and that any statement they make can be used against them. The rights afforded to people by this decesion do not end there however.  The Court also said that any such person detained must be told they have a Sixth Amendment right to consult with a lawyer prior to being interrogated by the police when in custody and counsel will be appointed for them if they can not afford one.
Through the years I have seen many clients utter those famous words to me: "what about the police violating my Miranda rights? My case should be tossed out".  Well not quite.  Assuming a clear cut Miranda violation exists, the effect of such a violation may or may not help a defendant today.  This is because many later decesions by the Court have limited the Miranda decesion and focused its intent on what role a police officers conduct played in getting a confession.  Nevertheless, statements obtained in violation of Miranda may be precluded from the States case.  Many opportunities for the state to sneak them in exist. For instance, as defense lawyers we often struggle to present our clients story. This becomes troublesome when our client has a prior felony conviction. Once he takes the stand, the jury hears he has a felony background.  Although statements taken in violation of Miranda must be precluded, it may not bar use of voluntary statements for impeachment on cross examination if the defenant takes the stand. Other pitfalls remain. At The Law Offices of Randall J. Craig we will be writing about such openings the state can use in the comming months.
   If you have been convicted of a crime and made statements to the police you may reach us at www.randalljcraig.com. We handle all sorts of crimes ranging from felony drug offenses domestic violence to burglary.  Do not waive your Miranda rights.




   

ANOTHER CASE TO BRAG ABOUT FOR THE DEFENSE

    At The Law Offices of Randall J. Craig PLLC we have tried some large cases here in Arizona, many of them capital cases.  These are very difficult cases in which a defendant’s life is at stake.  Contrary to non death felony cases, these cases present a trifurcated procedure in which there is a guilt phase, an aggravation phase and then the penalty phase. Recently the Court decided that a capital defendant’s pretrial offer to plead guilty in exchange for a natural life sentence is admissible at the penalty phase of trial to show in mitigation their acceptance of responsibility for the murder, a non statutory mitigating circumstance.  Under Arizona Revised Statutes Section 13-751(g) and 752(g) as well as State v. Sansing, acceptance of responsibility by a defendant in a capital case is non statutory mitigating circumstance and a trial court is constitutionally required under the United States Supreme Court’s decisions in Lockett v. Ohio and Eddings v. Oklahoma to admit such proffered evidence. However, any evidence offered to show acceptance of responsibility must also be relevant. Busso-Estopellan v. Mroz and State of Arizona (RPI). If you have been accused of a crime please call our office at 480 767-0400. You may also reach us via the web at www.randalljcraig.com

FINALLY A VICTORY TO BRAG ABOUT

    At The Law Offices of Randall J. Craig, PLLC we handle all sorts of homicide cases and all types of felony cases whereby there is ballistic or firearm evidence.  So many times, the identification of the shooter is at issue. In numerous felony cases, firearms are a key component of the case. Recently, in a murder case here in Arizona evidence alleged to tie the defendant to the murder included six shell casings recovered from the crime scene. In typical fashion, the state’s police firearms expert concluded the casings were fired from the defendant’s firearm.  In a correct ruling by the Supreme Court, it was held that the trial court erred by precluding the defense from offering expert testimony that the firearms examiners used “subjective” rather than scientifically rigorous methods in drawing conclusions from indentions on the shell casings. The Court further found that such methods that are generally used in conventional toolmark analysis fall short of scientific standards for experimental design, because Rule 702 of the Arizona Rules of Criminal Procedure allows an expert witness to testify if, among other things the witness is qualified and the expert’s “scientific, technical or other specialized knowledge will help the trier of fact to understand or give appropriate weight to the evidence. State v. Romero, CR15-0039-PR, 1/20/16. If you have been accused of a crime, you may reach us via the web at www.randalljcraig.com or by calling The Law Offices of Randall J. Craig at 480 767-0400

SHIFT IN THE WRONG DIRECTION?

At The Law Offices of Randall J. Craig we provide criminal defense to those accused of a crime.  Part of that service is finding where the prosecutor or law enforcement has erred in the investigation of the crime itself.  We recently handled a case whereby the the police showed up with their trained dog some 65 minutes after a a car was stopped for transporting narcotics.  It is already settled that a trial court may err by “suppressing evidence” in a drug transportation prosecution in finding a lack of reasonable suspicion for an additional 40 minute detention required to allow a narcotics drug sniff dog to arrive at the scene in a case involving a police officer that is highly experienced in drug interdictions who forms a reasonable suspicion based on the suspect’s suspicious actions/inconsistent statements, his driving a rental car with no personal belongings inside, his extensive criminal history involving transporting drugs, and the presence of unmarked and sealed shipping boxes with “very solid weight” consistent with drug packages in the trunk of defendant's vehicle that defendant refuses to allow the officer to open.

IF YOU HAVE PRIOR FELONY CONVICTIONS LISTEN UP.

    At The Law Offices of Randall J. Craig, PLLC we handle numerous criminal cases around the Phoenix, Arizona area.  These cases range from homicide & drugs to general burglary cases. Sometimes a defendant has numerous prior felony convictions that can add numerous years onto a potential sentence.  The Arizona Court of Appeals recently ruled that a trial court does not abuse its discretion in admitting an Arizona Department of Corrections (ADOC) “pen pack” as a self authenticating, certified copy of a public record pursuant to Rule 902(8) of the Arizona Rules of Evidence to prove a defendant had historical prior felony convictions for sentence enhancement purposes where the pen pack also included a photograph of the defendant, a fingerprint card, and an in state exemplification or “jurat” that exceeds the requirement of the rule because the signer “must be placed under oath swearing or affirming that the contents of the documents are true and correct”, rather than merely acknowledging by notarization the authenticity of the signature. State v. Solis, 2 CA-CR 2014-0084, 11/26/14

Burglary is what?

NOW THAT IS STRETCHING, OR IS IT?

    At The Law Offices of Randall J. Craig, we handle all sorts of criminal cases, especially burglary cases. Here is some latest case law we found interesting. The act of removing property from the open bed of a pickup truck constitutes “entry of a structure under the Arizona burglary statutes. The term “entry” under ARS Section 13-1501(3) means “the intrusion of ...any part of a person’s body inside the external boundaries of a structure.” Furthermore, pursuant to Sections 13-1501(12), a “structure” can include “any building, object, vehicle, railroad car or place with sides and a floor that is separately securable from any other structure attached to it and that is used for lodging, business, transportation, recreation or storage”, while under Section 13-105(41) a “vehicle” is a device in, upon or by which any person or property is...transported or drawn upon a highway.” The act of reaching into a truck bed amounts to an intrusion beyond the external boundaries of the structure because the sides of a truck bed provide the external boundary for that part of the vehicle.  State v. Bon, 2 CA-CR2014-0054, 11/28/14.

No Peremptory challenges

THE COURT OF APPEALS SAYS NO PEREMPTORY CHALLENGES IF YOU WANT TO CHANGE YOUR JUDGE
    At the Law Offices of Randall J. Craig our criminal cases consist of numerous issues. Sometimes a change in the trial judge is necessary.  Recently the Court of Appeals ruled however that a trial court’s denial of a defendant’s Rule 10.2 Ariz.R.Crim.P., request for peremptory change of judge may not be challenged on direct appeal and must be reviewed by special action.  In reviewing the issue, the Court of Appeals analogized the Arizona Supreme Court’s decision in Taliaferro in the context of a civil action, where the Court had reasoned that a peremptory change of judge essentially is a “matter of grace” that could be converted to “a trump card which would later destroy the validity of the entire proceeding.”  The Court of Appeals found that once a defendant has been convicted and sentenced, “it is too late in the day to be worrying about who tried the case, short of true challenges for cause.” State v. Ingram, 2/11/16.

UPDATES IN CRIMINAL LAW

I have been practicing criminal law for over twenty years.  At The Law Offices of Randall J. Craig we handle quite a few murder cases but this latest ruling has us shaking our head.  The Supreme Court ruled that a trial court did not err by entering a summary dismissal in a Rule 32 post conviction relief (PCR) matter related to a double homicide committed by a 17 year old. The PCR maintained there was newly discovered evidence  regarding recent scientific findings concerning juvenile psychology and neurology. The United States Supreme Court had held that the Eighth Amendment bars certain sentences for juvenile offenders when there was newly discovered evidence but here the Court ruled that the sentencing court had considered/contemplated similar evidence at the time of sentencing the defendant in 1993, whereby the alleged new evidence could not have changed the outcome.  State v. Amaral, CR-15-0090PR, 2/4/16

Probable Cause and You

PROBABLE CAUSE REVIEW AS EXPLAINED BY THE SUPREME COURT

    People are always confused about their rights to a hearing whenever they are wrongly arrested. The prompt probable cause review required by constitutional due process is explained by the United States Supreme Court in Gerstein v. Pugh:

...At common law it was customary, if not obligatory, for an arrested person to be brought before a justice of the peace shortly after arrest.  The justice of the peace would examine the prisoner and the witnesses to determine whether there was reason to believe the prisoner had committed a crime.  If there was, the suspect would be committed to jail or bailed pending trial.  If not, he would be discharged from custody  The initial determination of probable cause also could be reviewed by higher courts on a writ of habeas corpus.  This practice furnished the model for criminal procedure in America immediately following the adoption of the Fourth Amendment and there are indications that the framers of the Bill of Rights regarded it as a model for a “reasonable” seizure.

Both the standards and procedures for arrest and detention have been derived from the Fourth Amendment and its common law antecedents.  The standard for arrest is probable cause, defined in terms of facts and circumstances “sufficient to warrant a prudent man in believing that the suspect had committed or was committing an offense.”  This standard, like those for searches and seizures, represents a necessary accommodation between the individual's right to liberty and the state's duty to control crime.

The point of the Fourth Amendment which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence.  Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.

Probable Cause Flux

Probable Cause Generally

   Here is the general scenario how police officers make arrests.  A crime has been committed.  A police officer plans to make an arrest based on an investigation.  The Constitution requires the officer to present a sworn statement before a detached magistrate in order to determine probable cause.  This is what that means:  a magistrate, without any bias or attachment to the parties involved, must review the facts of the investigation to determine the suspected culprit more than likely committed the crime before an officer may constitutionally arrest a suspect.  This process results in an arrest warrant.  However, sometimes circumstances arrive when an officer is called to the scene of an ongoing crime or witnesses a crime in which the officer must make an arrest to protect the peace.  The officer must, however only make the arrest if there is probable cause the  arrestee committed the crime.  An officer cannot arrest someone for less than probable cause, e.g.,:spite.  However, because the officer is not a detached magistrate, the US Constitution still r that a magistrate determine probable cause after an arrest made without a warrant.  This is to prevent circumventing the arrest warrant protection afforded all US citizens.

    The United States Supreme Court in County of Riverside v. McLaughlin lays out a rule whereby the government is presumed to have promptly brought an arrestee before a magistrate for a probable cause review when the arrestee receives a probable cause review within 48 hours of a warrantless arrest.  The Supreme Court’s opinion was that a probable cause review held within 48 hours of a warrantless arrest places the burden on the arrestee to show a lack of promptness, i.e, the government violated its duty and your right to a prompt probable cause review.  And, when an arrestee is brought before a magistrate, after 48 hours the government is presumed to be in violation of its duty and your right to a prompt probable cause, which would then require the government to show extraordinary circumstances prevented a more prompt probable cause review

    Here are four instances where government action is in disregard to the rule.

   1)When a court resets the date of a probable cause review without the arrestee’s consent because the arresting officer is not present.

  2)When, in a most peculiar circumstance, an arrestee is given a bond hearing in lieu of a probable cause review-one would not need a bond if one were not confined due to an illegal arrest.

  3)When no effort is made at all to bring an arrestee before a magistrate for a probable cause review within 48 hours.

  4)When an arrest warrant is taken out after the arrest, while the defendant sits in confinement, purposely not brought before the magistrate to contest the officer’s testimony-an officer who now has an interest in ensuring his actions are seen as constitutional after the fact.

Do not just plead guilty

    As a trial lawyer I have had the opportunity to see it all in the courtroom over the years.  Many times I have seen defendants just plead guilty during their arraignments.  In a 2011 report issued by the National Association of Criminal Defense Lawyers entitled Three Minute Justice: Haste and Waste in Florida’s Misdemeanor Courts, a number of problems in that state’s misdemeanor courts were outlined.  It was also found that many defendants simply pled guilty during their three minute  arraignments.  I and my fellow attorneys, especially here in Arizona have observed the same thing going on in the municipal courts.

    The most common problems in misdemeanor courts appear to be that defendants do not receive court-appointed counsel.  Those defendants in a criminal case are then encouraged to plead guilty without the advice of counsel.  Here is the problem, many judges do not believe  counsel is needed in many cases.  Their dockets move quicker without court appointed lawyers.  A guilty plea at arraignment also reduces the number of court appearances that a defendant will make.  That in turn moves the docket along.  Here is the real travesty.  Many judges, prosecutors and unrepresented defendants believe that because it is “only a misdemeanor,” defendants do not need an attorney for sentences of time served, a fine payment or probation.

    Do not just plead guilty.  In the State of Arizona, misdemeanors carry a potential sentence of 6 months in jail and a $2,500 fine.  Even in those cases where a jail sentence is unlikely, a criminal conviction can harm a person’s ability to gain employment or attend certain schools.  Any misdemeanor conviction is a criminal conviction so please be careful before you just plead guilty.