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Hiding In Plain Site
Criminal Charges for Sexting?
PRECHARGE DUI MISDEMEANOR AND DUI FELONY CASES
Sexual Predator vs. Sex Offender
Identity Theft
Search and Seizure
Weigh
in on the Fourth Amendment
SEARCH AND SEIZURE
As defined by the U.S. Constitution: The right of the people to be secure in their
persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated; and no Warrants shall issue
but upon probable cause, supported
by Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized.
Any law enforcement officer in
Arizona will be the first to tell you that during an arrest they have been
permitted to search the passenger compartment of vehicles and the Supreme Court
has allowed it. The Supreme Court ruling
was based on the 1981 case New York v.
Belton. Police began the searches
that were termed “incident to arrest.”
This decision was based and started as a protective method in case there
was a hidden weapon in the vehicle. Law
enforcement officers would tell you they felt safer and believed the community
was safer as well.
What
precipitated this change? On August 25, 1999,
Tucson, Arizona police officers returned to a house they had visited earlier in
the day where they suspected drugs were being sold. After contacting a man and
woman near the house and placing them under arrest, they observed a vehicle
pull into the driveway at the house.
Officers recognized the driver as Rodney Gant a subject they had
contacted earlier in the day. The
subject Gant had a warrant for his arrest for driving on a suspended license
and was again observed driving on a suspended license. The officers immediately arrested Gant and
handcuffed him. He was subsequently
locked in the backseat of a police vehicle. Officers searched Gant’s car, found
a gun, and discovered a bag of cocaine in the pocket of a jacket on the
backseat. Gant was charged with possession of a narcotic drug for sale and
possession of drug paraphernalia.
In Court Gant moved to suppress the
evidence seized from his car on the ground that the warrantless search violated
the Fourth Amendment. The trial court denied the Motion to Suppress and Gant
appealed. Eventually, the Arizona Supreme Court concluded that the search of
Gant’s car was unreasonable within the meaning of the Fourth Amendment. The
State of Arizona appealed that decision to the United States Supreme Court.
In the years since the Belton case,
many courts, had interpreted Belton to create a rule that searches of an
automobile’s passenger compartment incident to arrest were reasonable
regardless of whether there is a possibility of an arrest getting access to a
weapon or evidence in the car. Thus, the rule widely taught was that even if an
officer removes an arrest from a vehicle, places them in handcuffs and moves
them back away from the car, the vehicle could still be searched incident to
arrest because of the chance that the arrest would break free from the officers
and get back inside the vehicle to obtain a weapon.
In Gant, the Supreme Court
makes it clear that this is no longer the law. The Supreme Court has now clarified that a
search incident to arrest of an automobile is authorized only when “the arrestee
is unsecured and within reaching distance of the passenger
compartment at the time of the search” or when it is “reasonable to believe evidence
relevant to the crime of arrest might be found in the vehicle.” The Supreme Court notes that when the
crime committed is only a traffic violation, there will be no evidence relevant to the crime of arrest and
no search can be conducted.
Do you think this is a positive decision for individual
rights? Do law enforcement officers need
searches “incident to arrest” for their protection? This is a very
controversial issue that has been in and out of the Court system for
years. Please feel free to add your
comments to this discussion.
ARE YOU IN THE CYCLE OF VIOLENCE?
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Criminal Process
So for those of you, who think the criminal process is boring, please bear with me because I get numerous questions about the process and so here it is. Please remember I am not an attorney and am recalling this process as a prior probation officer, so it may have errors. I am including some things from statute as it pertains to Arizona law as well as resources used as a prior probation officer. Each state is different, so check your states statute for items that may differ. When a person is arrested he/she will go through the following process:
v Initial Appearance: Four important events take place. This is the first time a suspect appears in court. An initial appearance for a person in custody must be held within 24 hours of arrest. Prior to this proceeding they will be interviewed by the Probation Departments Pretrial Services Unit. They will assist the Court in determining release status. They often verify the subjects address and employment when possible and call relatives when available. They check for any prior criminal history including current or prior (probation or parole, please note below the difference between probation and parole) and most important any history of violence. The Court will (1) inform the subject of the felony allegations. Decide, after reviewing the report how a person should be released and (2) appoint an attorney for those who are indigent (cannot afford an attorney). (3) The Court sets conditions of release. A person could be released on their own recognizance. This means the Court believes they are not a flight risk and all factors determine they will report to all future Court proceedings and they are a low risk to reoffend. As you all know there is no real way of knowing and some subjects have been released and gone back out and committed another crime. The Court does what they can to verify the information and makes the best possible decision regarding release. It has been my experience the court views the safety of the community as number one priority. The Court could place a person on supervised release. The subject would be required as directed to contact the Pre-trial service division sometimes on a daily basis. They also have officers who visit them in their homes and supervise their release while reporting back to the Court any problems. The judge could place a bond or hold a person without bond. I will list below the Arizona statute regarding these offenses as well as the ones that often go without bond. A summons with the date and time of the initial appearance is sent to individuals not in custody. (4) At the conclusion of the initial appearance hearing another court date is set for the next proceeding, usually in Justice Court or Superior Court.
This information is taken directly from the Arizona Revised Statute, Title 13.
13-601. Classification of offenses
A. Felonies are classified, for the purpose of sentence, into the following six categories:
1. Class 1 felonies.
2. Class 2 felonies.
3. Class 3 felonies.
4. Class 4 felonies.
5. Class 5 felonies.
6. Class 6 felonies.
B. Misdemeanors are classified, for the purpose of sentence, into the following three categories:
1. Class 1 misdemeanors.
2. Class 2 misdemeanors.
3. Class 3 misdemeanors.
C. Petty offenses are not classified.
A felony charge is initiated by a complaint or an indictment. A prosecutor files a direct complaint in court, citing which crimes were allegedly committed. An indictment is issued by a grand jury, which determines from evidence presented by a prosecutor that a crime was committed and the suspect should stand trial on the allegations. Both a direct complaint and indictment define the alleged crimes and cite the date of offense and which laws were violated.
The defendant is notified when criminally charged and informed when to appear for the next court date. A judge can issue an arrest warrant if information is presented to indicate the person will not voluntarily appear in court at the scheduled time.
v Preliminary Hearing: A preliminary hearing is required when a felony case is initiated by a direct complaint. The prosecutor presents evidence and witnesses to try to establish probable cause that the crime was committed and the defendant should stand trial. Generally, a preliminary hearing is held in Justice Court, but it may be held in Superior Court. The judge can dismiss the case for insufficient evidence or order a trial.
v Grand Jury: Another method for initiating charges against a defendant is a grand jury indictment. The grand jury, comprising 16 jurors, determines whether probable cause exists based on evidence presented by the prosecutor. Grand juror proceedings are secret and their actions become public only through the indictment, if one is handed up.
v Arraignment: This brief Superior Court hearing is the defendant's opportunity to enter a plea to the charges. If the defendant enters a "not guilty" plea, a court date will be set. If the defendant enters a "guilty" plea, a sentencing hearing will be scheduled.
v Trial: In a criminal trial, the state must prove beyond a reasonable doubt that the defendant committed the crime. Superior Court juries have either eight or twelve jurors depending on the nature of the charges. A verdict must be unanimous or a mistrial can be declared and the case could be retried. On rare occasions, instead of having a jury trial, the defendant and prosecutor agree to a bench trial and ask a judge to determine the verdict. In a case where a not guilty verdict is reached, the charges are dismissed and the defendant cannot be retried on the same charge. This is called "double jeopardy."
v Sentencing: A defendant who is found guilty faces a range of possible sentences for the crime. When a verdict is returned, the judge sets a sentencing date within about 30 days. At this time in most cases unless the Court waives the order, a presentence investigation is conducted through the Probation Department. In an investigation for a presentence report, the adult probation officer shall inquire into the circumstances of the offense, the convicted person's history of delinquency or criminality, social history, employment history, family situation, and economic status. They also investigate the defendant’s ability to contribute to reimbursement for the costs of the person's legal defense, education and personal habits. The presentence report shall contain a recommendation by the officer regarding contribution by the convicted person toward the costs of legal defense. The officer will inquire into the physical, emotional and financial impact of the offense has had on the victim and the emotional and financial impact of the offense on the immediate family of the victim. The officer notifies the victim or the immediate family of the victim of the right to appear personally or by counsel at any aggravation or mitigation proceeding (this writer will address aggravating and mitigating circumstances at this articles conclusion). At a sentencing hearing, both the defense and the prosecution can present evidence to help the judge determine an appropriate sentence. Victims have the right to address the court on what they believe would be a proper sentence.
Ø Arizona law provides for the death penalty in first-degree murder cases that are especially cruel, heinous or depraved.
Ø Life imprisonment is also an option for murder convictions. The severity of crimes determines the length of sentences.
Ø Sentences of one year or less are served in the county jail.
Ø Sentences of more than one year are served in a state Department of Corrections facility.
Ø For less severe cases, a defendant may be sentenced to a term of probation. The court may impose conditions of probation that could include jail time, community service and counseling. Defendants may also be ordered to pay restitution to their victims.
Ø The options available to trial Court include imprisonment, or various types of probation.
13-901 probation
PROBATION - The release into the community of a defendant who has been found guilty of a crime, typically under certain conditions, such as paying a fine, doing community service or attending a drug treatment program. Violation of the conditions can result in incarceration. In the employment context, probation refers to the trial period some new employees go through.
Arizona parole Article 2 section 31-411
PAROLE - Any form of release of an offender from imprisonment to the community by a releasing authority prior to the expiration of his sentence, subject to conditions imposed by the releasing authority and to its supervision, including a term of supervised release. 18 USC Congress has abolished parole for people convicted of federal crimes, but most states still offer parole. GRAY C FLOOR AMENDMENT SENATE AMENDMENTS TO S.B. 128.
