Category Archives: Criminal

GPS Tracking Devices and the 4th Amendment

A GPS tracking device can provide great peace of mind if you install one on your teenage son or daughter’s car. However, you have no peace of mind if a police officer installs one on your car without your knowledge and without first obtaining a warrant. The Supreme Court of Arizona dealt with this issue in State v. Jean (Jan. 3, 2018) which is found here http://www.azcourts.gov/Portals/0/OpinionFiles/Supreme/2018/State%20v.%20Jean%20Opinion.pdf   David Velez-Colon and defendant Jean shared the driving of a commercial tractor-trailer from Georgia to Arizona. See Id., ¶ 2. Arizona DPS officers in Phoenix became suspicious and learned that the trailer was reported stolen and the truck was registered to Velez-Colon. See Id. Suspecting that the vehicle was being used to transport drugs, DPS officers installed a GPS tracking device on the truck without obtaining a warrant. See Id. The officers monitored the truck’s movements with GPS for about thirty-one hours over three days. See Id., ¶ 3. Assisted by the GPS location data, a DPS officer stopped the vehicle around 4:00 a.m. on February 19 after it reentered Arizona. Id., ¶ 4. Officers searched the trailer and found 2140 pounds of marijuana. See Id. The trial court denied Jean’s motion to suppress, reasoning that Jean, as a passenger, did not have standing to object to the State’s use of the GPS tracking device on the truck owned by Velez-Colon. Id., ¶ 6.  Jean was found guilty and sentenced to ten years in prison. See Id. The Arizona Court of Appeals affirmed. See Id., ¶ 7. The Supreme Court of Arizona granted review to determine whether the warrantless GPS tracking constituted a search and violated Jean’s rights under the Fourth Amendment, and if so, whether the evidence gathered there from should be excluded. See Id., ¶ 8. The Court held that a passenger could challenge the GPS monitoring as a search and that the duration of the government’s GPS monitoring did not determine whether it constituted a search. See Id., ¶¶ 32, 34, 37. In the Court’s words:   “By holding that Jean, like the owner Velez-Colon, can challenge the GPS monitoring as a search, we reaffirm the protections embodied in the Fourth Amendment against warrantless government surveillance. Requiring such searches generally to be supported by a warrant based on probable cause does not unduly burden the government’s interests, particularly because this requirement already applies with respect to the person who owns or lawfully possesses the vehicle. Treating such surveillance as a search as to passengers protects the privacy interests of both those who own or possess the vehicle and those who travel with them. Cf. United States v. U.S. District Court (Keith), 407 U.S. 297, 314-15, 321 (1972) (balancing governmental and privacy interests in concluding, categorically, that surveillance for domestic security purposes should be subject to “the customary Fourth Amendment requirement of judicial approval prior to initiation of a search or surveillance”). . . “ Id., ¶ 37. Originally found on http://www.azcourts.gov/Portals/0/OpinionFiles/Supreme/2018/State%20v.%20Jean%20Opinion.pdf If you or a loved one is charged with a crime where GPS monitoring is part of the evidence, you need an experienced attorney to help you. Criminal Attorney Gary Rohlwing has over three … Continue reading

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Arizona’s Aggravating Circumstances Law: Part 1

Arizona has 26 aggravating circumstances that a trier of fact shall determine and the court shall consider when sentencing a person convicted of a felony according to A.R.S. § 13-701(D). Every circumstance except circumstance 26 is a fact about the defendant’s criminal history, the defendant’s conduct, the victim, or the felony. Circumstance 26 is a catch-all for the prosecutor to use if the other aggravating circumstances don’t apply. This blog post will discuss aggravating circumstances that are facts about a defendant’s criminal history and conduct. Aggravating circumstances that are facts about a defendant’s criminal history are: The court determines that the defendant was previously convicted of a felony within the ten years immediately preceding the date of the offense. (aggravating circumstance (11). The defendant was convicted of negligent homicide, manslaughter, second degree murder or aggravated assault arising from an act that was committed while driving a motor vehicle and the defendant’s alcohol concentration at the time of committing the offense was 0.15 or more. (aggravating circumstance (16)). The defendant was convicted of one or more of the following federal crimes: unlawfully bringing aliens into the U.S., bringing in and harboring certain aliens, improperly entering the U.S. as an alien, reentering the U.S. as an alien, or importing an alien for an illegal purpose at the time of the commission of the offense. (aggravating circumstance (21)) During or immediately following the commission of the offense, the defendant left the scene of a car accident involving death, physical injuries or vehicle damage, or did not give information and assistance following a car accident during or immediately following the commission of the offense. (aggravating circumstance (23)) ‘ The defendant was convicted of sex trafficking or trafficking of persons for forced labor or services or child sex trafficking and the defendant recruited, enticed or obtained the victim from a shelter that is designed to serve runaway youth, foster children, homeless persons or victims of human trafficking, domestic violence or sexual assault. (aggravating circumstance (24)). The defendant was convicted of aggravated assault and there is evidence that the defendant committed the crime out of malice toward a victim because of the victim’s employment as a peace officer. (aggravating circumstance (25)). Aggravating circumstances that are facts about a person’s conduct are: Infliction or threatened infliction of serious physical injury, except if this circumstance is an essential element of the offense of conviction or has been utilized to enhance the range of punishment. (aggravating circumstance (1)). Use, threatened use or possession of a deadly weapon or dangerous instrument during the commission of the crime, except if this circumstance is an essential element of the offense of conviction or has been utilized to enhance the range of punishment. (aggravating circumstance (2)). At the time of the commission of the offense, the defendant was a public servant and the offense involved conduct directly related to the defendant’s office or employment. (aggravating circumstance (8)). The defendant was a personal representative, guardian, conservator, or trustee under Title 14 and the offense … Continue reading

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Arizona’s Opioid Crisis – Why You May Need a Criminal Lawyer

On June 1, 2017, the Arizona Department of Public Health issued a News Release that stated: The Arizona Department of Health Services today released its latest data on opioid overdoses in Arizona showing the highest number of deaths in ten years. In 2016, 790 Arizonans died from opioid overdoses. The trend shows a startling increase of 74 percent over the past four years. . . . Key findings from the report include: An average of two Arizonans die each day from an opioid overdose. Opioid overdoses and deaths are steadily increasing each year with 2016 showing the highest number of deaths. In 2016, 790 Arizonans died from an opioid overdose. Heroin deaths have tripled since 2012. In the past decade, there were 5,932 people who died from opioid-induced causes. Arizona opioid death rates start to rise in the late teens and peak at age 45-54. The opioid death rate drops significantly above the age of 65. There is a significant impact on the healthcare system. Opioid-related hospital encounter rates have increased by 300 percent over the past decade. Arizonans are requiring more doses of naloxone to reduce opioid overdose deaths. While the majority of deaths occur in metropolitan areas, rural areas have the greatest challenge in responding to opioid overdoses. Read more on the AzDHS.gov website here.   On June 5, 2017, the Office of the Governor Doug Ducey issued a News Release about his emergency declaration concerning the opioid crisis: Governor Doug Ducey today signed an emergency declaration to address the growing number of opioid deaths in our state. As the number of opioid overdoses and deaths increase at an alarming rate, we must take action. It’s time to call this what it is — an emergency,” said Governor Ducey. “Most of us know someone impacted by substance abuse — our family, our friends, our neighbors. Our hearts ache for them, but that isn’t enough. We must do more. I’m declaring a statewide health emergency because we need to know more about the epidemic, including enhanced data that illustrates when and where these overdoses occur so that we can develop real, targeted solutions. Read the full release on AzGovernor.org. The emergency declaration directed that the State of Arizona Emergency Response and Recovery Plan be used to direct and control State and other assets, and authorize the Director of the Arizona Department of Emergency and Military Affairs to coordinate State assets. It authorized the Director of the Arizona Department of Health Services to coordinate all matters pertaining to the public health emergency response of the State. It required the Director of the Arizona Department of Health Services to consult to the Governor on identifying and recommending the necessary elements for an Enhanced Surveillance Advisory, initiate emergency rule making with the Arizona Attorney General’s Office in order to develop rules for opioid prescribing and treatment within health care institutions, and develop guidelines to educate healthcare providers on responsible prescribing practices. Opioid abuse often leads to criminal charges. If you or a loved one … Continue reading

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Handling the Stress when a Loved One has Pending Charges

Having a loved one with pending criminal charges is extremely stressful. Here are some practical ways to deal with that stress. Be there emotionally for your loved one but set healthy boundaries. Your loved one needs you now, more than ever so that he or she can vent, cry, complain, and otherwise process what happened. Allow this to occur but then take breaks so that you can recharge. You’re not helping your loved one if you allow the negative emotions to take over your life. Show your loved one that you love him or her by not putting your lives on hold just because charges are pending. Continue to live legally and morally. Plan fun events that are legal and moral that you and your loved one can enjoy together now. Talk to your loved one about ways to make extra income to pay for the attorney, fines, and fees. If he or she doesn’t want to talk about it, brainstorm on your own. For example, you and/or your loved one could get a job, take on extra work, get a second job, obtain a home equity line of credit, or sign up for contract work through guru.com. Discuss with your loved one the potential problems that a criminal conviction can cause and try to solve them now. For example, you may need to get a job if he or she receives a prison sentence. You should begin looking for a job now instead of waiting until after the sentencing. Explore how to eliminate unnecessary spending with your loved one. Unnecessary spending causes additional stress that you don’t need. Some examples are cable TV, designer clothes, the latest iphone, gym membership, Starbucks coffee, buying DVDs and eating out all the time. Brainstorm how to get needs and wants met for little or no money with your loved one. For example, you need and want to keep watching new DVD movies but have decided it’s unnecessary to keep buying them. Apply for a public library card and start checking them out for free instead. Hire an experienced defense attorney. His experience and compassion can help relieve a great deal of stress. Attorney Gary Rohlwing has over three decades of experience. Call him today for a free consultation.   My Specialty Practice Areas: Criminal DUI Domestic Violence   My Office is in Glendale, AZ Law Offices of Gary L Rohlwing 7112 N 55th Ave Glendale, AZ 85301 (623) 937-1692

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Arizona’s Duty To Report Law

Arizona’s duty to report law is found at A.R.S. § 13-3620. All of the information below is taken from that law. A.R.S. § 13-3620(A) provides in relevant part: “A. Any person who reasonably believes that a minor is or has been the victim of physical injury, abuse, child abuse, a reportable offense or neglect that appears to have been inflicted on the minor by other than accidental means or that is not explained by the available medical history as being accidental in nature or who reasonably believes there has been a denial or deprivation of necessary medical treatment or surgical care or nourishment with the intent to cause or allow the death of an infant who is protected under section 36-2281 shall immediately report or cause reports to be made of this information to a peace officer, to the department of child safety or to a tribal law enforcement or social services agency for any Indian minor who resides on an Indian reservation, except if the report concerns a person who does not have care, custody or control of the minor, the report shall be made to a peace officer only. . . .For the purposes of this subsection, “person” means: Any physician, physician’s assistant, optometrist, dentist, osteopath, chiropractor, podiatrist, behavioral health professional, nurse, psychologist, counselor or social worker who develops the reasonable belief in the course of treating a patient. Any peace officer, child welfare investigator, child safety worker, member of the clergy, priest or Christian Science practitioner. The parent, stepparent or guardian of the minor. School personnel, domestic violence victim advocates or sexual assault victim advocates who develop the reasonable belief in the course of their employment. Any other person who has responsibility for the care or treatment of the minor.” Read the original document of the law by visiting https://www.azleg.gov/ars/13/03620.htm Some organizations, such as the Girl Scouts, have determined that their adult volunteers have a duty to report pursuant to A.R.S. §13-3620(A)(5). According to A.R.S. §13-3620(O), a person who violates A.R.S. §13-3620 is guilty of a class 1 misdemeanor if it’s not a reportable offense or a class 6 felony if it is a reportable offense. A.R.S. §13-3620(P)(4) defines a “reportable offense” as the following: 4. “Reportable offense” means any of the following: (a) Any offense listed in chapters 14 and 35.1 of this title or section 13-3506.01. (b) Surreptitious photographing, videotaping, filming or digitally recording or viewing a minor pursuant to section 13-3019. (c) Child sex trafficking pursuant to section 13-3212. (d) Incest pursuant to section 13-3608. (e) Unlawful mutilation pursuant to section 13-1214.” Original found on https://www.azleg.gov/ars/13/03620.htm If you have been charged with failure to report, you need an experienced attorney to defend you. Attorney Gary Rohlwing has over thirty years experience. Call him today for a free consultation. Read more about my practice areas.

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