Archive for Police

Jun
07

Arpaio Announces Deputy’s Move To Obama Investigation For Security Purposes

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Sheriff Joe Arpaio said the volunteer investigation regarding documents that relate to the residency of President Barack Obama currently includes taxpayer-funded deputy services. The deputy joins Arpaio’s cold case volunteer member Mike Zullo in Hawaii because of security issues as well as the progression of the investigation.

Arpaio recently said it’s just one deputy and that the investigation does have some security issues. He said for six months, no money was spent. However, when it comes to investigation, some things need more resources put into them.

The Sheriff’s office recently said approximately $40,000 has been spent so far on the investigation, which is funded solely on donations.

In the past, Arpaio flaunted the fact that the investigation consisted mainly of volunteers and donations. However, a sworn deputy is now needed.  According to Arpaio, the volunteer posse is in the middle of a criminal investigation but declined to further elaborate.

Arpaio also noted that the costs of Zullo and the deputy’s hotel rooms and airfare are being covered by the Sheriff’s Office. However, the posse is expected to pay back the department for all of it.

The deputy that’s been assigned to the investigation into Obama continues to works with the Sheriff’s department in its threats unit. Arpaio said the deputy will work on other cases while helping with the investigation. However, he won’t be making arrests.

Arpaio said the investigation posse won’t constantly use the deputy because he’s not assigned to it. He’s just currently a liaison and provides advice when warranted, Arpaio said. He said he feels a deputy is needed right now. He refused to talk about other trips the posse has been on without the assistance of a deputy.

250 Surprise Tea Party members request an investigation be launched regarding Obama’s residency.

A news conference was held in March by the sheriff along with Zullo, Surprise Tea Party members and author Jerry Corsi, whose examination originally led the investigation. Zullo laid out the allegation that the president’s birth certificate and selective service card were fakes.

Zullo relied on the White House’s documents that verified the president’s birth in Hawaii for the investigation.

A civil rights lawsuit was recently filed by the U.S. Justice Department that alleged that Arpaio’s department discriminated against persons who spoke out against the sheriff and his policies as well as Latinos.

Arpaio has repeatedly denied that this investigation into Obama is motivated by politics. However, many critics have noted that most folks, including Republicans, have gone past the topic.

Ken Bennett, Arizona Secretary of State, brought the topic back up recently by asking Hawaii officials to verify the birth certificate so that he could place the president’s name on the Nov. 6 ballot.

The sheriff said it’s not Obama’s birthplace the investigation is focused on. Instead, it’s the possibility that some documents generated to authenticate the birth are duplicitous.

Arpaio said he’s able to spare one deputy and not have problems because the agency has roughly 900 other deputies working for it.

Categories : Police, Politics
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Jan
01

State of Arizona v. Lovejoy

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This not guilty verdict was including among a number of high profile cases entrusted to now disgraced former prosecutor Lisa Aubuchon.  Judge Neil Wake recounts in his recent ruling denying the Defendant’s motion for summary judgement:

Lovejoy’s case went to a bench trial in front of a Justice of the Peace on August 15, 2008. After Aubuchon presented the State’s case, Lovejoy’s defense attorney moved for a directed verdict: Judge, the statute as we’ve been talking about all morning requires the culpable mental state of recklessly. And for the State to prove that, they have to show that Sergeant Lovejoy was aware of a substantial and unjustifiable risk, i.e., the dog was in the car, and that if he left him in there, he would die or become injured. . . . They have shown that he left the car “ the dog in the car. No one is disputing that. They haven’t shown . . . that he knew the dog was back there, but disregarded the risk that he might die. (Doc. 93-1 at 56.) In response, Aubuchon argued, We don’t have to show that he knowingly left the dog in the car. . . . *** We are not arguing that he knew he left the dog in the car, because we would have charged it that way. We’re arguing that he’s reckless. And it is his very conduct and the choices he made that shows he substantially disregarded that risk. Everybody knows that in August in Arizona it is hot in a car. And a trained K-9 officer should be on heightened awareness about what will happen if he forgets the dog in the car. (Doc. 93-1 at 57.) At the close of argument, the Court announced without elaboration, “At this time I’m going to deny the directed verdict.” (Doc. 93-1 at 62.) Lovejoy then put on his defense, after which the Court stated: “All of these so-called distractions [presented by the State as evidence of recklessness] . . . don’t equal “ it doesn’t equal to me to be recklessness. State did not meet their “ their burden here and I find [Lovejoy] not guilty.”

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Jan
01

County Attorney Andrew Thomas’ Decision to take Lovejoy to trial

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As recounted in Judge Wake’s recent ruling:

Andrew Thomas, then the Maricopa County Attorney, assigned Leonard Ruiz, third in command at the County Attorney’s Office and chief of the trial division, to supervise Lovejoy’s case. Ruiz was never told why he received the assignment. He could not recall another instance of a person with his seniority at the County Attorney’s Office being asked to assist in prosecuting a misdemeanor animal cruelty offense. Deputy County Attorney Anthony Church, who specializes in animal cruelty cases, received the assignment to handle day-to-day tasks associated with the Lovejoy prosecution. Soon after he received the assignment, Church formed the opinion that the case against Lovejoy was weak: [F]rom all the information I had gathered from the police report, [Lovejoy] cared very much about the animal, and I had a hard time believing that he would consciously recognize that the dog was in the back of the car and leave the dog there intentionally or ‚or, you know, understanding that he would be coming back but knowing the dog was back there.

On March 7, 2008, Church and Ruiz jointly requested an “incident review.” An incident review involves submitting the case to a board of senior attorneys who evaluate whether the case should go forward. Church and Ruiz’s written request summarized Simonson’s findings and added, A defense interview with Detective Rob Simonson took place in early February. According to Detective Simonson there is no evidence, which he can point toward, to show that Lovejoy did not simply forget that the dog was in the car. Detective Simonson told the defense attorney the only evidence that exists to prove the reckless mindset is that Lovejoy put the dog into the car and Lovejoy failed to take the dog out of the car, causing the dog’s death. (Doc. 101-2 at 4.) Church and Ruiz then quoted the animal cruelty statute under which Lovejoy was charged (see p. 5, above) and the definition of “recklessly” (see p. 8, above) and concluded: Recklessness requires that the person actually be “aware” of the risk being created by his conduct. In re William G., 192 Ariz. 208, 963 P. 2d 287 (App. 1997). This case needs to be set for incident review to determine whether we have probable cause to prosecute this case and whether we can ethically prosecute this case. (Id. at 5 (emphasis in original).) On March 11, 2008, another Deputy County Attorney, Jeff Trudgian, submitted a memo to Chief Deputy Philip J. MacDonell regarding the Lovejoy case. The memo begins, “Mr. Thomas requested research on the issue of whether “awareness’ of the risk, as needed for a finding of recklessness, can entail forgetfulness “ specifically, as applied to a K-9 police officer with specialized training regarding animal handling.” (Id. at 8.) Trudgian analyzed various cases and the relevant statutes and concluded, The problem is the element of “conscious disregard” that the results would occur or the circumstance exists. It cannot be argued that a person who truly forgot an animal in a vehicle consciously disregarded a known risk. . . .  . . . [T]he facts appear legally insufficient for conviction. (Id. at 10 (emphasis in original).)

On March 28, 2008, yet another Deputy County Attorney, Linda Van Brakel, submitted a memo titled “Lovejoy analysis” to Jim Beene, whose position is unidentified. The memo quotes Church and Ruiz’s statement of facts (contained in their incident review request) and then analyzes the relevant law as applied to those facts. Similar to Trudgian’s memo, Van Brakel’s states, Lovejoy knew the dog was in the car because he placed him there, but the evidence shows he completely forgot about him. In other words, although Lovejoy was no doubt aware of the risk of leaving a dog in a hot car that long, he did not consciously disregard that risk. He simply forgot. That may be negligent, but it is probably not criminally reckless. (Id. at 27 (emphasis in original).) Van Brakel considered but rejected a recklessness argument based on sleep deprivation: Lovejoy should have realized that he was sleep-deprived and might forget about the dog. However, police officers working graveyard shifts, swing shi[f]ts, off-duty jobs, and getting called out at all hours, are commonly sleep deprived and this might be considered normal for a police officer. In other words, loading the dog in the car under the circumstances probably did not create a substantial risk of harm constituting a gross “flagrant and extreme” deviation from the conduct of a police officer or K9 officer. Leaving him in the car, of course, would create a substantial risk of harm constituting a gross deviation from the conduct of a K9 officer, but we lack the “conscious disregard” of such a risk. (Id.) Van Brakel ultimately concluded, “I do not believe there is a reasonable likelihood that it can be proven beyond a reasonable doubt that Lovejoy acted with criminal recklessness, causing Bandit’s death.” (Id. at 31.) The record before the Court does not reveal whether County Attorney Thomas reviewed any of this material. However, he turned down Church and Ruiz’s incident review request.

In a less than shocking turn of events, Andrew Thomas disregarded all of the advice he was given about prosecuting Officer Lovejoy and turned the case over to his ever-faithful servant, Lisa Aubuchon (who is facing currently facing disciplinary proceedings with her former boss).

Contact a Phoenix Criminal Lawyer today if you are facing criminal charges.

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Jan
01

Maricopa County Sheriff’s motion for summary judgment denied

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District court Judge Neil Wake recited the following undisputed facts:

That night, he had trouble sleeping because he did not feel well. Around 2:00 a.m. on Saturday, August 11, Lovejoy’s lieutenant at the Chandler Police Department awoke Lovejoy with a phone call. The lieutenant reported a possible sighting of a serial rapist that had recently been terrorizing the Chandler community. Lovejoy’s lieutenant asked Lovejoy to report for duty. Lovejoy agreed, but instead of getting out of bed, he fell back asleep because he was extremely tired. About an hour later, Lovejoy’s lieutenant called again. Lovejoy then got out of bed, put on his uniform, put Bandit into his police SUV, and began driving toward the scene. As he drove, he spoke with his lieutenant again by cell phone. In frustration, the lieutenant told Lovejoy to return home. Lovejoy did so and placed Bandit in his backyard kennel, but Lovejoy did not go back to sleep because he was upset with himself for falling asleep after his lieutenant’s first phone call that morning. By this time, Lovejoy had slept only about six-and-a-half hours over the previous two days. Lovejoy volunteered for an extra-duty traffic control shift that morning beginning at 6:00 a.m. He was not required to bring Bandit with him but he brought Bandit anyway because, he says, he wanted to be prepared if the serial rapist was again spotted. Although the record is somewhat hazy, it appears that Lovejoy and Bandit both remained in the SUV for the entire shift, which ended at 9:00 a.m. Lovejoy believes that Bandit had fallen asleep in his kennel by this point because daytime was Bandit’s usual sleep time. While driving home, Lovejoy received various cell phone calls and was still talking on his phone when he pulled into his driveway, exited his vehicle, and walked into his house. Lovejoy did not take Bandit out of the SUV. For the rest of the day, Lovejoy attended to various family obligations, including helping his stepson with a minor car accident, shopping with one of his daughters, and going out to dinner with his wife. He used his personal vehicle for all of these tasks.

At about 10:30 that night, he returned to his police SUV to get it ready for another extra-duty shift, smelled an unusual smell, and discovered Bandit dead in his kennel. Lovejoy was distraught. He soon called fellow Chandler Police Officer Ron Emary to help him report the incident, but he could barely do more than babble over the phone. Emary arrived on the scene soon after, as did Chandler Police Department Commander Joseph Gaylord, who photographed the scene, cleaned up Bandit’s kennel, and took Bandit’s body to an animal hospital for cremation.

As those who followed this story are aware, Officer Lovejoy was later charged by the County Attorney’s Office and found not guilty of animal cruelty.  If you or a loved one are charged with any criminal offense, you should immediately seek legal advice from a Phoenix Criminal Defense Attorney.

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In 2002, officer Lovelace fatally shot a woman who was suspected of illegal obtaining prescription drugs at a drive-thru pharmacy in Chandler.  Lovelace was thereafter charged with murder by the Maricopa County Attorney’s Office.  A jury found Lovelace not guilty of the charge during a criminal trial that ended in the summer of 2004.

Lovelace was terminated from the department and the city had to pay several million dollars to settle legal claims arising from his conduct.  According to news reports, Lovelace will now be working as a detention officer with the Pinal County Sheriff’s Office.

Lovelace’s criminal case was extensively litigated by his criminal defense attorney  before the trial commenced.  In fact, the case was actually dismissed at one point after the court ruled that prosecution did not present the evidence to the grand jury in a full and fair manner.  After the court’s ruling, the prosecution presenting the case to another grand jury and obtained another indictment.  In remanding the case back to the grand jury, the court held:

 Arizona law has never required the grand jury to receive or consider all potentially exculpatory evidence. In State v. Superior Court (Mauro), 139 Ariz. 422, 678 P.2d 1386 (1984), the Court held that the prosecutor’s duty to present exculpatory evidence to the grand jury extended only to “clearly exculpatory evidence”, defined as “evidence of such weight that it would deter the grand jury from finding the existence of probable cause.” Mauro, Id. at 425, 678 P.2d at 1390. However, an accused is entitled to due process during grand jury proceedings. State v. Emery, 131 Ariz. 493, 506, 642 P.d 838, 851 (1982). Due process requires the use of an unbiased grand jury and a fair and impartial presentation of the evidence. Id. State v Emery. The duties of fair play and impartiality imposed on those who attend and serve the grand jury are meant to insure that the determinations made by that body are informed, objective, and just. Crimmins v. Superior Court in and for Maricopa County, 137 Ariz. 39, 668 P.d 882 (1983). Arizona case law has specifically mandated that false, misleading or inaccurate evidence may not be presented to the grand jury, and, if it is, a remand is warranted. Maretick v. Jarrett, 391 Ariz. Adv.Rep. 9, 63 P.3d 120 (En Banc 2003); Escobar v. Superior Court 155 Ariz. 298, 746 P.2d 39 (App.1987). It appears to the Court that several errors occurred in Detective Kieffer’s testimony before the grand jury. First, Detective Kieffer testified that Defendant said when he shot Ms. Nelson he remembers looking at her and seeing: “….. that her arms were up on the steering wheel at about 10:00 o’clock and 2:00 o’clock” (GJT p.19) That was not the way Defendant described it in his taped interview dated October 11, 2002. Defendant, in fact, stated: “I know that I was facing her at a slight angle, not directly perpendicular. Less than perpendicular when I shot. So where I was exactly all I know is the car was coming at me…. It’s at a slight angle and she’s….. has her left arm still up. So she’s slightly turned and she’s making….. So she’s leaning slightly to her right and she’s looking right at me as she’s turning.

There is nothing in the transcript of Defendant’s interview that confirms that he said that Ms. Nelson’s arms were up on the steering wheel at about 10:00 and 2:00 o’clock. Second, the Affidavits of Attorney Dale Norris and Chandler Police Officer Daryle Palmer, both of whom witnessed the interview of Defendant, state that Defendant never stated or demonstrated that when he shot Ms. Nelson her left hand was at the 10:00 o’clock position. Daryle Palmer stated that Defendant indicated he first saw Ms. Nelson turning her steering wheel with her right hand in a counter-clockwise motion, turning the vehicle towards him. Defendant further indicated that just before he discharged his weapon, Ms. Nelson had her left arm up and was leaning slightly to her right. Officer Palmer stated that, as Defendant demonstrated this movement, the left side of Ms. Nelson’s body was more forward than her right side, her left hand was not on the steering wheel, her left forearm was raised and moved toward the passenger side, which caused her left upper arm, which was close to her body, to be rotated slightly clockwise. Dale Norris stated that Defendant said and demonstrated that Ms. Nelson was turning hard to the left and her right hand was high on the steering wheel. He said that Defendant stated and demonstrated that Ms. Nelson’s left arm was held high and visible above the door while turning the vehicle. Defendant indicated and demonstrated that Ms. Nelson was leaning to the right away from Defendant before he discharged his weapon. Finally, Mr. Norris stated that Defendant demonstrated that when turning her body to the right, Ms. Nelson was exposing the rear of her left shoulder to Defendant. The Court FINDS it noteworthy that the State has not offered an affidavit from Detective Kaminsky, who conducted Defendant’s interview, controverting the Palmer and Norris affidavits. These descriptions of what Officer Palmer and Mr. Norris heard and observed during Defendant’s interview become even more important since the following questions were asked by the prosecutor and the following answers were given by Detective Kieffer during the grand jury proceeding.

Q…..”What we have the medical examiner finds the bullet enters the back of her left arm; correct?

A. Yes, sir.

Q. Travels from back to front?

A. Correct.

Q. And comes to rest in this right breast?

A. Correct.

Q. The officer said that he was facing her when he fires?

A. Correct.

Q. With her arms up on the steering wheel?

A. Correct.

Q. That’s inconsistent with what the medical examiner found because the

medical examiner found the left arm had to have been up against the

chest wall?

A. Yes.

Q. The arm would not have been extending?

A. Correct.

Q. It’s possible, I suppose, that at the time the shot was fired she

could have — in order to get that back to front, she could turned

very sharply to right and then exposed her left arm to where the

officer said he was?

A. Correct. Correct.

Q. That’s not how he described seeing her?

A. No, it’s not.” (GJT, pp. 40-41) (Emphasis added).A. No, it’s not.” (GJT, pp. 40-41) (Emphasis added).

Detective Kieffer’s testimony, that Defendant did not describe that Ms. Nelson turned to the right and then exposed her left arm to where the Defendant said he was positioned, was misleading. In fact, Detective Palmer and Mr. Norris, who were both present during the interview, stated that is precisely how he described it. The Court notes that neither Mr. Norris nor Officer Palmer prepared supplements to become part of the departmental report regarding this incident. Detective Kieffer was not present during Defendant’s interview and did not have the information from Officer Palmer or Mr. Norris when he testified before the grand jury. The prosecutor also did not have the benefit of any supplements prepared by Mr. Norris and/or Officer Palmer. Accordingly, it cannot be said that the prosecutor and/or the officer intentionally mislead the grand jury regarding what the Defendant described. However, in the telephonic conference between Court and counsel on May 8, 2003, Mr. Imbordino acknowledged that, if had been aware of the information provided by Palmer and Norris, he would have had to present it to the grand jury.

With regard to Detective Kieffer’s testimony as to the 10:00 o’clock and 2:00 o’clock position of Ms. Nelson’s arms, that testimony was simply a misunderstood interpretation of what Defendant stated in his interview. Regardless of the fact that there was no intentional misleading of the grand jury, the duties of fair play and impartiality imposed on those who attend and serve the grand jury require that the presentation of the evidence be a fair presentation. In this case, the incident took place in a matter of seconds. The exact position of Ms. Nelson’s body in her vehicle at the time of the shooting in relation to Defendant’s position is a crucial issue to be determined by the finder of fact. The State has the right to use Defendant’s statement in the grand jury presentation, but its use must be precise and accurate. It is important in the interests of justice that a full and fair presentation of the relevant evidence regarding the position of Ms. Nelson’s body in her vehicle be presented to the grand jury. That was not done and, accordingly, IT IS ORDERED granting Defendant’s Motion to Remand. The matter is remanded to the grand jury for further proceedings in accordance with the ruling of the Court. IT IS FURTHER ORDERED vacating any pending trial or trial management conference dates.

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May
05

Police set to crack down on Cinco de Mayo DUI offenses

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Officers of several valley agencies are participating in an announced DUI taskforce scheduled for this evening. The task force will reportedly be patrolling the areas of Tempe and Old Town Scottsdale.

Please enjoy your holiday responsibly. If you are in need of a DUI attorney, contact the Law Offices of Joshua S. Davidson today.

Categories : Criminal Law, DUI, Police
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Dec
31

New license plate law to take effect

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Beginning Thursday, January 1, 2009, all motorists with Arizona license plates will be required to “maintain each license plate so it is clearly legible and so that the name of this state at the top of the license plate is not obscured.”  In other words, if you are one of the many drivers on the road with a bulky license plate frame, the police can pull you over if the word “Arizona” is even partially covered.  The new law, A.R.S. §28-2354, is viewed by many as unnecessary for public safety and unfair in that it applies only to in-state motorists.


The larger issue, however, is the real motive behind this new law.  Many Drug Defense Attorneys and Criminal Lawyers believe that the police supported this measure because it provides them the ability to legally justify the stop of a car in many cases where they otherwise would be unable to.  Under federal and state law, the police cannot conduct a traffic stop unless they have reasonable suspicion to believe that a crime or traffic violation has been committed.  If the police stop a car and find drugs or evidence of some other crime, the courts will generally suppress the finding if the initial stop was not legally justified.  This new measure now makes it that much easier for the police to conduct a questionable stop and sidestep issues pertaining to the constitutionality of their conduct.


Please contact Phoenix attorney Joshua Davidson if you have any questions about search and seizure law or wish to discuss your case.

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Dec
31

Arizona Department of Public Safety to begin using consent forms for vehicle searchs

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Arizona DPS officer are going to be using a consent form which must be completed before searching a vehicle. The change in police was made after an advisory board of citizens appointed by the governor considered the matter and made its recommendations. According to news reports, the consent forms must also state the basis for the initial stop as well as the results of the search. These forms will be used to evaluate whether their officers are stopping and searching a disproportionate amount of minority motorists. From a criminal defense perspective, I believethese forms will be a double-edged sword. Certainly, if a consent form is signed, it will make it more difficultthe challenge the validity of a consensual search in court. Whenever consent is givenorally, the officer’s credibility and other factors always plays a role when asking the court to determine whether consent was actually given and if it was done voluntarily. On the other hand, if DPS has a policy requiring the use of the search form andthey do not obtain one for whatever reason, serious questions might be raised regarding why the officer departed from thier department’s policy.
Phoenix Drug Crimes Attorney Joshua S. Davidson strongly recommends that you politely but firmly refuse any request to search your vehicle. The fourth amendment to the United States Constitution protects all persons from unreasonable searches and the presumptionis that a search warrant is required. There are obviously many exceptions to the search warrant requirement however the burden in on the prosecution to establish the existence of the exception. Receivingconsent from the person searched is a well recognized way for the police to avoid the necessity of a search warrant. If the police disregard your denial of your request or threaten you with jail if you don’t allow them permission, it is okay to submit to their requests. Remember, the side of the road is no place to argue constitutionallaw with the police. You will lose 100% of the time. Just be sure to inform the officer that you are allowing the search only to avoid whatever they threatened you with or because you do not want to challenge them physically.
Contact a criminal defense attorney today at the Law Offices of Joshua S. Davidson if you or a loved one is facing criminal charges arising from a police search.

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The Arizona Defense Law Blog is published by Phoenix DUI and criminal defense attorney Joshua S. Davidson. Nothing on this website is intended to create an Attorney-Client relationship and the information provided herein is for general information purposes only.

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