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Solicitation to Sell Drugs Not a Strike Against Mandatory Probation

Posted on December 7, 2021 in

Mandatory probation in Arizona sentencing is for people convicted of non-violent drug crimes, so long as they do not have three prior narcotics convictions for personal possession. If three strikes, then no probation.

Prior conviction for solicitation to sell narcotics did not disqualify defendant for mandatory probation. Nor was it a personal possession conviction under ARS § 13-901.01 (Drug Medicalization, Prevention, and Control Act). Defendant’s sentences were vacated and the case remanded for probation re-sentencing. The convictions were affirmed as the trial court’s denial of defendant’s motion to suppress evidence was not in error. Police did not unreasonably detain defendant by checking for violation of federal immigration law and department policy before discovering illicit drugs.

Non-Dangerous Convictions for Narcotics Possession and Possession of Drug Paraphernalia

Defendant Green, a repeat offender, was convicted on two counts of narcotics possession and one count of possession of drug paraphernalia – non-dangerous offenses.

He was arrested after police saw his parked truck after hours in a Tucson city park. A drug pipe was in plain view. The officer cuffed and placed defendant in the back seat of the patrol car. In a search of the truck, another pipe was found. Initially, the officer intended to charge defendant with trespass and drug paraphernalia possession. Green was removed from the cruiser, but then returned to the backseat so the officer could check for a violation of federal immigration law (SB 1070) and department policy. No immigration issue came up. Exiting the patrol car the second time, a small plastic bag of “crystallized substance” fell from defendant’s lap. After field-testing positive for narcotics, he was arrested. Once under arrest, a search of his person resulted in a package of heroin and container of morphine pills.

Before trial, defendant motioned to suppress the drug evidence on grounds the officer detained him for an “unreasonably prolonged” period given police had already “decided merely to cite and release [defendant] for trespassing and possession of the pipe.” An evidentiary hearing was held. The trial court denied the motion having found neither unreasonable delay nor gained advantage by law enforcement.

The jury found defendant guilty. He filed a pre-sentence motion for mandatory probation, arguing his 2006 prior conviction for solicitation to sell narcotics was not a third-strike and did not disqualify him for probation. The motion was denied after hearing. Green was sentenced to concurrent prison terms (six years being the longest) to which he appealed.

Citation Field Release Procedure Optional for Police

Defendant argued police obtained drug evidence only after unlawfully extending the period of detention. His motion to suppress drug evidence was based upon the “unlawfully prolonged … detention in order to complete an immigration check” which was a “detour from the mission of the stop.” Before deciding to check immigration status, this was a “standard traffic stop” in which police had decided to “issue [Green] a citation and release him.” He then argued detention should take no longer than necessary to fulfill law enforcement’s purpose of citation and release. That but for the unlawfully prolonged detention, illicit drugs would not have been discovered.

The Court of Appeals held no error in denying the motion to suppress evidence. With misdemeanor arrest, “citation field release procedure is optional, not mandatory.” Citing State v. Pickett, 126 Ariz. 173 ( Ariz. Ct. App. 1980). Although the officer could have released defendant and subjectively intended to, Green “was not entitled to release at that point.” Probable cause for valid arrest gave the officer discretion. Therefore, “actual release remained contingent not only on completion of the officer’s investigation, but also a favorable exercise of his discretion.” ARS § 13-3883.

Personal Possession of Narcotics in Arizona Mandatory Probation Law

The second issue on appeal was whether the trial court erred in not sentencing defendant to probation. Arizona’s mandatory probation law in ARS §13-901.01(A) and (H)(1) provides that:

A. Notwithstanding any law to the contrary, any person who is convicted of the personal possession or use of a controlled substance or drug paraphernalia is eligible for probation. The court shall suspend the imposition or execution of sentence and place the person on probation.

H. A person is not eligible for probation under this section but instead shall be sentenced pursuant to chapter 34 of this title if the court finds the person either: 1. Had been convicted three times of personal possession of a controlled substance or drug paraphernalia. … [Emphasis added.]

Green argued his was not a third strike conviction for “personal possession or use” of a controlled substance or drug paraphernalia and, therefore, the trial court erred in denying his motion for mandatory probation. Defendant was correct.

The appeals court examined “voter logic” behind Proposition 200 (codified in § 13-901.01, the Drug Medicalization, Prevention, and Control Act of 1996 as amended) and those Arizona cases interpreting that three strikes you’re out probation disqualification law. Namely, cases with “absurdity doctrine” applied to prevent an illogical result when interpreting the statute. (For instance, it was “illogical to require probation for possession of narcotics but not for attempted possession of narcotics.” Stubblefield v. Trombino, 197 Ariz. 382 (Ariz. Ct. App. 2000).) The plain language of the statute provided this appeals court with clear guidance whereas prior case law did not.

Does personal possession of narcotics include solicitation to sell? After plain language and absurdity doctrine analysis of ARS § 13-901.01, the answer was negative. Possession and solicitation crimes are not the same. Personal possession “only encompasses those offenses involving possession for one’s own use.” By contrast, solicitation to sell is an inchoate, incomplete crime involving neither constructive possession nor actual possession of any controlled substance. Inchoate drug crimes do not count as personal possession drug offenses for purposes of disqualifying the defendant for mandatory probation under ARS § 13-901.01. Green was entitled to probation. The appeals court affirmed the convictions, vacated the sentences, and remanded for re-sentencing.

Arizona v. Green, 2 CA-CR 2017-0208 (Ariz. Ct. App. Oct. 19, 2018)

Arizona v. David Lee Green (2018)

For precise language, please read the court’s original opinion. Legal citations have been omitted.

Criminal defense attorneys with Stewart Law Group are former prosecutors. To learn more, visit our discussion about criminal appeals from drug convictions in Phoenix, Arizona.