How to Avoid Probable Cause to Arrest for Unlawful Flight
5 Things You Should Know about Your Rights in a Police Stop and Arrest
You cannot be arrested solely for a non-criminal traffic violation in Mesa, AZ.
However, that changes if you fail to stop or try to elude police when you are signaled to pull over. Failure to stop violates Arizona’s unlawful flight laws.
The most important thing you can do when you realize police are signaling you to stop, is to pull over safely and promptly.
In the least you should slow down and find a way to let police know that you intend to pull over. Otherwise you could potentially create probable cause for your arrest.
Recently an Arizona Appeals Court ruled on whether or not a search warrant was required for police to follow a driver into a private driveway for a stop that began on a public road.
It held that though a person is not subject to arrest for a civil traffic violation, fleeing from police or refusal to stop can create probable cause for arrest.
This article features 5 important answers to questions about your rights at a stop, and defending subsequent criminal charges.
Why Did the Court Hold that Police Stop Without Warrant in Residential Driveway was Constitutional?
In a Arizona Appeals Court case, the defendant was charged with transporting methamphetamine (meth) for sale, possessing marijuana, and possessing drug paraphernalia. He was convicted and sentenced to a total of 11 years of imprisonment. On appeal, he argued that the trial court shouldn’t have denied his motion to suppress evidence due to a violation of his 4th amendment rights.
The case arose when two deputies saw a car stop and then turn, eventually following a random zigzag pattern through multiple intersections. The deputies checked the license plates and found there was an insurance cancellation for the car a month earlier. They drove after the car to start a civil traffic stop due to no valid insurance. Once they caught up with the suspect’s vehicle, the officers activated their emergency lights. A few seconds later, the suspect reportedly made what was described as a swooping turn into a private driveway. The police followed him into the driveway and into a backyard. It was there that the suspect complied with police. Police testified that at that time of the incident, they were unaware if the suspect had had any connection to that property.
Later, one of the deputies would testify that he felt the defendant was trying to run. The other deputy tried to call in the stop on his cell phone, while the first deputy went up to the car. The defendant began to exit the vehicle, but was instructed by police to remain inside the car.
The first deputy smelled pot and told the defendant to get out of the car and put his hands behind his back. He cuffed the defendant and checked for weapons. He found a stack of bills and a plastic baggie in one pocket, as well as a wallet plus two stacks of money in another pocket. The defendant had more than $2,400 in cash, and his car contained a burned pot cigarette, a charred metal spoon, and a bag containing meth.
The defendant denied knowing anything about the property where he’d stopped, but the police figured out that the property was his girlfriend’s property. The defendant was arrested, and he moved to suppress what the deputies had seized. The court denied his motion to suppress, finding that there was no probable cause or reasonable suspicion to detain him. It found that the place where the defendant had stopped in the backyard was not inside the home and that therefore, it was reasonable under the circumstances for the cops to follow him back there.
On appeal, the defendant argued that the deputies had gone onto his girlfriend’s private property without a warrant in violation of the Fourth Amendment, thereby subjecting him to an unlawful search and seizure. Deputies cannot go into somebody’s house to arrest him without a warrant, consent, or exigent circumstances. There must be an objectively reasonable basis for deputies to believe the circumstances justify a warrantless entry to raise the exigent circumstances ground. For example, if a deputy is in hot pursuit of someone suspected of committing a felony, there might be exigent circumstances to go into a private residence. Generally, curtilage or an intimate area of the home is considered part of the home. In this case, the trial court had found the defendant went into the curtilage but not the home.
The defendant argued that he didn’t try to flee the deputies in this case and that the reason they followed him was because he didn’t have auto insurance, which was only a civil infraction. The prosecution argued that by the time the deputies caught up with him in the backyard, they had probable cause for an arrest under A.R.S. § 28- 622.01.
The appellate court explained that any refusal to stop when asked by an officer in a police car is a violation of the felony flight statute. In this case, the deputies had turned on their emergency lights, but the defendant didn’t stop on the shoulder but instead drove onto a private driveway. Based on the total circumstances, a reasonable officer could conclude he was trying to escape. The driver’s attempt to avoid stopping for the officers by going onto the private driveway formed probable cause of a flight attempt, even though the purpose of the stop was to investigate a civil traffic violation. The convictions and sentences were affirmed.
Updated June 6, 2018:
On May 18, 2018 the Arizona Supreme Court reaffirmed the convictions and sentences in this case. It concluded the police did not violate the defendant’s rights by following him into the driveway. It reasoned that the Constitution does not allow for a driver to refuse to stop on a public road and retreat to a private driveway. Further the court found that the defendant’s actions implied that he was consenting to the stop.
Probable Cause for Arrest Q & As
Below are answers to 5 important questions about actions that create probable cause for arrest, and your rights at a police stop.
Can Police Detain You in Your Driveway Without a Warrant?
The U.S. Supreme Court has held that under the 4th amendment police are prohibited from entering a home without a warrant. The individual’s property attached to a home such as an enclosed garage, are considered private. However, driveways are only semi-private.
There are a few exceptions recognized within the scope of the 4th amendment warrant requirement.
Exigent circumstances that cause a situation to be emergent in nature to protect the safety of others or avoid destruction of evidence.
One exception to the warrant requirement is when exigent circumstances are present.
The U.S. Supreme Court has also held that police do not need a warrant is when they are in hot pursuit of a felon suspect. Police may finish pursuing a suspect in a chase that begins in a public location and eventually leads to a private driveway or home.
Does Failure to Stop, or Unlawful flight from Police Create Probable Cause for Arrest?
Yes, probable cause can be created by fleeing from police.
If the driver of a vehicle fails to stop after police have instructed or signaled them to stop even for a civil violation, they will be in violation of A.R.S. 28 – 622.01 or A.R.S 28- 1595.
Under Arizona law A. R.S. 28 – 1595 a person who knowingly fails to stop their vehicle when signaled by police to pull over may be found guilty of a class 2 misdemeanor.
Under Arizona Law A.R.S. 28-622.01 a person who willfully fails to comply with a police officer’s order may be found guilty of a class 5 felony. misdemeanor.
Below are 10 things you should consider if you are signaled by police to pull over:
- Once you have reached a stop, remain in the driver’s seat until the officer instructs otherwise.
- Always keep both hands on the steering wheel in plain sight where the officer can see them.
- Refrain from making any sudden or unexpected movements, especially those that suggest you are reaching for something.
- Do not provide anything until the officers requests it with regard to ID information. If the officer asks you for identifying information or vehicle registration, let the officer know where the document is and where you will be retrieving it from inside the vehicle.
- If it is dark outside the vehicle, turn on the dome light or interior lights so the police officer can see you and your surroundings within the vehicle.
- If others are with you in the vehicle, you should instruct them to remain quiet and calm. You should also advise them to comply with the police orders or instructions.
- If the officer issues you a citation of any kind, you should try to remain calm. It is OK to ask for clarification if you have questions about it.
- The most effective way to contest a citation or stop is through the proper legal channels after you have been released from custody, or detention. Do not challenge the charges or ticket in the presence of the officer at the stop, if he or she has written one. This usually will cause more harm than good. Usually it leads to the officer getting annoyed or feeling threatened. These situations can quickly turn bad and result in serious physical harm as well as additional charges.
- Accepting a citation peacefully does not mean you agree with the citation. An arrest is not a conviction. You have the right to hire an attorney to represent you. You have the right to contest the charges or citation. If you wish to invoke these rights you should consult a criminal defense attorney who serves the area where you received the citation or were arrested.
What can an Attorney do to Help Resolve Drug Charges and Unlawful Flight Charges in Mesa AZ?
Attorney James Novak has extensive experience in defending drug crimes involving drug possession and possession with intent to sell, drug sales, distribution, manufacturing, transport, and unlawful flight charges.
James Novak of the Law Office of James Novak exclusively defends individuals charged with a crime in Maricopa County. Mr. Novak is a former Maricopa County Prosecutor with strong litigation skills and over 20 years of experience in DUI & Criminal Law
If retained, Attorney James Novak will represent you and defend your charges. He will make sure your rights are protected and determine the best defense strategy in your case.
James Novak will look for weaknesses in the prosecution’s case, gather favorable evidence if available, and work hard to obtain the best possible resolution to your charges.
James Novak offers a free initial consultation for people facing active drug crimes, DUI and other criminal charges in Phoenix, Mesa, Tempe, Chandler, Gilbert, and Scottsdale, Arizona.
Contact or call (480) 413-1499 experienced criminal defense attorney, James Novak, to discuss your options for defense, and representation.
Additional Resource Links:
- A.R.S. § 28-622.01 (Unlawful flight)
- A.R.S. § 28-1595 (Failure to Stop)
- A.R.S. § 13-3913 (Conditions Precedent to Issuance of Search Warrant)
- Arizona Attorney General – Criminal Investigations
- Phoenix AZ Police Department
- U.S. Supreme Court Terry v. Ohio
- Phoenix Police Department | What to Do if You are Stopped by Police
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