What Constitutes “Conspiracy” using mobile devices in Unlawful Drug Sales

In a recent Arizona Supreme Court drug case, a man convicted of 11 drug-related crimes was sentenced to concurrent, consecutive presumptive terms of imprisonment.

The defendant appealed, challenging five convictions related to violations of A.R.S. § 13-3417(A) to facilitate or conspire to commit felony drug crimes.

In this article we provide an overview of the case and the Appeals Court Ruling; how it impacts Arizona; and privacy rights v. the public safety debate of cell phone searches.

This article also includes a special featured segment by Scott Greene, Senior Technology Forensics Expert, who will provide additional insight into cell phone and mobile device forensics.

Case Overview

The case arose when Arizona narcotics agents were told that the defendant was selling drugs.

An undercover agent began talking to the defendant by cell phone and arranged to buy methamphetamine from him. Below is the outcome of the efforts initiated by the undercover agent:

• The first transaction took place as planned.

• The agent again contacted the defendant and arranged another purchase. However, the woman who was supposed to deliver the drugs never showed up to complete the sale.

• Another purchase was set up, and as a result, the defendant’s co-defendant (another person charged in the crime) sold the meth to the agent.

• The next transaction did not go through because only the undercover agent arrived and no one met him to complete the sale.

• The next transaction resulted in another codefendant meeting the agent and selling him rock salt rather than meth.

• Two weeks later, the police arrested the defendant. Upon searching him, they found a bag of marijuana in his possession, as well as the cell phone with the same phone number used by the undercover agent to initiate the sale.

The defendant and his two codefendants were indicted on multiple counts, found guilty, and sentenced. The defendant appealed.

The appellate court was faced with the issue of whether the defendant, who was the seller in the drug transaction, was properly convicted of an A.R.S. § 13-3417(A) violation.

The primary question was whether or not there was sufficient evidence to prove that the defendant used a wire or electronic communication to “facilitate” or “conspire” to commit the felonies.

This question evolved around the fact that there was no other evidence presented involving wire or electronic communications by the defendant except for that of the buyer, the undercover agent.

The defendant also argued that the offenses that were charged in connection with the wire communications statute involved the sale of rock salt, an imitation substance that falls under A.R.S. chapter 34.1 for Imitation Drugs; not chapter 34 for Drug Offenses, or chapter 23, for Organized Crimes, Fraud or Terrorism, as stated in the language of the statute pertaining to the wire communications statute.

The state responded that the cell phone was used to communicate with the undercover agent about the sale of an unlawful drug.

Therefore, it was irrelevant that the drug was an illegal imitation substance provided after the communication.

The appellate court explained that they found no published precedent case that interprets the statute.

Therefore, in these situations the court looks to the plain language and the meanings of “facilitation” and “conspiracy” in its effort to interpret the statute.

An Arizona statute provides that “facilitation” is committed if someone who knowingly provides another with the means or opportunity to commit a crime. They do so, knowing that the other person is committing or intends to commit the crime.

An Arizona statute provides that a “conspiracy” is committed when three elements exist:

1. At least one of them or someone else will act in ways that constitute that crime; and
2. Someone agrees with one or more people, intending to promote or help in the committing of a crime; and
3. One of the people commits an overt act to further that crime.

The court used these statutory definitions of facilitation and conspiracy to interpret the wire communications statute.

It held that prohibited use of a wire or electronic communication is to knowing or with intent:

• Provide someone else with the means and opportunity to commit a crime; or

• To agree with someone else, that one of them, or another will act in ways that constitute a crime and commit an overt act to further the crime.

In several of the sales, the defendant was the seller and the agent was the buyer, and both were necessary to the transaction.

The defendant didn’t use the phone to facilitate or promote anyone else’s efforts to complete the sale, nor was their evidence that the defendant was conspiring with anyone else about the sale.

The defendant’s communications with the other people who delivered the drugs in certain transactions were in person.

In other transactions, the undercover agent came to buy drugs, but the defendant didn’t show up to sell them. more

Arizona Appeals Court Ruling

The Appeals court noted that the language under Arizona law A.R.S. § 13-1003 which pertains to the act of Conspiracy plainly requires at least two parties to the wire or electronic communication who are arranging to commit a crime.

Further the court observed that that under A.R.S. § 13-1004 Facilitation generally refers to the efforts of someone else, other than a primary or necessary actor to commit the crime.

In its conclusion the Court cited the Abuelhawe v. United States, 556 U.S. 816 (2009) to support its decision. In that case, the defendant’s phone call to the drug seller was determined to have facilitated the illegal drug transaction.

The court concluded that a defendant should not be convicted of “conspiracy” or “facilitation” of committing a felony § 13-3417(A) violation.

This, due to the fact that by acting as the principal in a drug sale between two parties, there was no evidence that the defendant was talking to someone other than the undercover officer, to further the drug transaction.

The convictions related to wire and electronic communications were vacated. The convictions on the remaining counts not related to the A.R.S. 13- 3417 (A), were affirmed. Penalties were subject to remand pending clarification of the sentences for the 5 counts that were vacated.

Impact of Ruling in Arizona

The impact of this ruling is that in order for a person to be convicted on counts under 13-3417 (A) for conspiracy or facilitation of a crime through use of wireless or electronic devices, the prosecution will need to present more evidence of communications with others, v. sole communications between with an undercover officer and the defendant.

Cell Phone Searches v. Privacy Rights

With advancements in technology and increased usage of electronic devices and wireless communications in everyday life, digital evidence has become a primary source of investigation in criminal investigations.

State and Federal laws have seen many challenges in this area as existing legislation becomes outdated.

As a result courts look to precedent cases at the state and federal level for guidance in rulings.

The United States Supreme Court has ruled unanimously that a warrant is needed to search or seize a person’s cell phone or mobile device to make sure it is not in violation of 4^th Amendment Rights of the U.S. Constitution.

The reasoning behind the decision in recent cases is that cell phone, in particular smartphones are capable of holding a vast quantity of diverse digital data. This coupled with the fact that most have internet access, makes a cell phone a mini-computer.

The court held that seizing a cell phone with a substantial amount of personal information about a person and their daily lives, requires a higher degree of privacy protection.

Arizona court decisions have been consistent with this ruling, and limited searches pertaining to a suspect’s cell phone.

While most other objects can be searched or seized incidental to an arrest, that is not the case for cell phones.

A few exceptions to the warrant requirement that would generally apply to other objects, do not apply to cell phones.

For example, the U.S. Supreme Court ruled that the otherwise general exception of fear of destruction or loss of evidence, or imminent harm to police does not apply to digital data.

Thus, in general a warrant with “probable cause” is needed to search and seize a person’s cell phone.

The U.S. Supreme Court held that examining the phone itself is different from cell phone and GPS or location tracking.

In one Federal Appeals Court case, United States v. Davis in 2015, the court ruled that cell phone location tracking of a person suspected of committing a crime was not in violation of the suspects 4th Amendment rights.

That case was appealed to the U.S. Supreme Court. But the U.S. Supreme Court rejected hearing arguments in that case. Without a decision by the highest court, the lower Federal Appeal Court rulings stand, and may be cited for consideration as precedent.

Arizona courts have ruled that GPS and location tracking by law enforcement agencies was in the in the best interest of public safety. Therefore, police may still track cell phone location for if they suspect criminal activity.

New and pending litigation exists in Arizona and throughout the country challenging issues surrounding cell phone location tracking.

Cell phone searches and privacy rights will continue to be a topic of debate, with litigation and challenge of existing laws due to public outcry and the continued advancements in technology.

A Closer Look at Cell Phone and Mobile Device Forensics

“In Plain English”

Scott Greene, Senior Technology Forensics Examiner shares a closer look at what constitutes digital evidence that may be found when a cell phone is examined:

“The mobile device and its records hold material evidence about the user’s involvement in a crime, if it is properly captured.

Once police have lawful access to the phone, it will be examined by police or independent investigator on their behalf.

Cell phones and in particular smart phones are capable of storing a vast amount of data which can prove to be of interest to police in a criminal investigation.

Smart phones are usually capable of storing user’s contacts, photos, calendars, notes, text messages, multimedia messages, videos, internet browsing history, E-mail communications, and social network communications.

In some cases the mobile device’s history may reveal the particular cellular tower that covered the communication.

If a cell phone was involved in a crime, police are also interested in obtaining the carrier records. It is common practice for police to request these.

The records may validate what was found on the cell phone as well as information the carrier has which may not be on the phone.

This information usually includes:

• Whether the call was originated by the cell phone

• The quantity of data downloaded

• Text messaging history such as date and time of the text message as well as the phone numbers which were sending and receiving text messages

• Plan codes

• Cellular tower number and GPS location for the cellular tower(s) used for the call, text or data exchange

For cell phones the carrier may provide the following:

• Connection date and time
• Call duration
• Number dialed
• Originating phone number *
• Cell phone serial numbers *
• Terminating phone number if the original was changed *

The Carrier may provide this (*) data for text messaging.

Archives and backup files of data contained in the phone may be found on the Internet or a local computer. These files may contain data which was deleted between the time of the backup and when the phone was seized and examined.

To make sure the digital data is available on the cell phone, police are encouraged to have the cell phone examined as soon as possible, to assure the digital data is still on it.”

Scott Greene is a Senior Technology Forensics Examiner at Evidence Solutions, INC.

Criminal Defense Attorney for Felony Drug Crimes Phoenix AZ

“Prepared to Defend” – James E. Novak, DUI & Criminal Defense Attorney

This case illustrates the importance of retaining a criminal defense attorney to protect your rights and defend your charges if you have been accused of a crime.

All felony convictions call for at least one year in prison, as well as other harsh consequences that will jeopardize your future and freedom.

If you are charged with a drug crime, including offenses related to wire and electronic communications, consult James E. Novak, experienced drug crimes defense attorney in Tempe, Arizona.

James Novak, experienced DUI and Criminal Defense Attorney, is a former prosecutor and highly skilled trial lawyer. If retained, he can provide you with a strong defense for your charges.

The Law Office of James Novak offers a free initial consultation for active criminal charges in Phoenix, Mesa, Tempe, Chandler, Gilbert, and Scottsdale, Arizona.

You can contact or call The Law Office of James Novak, (480) 413-1499 and speak with James Novak for your free and confidential initial consultation.

Additional Resources:

• A.R.S. § 13-3417(A) (Use of Wire or Electronic Communications)
• A.R.S. 13-3401 (Drug Definitions)
• A.R.S. § 13-1004 (Facilitation)
• A.R.S. § 13-1003 (Conspiracy)
• Requirements and Exceptions to Lawful Search Warrants in Arizona
• National Library of Medicine – National Institute of Health
• Drug War Facts

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