Wondering if public defender is really "defending"

[leighvanvoreen]

What is the name of your state?`Arizona

A couple of months ago my fiance and I were staying at his mother's apartment for a couple of weeks. During the first week we were there one of the neighbors in the complex was in the middle of moving out, and my fiance ended up helping them move some of their heavier furniture. A few nighs later, his mom was talking about how she needed to do laundry and she didn't have any change, and he remembered that the people who had moved out had left a stackable washer/dryer combo behind in their outside storage area. So he decided to just bring it upstairs to her apartment. This was at 11pm at night, so being that this was a heavy appliance it certainly wasn't quiet on the way up, and another neighbor saw him trying to get it up the stairs and stopped and helped (I'm not sure if he knew where it came from or not). Anyway, obviously it was not something done secretively, and my fiance was under the impression that it had been abandoned by the former occupants.
A couple of days later, at around 7am, my fiance and I are having an "intimate moment" on the fold out bed in the living room when there is a loud knock on the front door. My fiance throws on a pair of pants and goes to the door, tries to see who it is through the peephole, but the glare of the sun is too bright, so he opens the door a smidgeon. There are 3 cops there. Being that I am still totally naked, he asks them to wait a second, and tries to close the door again. The cops push the door and enter anyway, and as my boyfriend had his hand in his pocket to pull out a pipe he had on him, one of the officers pulls a gun on him, followed very quickly by the other two. They say later that they thought he had a knife. My boyfriend had no idea why they were pulling their guns on him and proceeded to ask what was going on, at which time the two male officers grabbed him and wrestled him to the floor, fracturing his nose in the process. They had to take him to the hospital before they took him to jail, so the hospital has on record that he was diagnosed with a facial fracture. Also, just after they put the cuffs on him, one of the officers, with a real pleased look on his face, literally said "Don't **** with the po po's, cuz the po po's will **** you up."
All in all, my fiance was charged with theft, possession of drug paraphenalia, and resisting arrest. He was released a day later on his own recognizance. When his court date came up, he called the court and was informed the case was "scratched". We heard nothing else about it. Then, almost 2 weeks ago, we were walking home from the casino out here, stopped to rest in a grassy area, and we both ended up falling asleep (it was a longggg walk). We wake up to a couple police officers who were very nice, but as is procedure they ran our names through the system. Mine came up clean, but his showed that he had a warrant for those same charges!
So he has been in jail ever since, went to court once where he was assigned a public defender (pretender?) who advised him that if he would sign a plea agreement for 3 years of probation they would drop the theft charge, and that the possession charge would be reduced to a misdemeanor later. They also apparently told him that resisting arrest is a felony. I also want to point out before I get to my questions that I know for a fact that the owner of the apartment complex (which the washer/dryer belonged to) decided not to press charges.
What I want to know is could they have even pursued the theft charge without the owner pressing charges? Was this arrest even legal? They had no search warrant, and they were not given permission to enter the home. And since they fractured his nose, wouldn't that be considered excessive force, making the resisting arrest charge invalid?? I know I probably sound unknowledgeable, and I probably am in this area, but I really just need some answers so that I can know what to do and what to expect. His sentencing hearing is coming up on the 8th, so I want to know if there is anything I can do before he ends up agreeing to something he shouldn't. I know for a first time paraphenalia charge in arizona it is mandatory that they give probation and that they are not allowed to include jail time as a condition of the probation, so to me it doesn't really sound like a deal. It sounds like they are just taking advantage of the fact that he obviously doesn't know the law, and that his main goal right now is just to get out of jail so they figure he will sign anything they tell him to. Can anyone give me some advice? Thank you in advance, I really appreciate it!!! Sorry this was so long, I wanted to make sure I didn't miss anything that might be important.

[Curt581]

Originally Posted by leighvanvoreen

she didn't have any change, and he remembered that the people who had moved out had left a stackable washer/dryer combo behind in their outside storage area. So he decided to just bring it upstairs to her apartment. This was at 11pm at night, so being that this was a heavy appliance it certainly wasn't quiet on the way up, and another neighbor saw him trying to get it up the stairs and stopped and helped (I'm not sure if he knew where it came from or not). Anyway, obviously it was not something done secretively, and my fiance was under the impression that it had been abandoned by the former occupants.

This story is weak beyond words. It'll never fly in court.

He took an appliance at 11:00 at night, that he knew didn't belong to him... because Mom didn't have any change?

but the glare of the sun is too bright, so he opens the door a smidgeon. There are 3 cops there. Being that I am still totally naked, he asks them to wait a second, and tries to close the door again.

He opens the door a crack, sees the cops, panics, and tries to slam the door in their faces. What did you think the cops are going to do?

The cops push the door and enter anyway, and as my boyfriend had his hand in his pocket to pull out a pipe he had on him, one of the officers pulls a gun on him, followed very quickly by the other two. They say later that they thought he had a knife.

So the cops come in, just in time to see him thrust his hand into his pocket. Of course they thought he was going for a weapon. It's called a "furtive movement". He's very lucky he wasn't shot.

The fact that it was discovered to be a pot pipe is even better. He was trying to ditch evidence.

My boyfriend had no idea why they were pulling their guns on him and proceeded to ask what was going on, at which time the two male officers grabbed him and wrestled him to the floor, fracturing his nose in the process. They had to take him to the hospital before they took him to jail, so the hospital has on record that he was diagnosed with a facial fracture. Also, just after they put the cuffs on him, one of the officers, with a real pleased look on his face, literally said "Don't **** with the po po's, cuz the po po's will **** you up."

The physical resistance, by itself, might be a stretch, but when combined with slamming the door in the cops' faces to dispose of evidence, is going to make "Resisting" a tough case to beat.

I know for a fact that the owner of the apartment complex (which the washer/dryer belonged to) decided not to press charges.

The victim doesn't "press" charges. The District Attorney does. He decides if a case proceeds or not.

What I want to know is could they have even pursued the theft charge without the owner pressing charges?

Yes. Obviously, someone complained about the missing appliance. The other charges came as a result of the police investigation. The victim can later say they don't want him to be charged, but the DA had the final decision on whether or not to proceed.

Was this arrest even legal?

In my opinion, yes, it was.

They had no search warrant, and they were not given permission to enter the home.

They didn't need one. According to your post, his apparently suspicious actions in seeing the cops and slamming the door in their faces gave them exigent circumstances to believe he was attempting to escape or destroy evidence.

And since they fractured his nose, wouldn't that be considered excessive force, making the resisting arrest charge invalid??

No. If he hit his face on the floor in process of being taken down, it's not excessive. If the broken nose was a result of them actively striking him in the face, then it might be. Proper use of force is generally defined as that level required to overcome the subject's resistance, and gain control. In other words, if someone goes limp, pain compliance can be used. If someone uses fists, the cops can use an impact weapon, like a baton. If someone uses a knife, the cops can shoot him.

Even if it's later found that it was excessive, that does not negate what your fiance did by resisting in the first place.

His sentencing hearing is coming up on the 8th, so I want to know if there is anything I can do before he ends up agreeing to something he shouldn't.

If he's up for sentencing, that would mean he's already pled or been found guilty, right?

If so, your initial questions are moot. Why didn't he ask his attorney this stuff?

[leighvanvoreen]

Is there anyone around here who actually gives the requested for advice on these forums? It seems to me from all the posts and replies that I have read that all the feedback people are receiving is ridicule and character judgement from people who have the mentality of correctional officers rather than legal professionals. Obviously there are ways to challenge criminal charges, or criminal defense lawyers wouldn't exsist. I realize this is a free forum, however it seems reasonable to me for someone to want to know the possibilities before actually paying an attorney to represent them. Basically what I would have gotten from that reply if I didn't know the laws a little bit is that it was a hopeless case and not to even bother trying to get a criminal defense lawyer. Are you not trying to generate profit in your profession??
Also, try responding to what is actually written instead of beefing up parts of it to add dramatic flair to your replies. My fiance did not at all try to "slam the door" in the cops' face, nor was he panicked or acting suspiciously. He merely asked them to wait a moment and closed the door as I was still COMPLETELY NAKED, and when they proceeded with entering they got the priviledge of watching me get dressed. I don't think it's unreasonable to expect that kind of privacy. If anyone else had come to the door they would have gotten the same response, and I would hope no one else would be so abhorrently rude to barge in when they were politely asked to wait. As far as him pulling the pipe out of his pocket, I concede that he was trying to hide it, however, it was not "evidence" as it was not related to the report they were investigating.
Additionally, I don't know where you live, but here in Arizona people are constantly throwing away or discarding things like that washer and dryer. Friends of mine have found things such as a 35 inch color tv in perfect working order simply thrown in a dumpster. Someone got a new tv and simply put their old one in the box the new one came in and got rid of it. People who don't have to manage on a budget can afford to throw away things that some of us would take the extra time to advertise and try to sell second hand to get back a little bit of our original investment. It is not unfathomable, or even odd to believe that someone would just leave their washer/dryer if they no longer needed them.
I hardly think that anyone who comes here for legal advice is looking for the sarcastic, self-righteous, and extremely condescending responses that seem to be most prevalent here. Some of you people would probably put just about anyone in jail. The responses come off a bit like a Beverly Hills teenager looking down on their Los Angeles peers who are dressed in Wal Mart clothing instead of Donna Karan.

[Curt581]

I tried to explain police procedure. You asked specific questions, I answered them honestly.

He may or may not have slammed the door, but the police probably perceived that he did, for the reasons stated above. As it turns out, they were right.

As for the pipe, it was in fact, evidence. It doesn't have to be part of the initial investigation to be legitimate.

If you were looking for someone to tell you what you wanted to hear, instead of telling you the truth, you should have said so in the opening paragraph.

Now why don't you get a big bucket of sand, (not an 'abandoned' one) and pound it.