.
Texas had all the numbers necessary to immediately identify Rozita Swinton and may in fact have done so. Strange goings on that mask the time of initial contact between Sgt. Long and Sgt. Mandel of the CSPD have been found in "Exhibit 3." A conversation took place between Mandel and Long, and may have begun before the day Mandel notifies Sgt. Hugh Velasquez to formalize CSPD and Texas Ranger communication.
Texas had all the numbers necessary to immediately identify Rozita Swinton and may in fact have done so. Strange goings on that mask the time of initial contact between Sgt. Long and Sgt. Mandel of the CSPD have been found in "Exhibit 3." A conversation took place between Mandel and Long, and may have begun before the day Mandel notifies Sgt. Hugh Velasquez to formalize CSPD and Texas Ranger communication.
The defendant, Warren Jeffs, by and through counsel undersigned, hereby opposes the State's attempt to deny him an evidentiary hearing in connection with his motion to Suppress Evidence Obtained in Unlawful Searches of FLDS Property. The State has requested a hearing to determine whether the defendant is entitled to an evidentiary hearing pursuant to the procedures set forth in Franks v. Delaware, 438 U.S. 154 (1978). However, the State neglects the fact that there are many issues raised in the motion to suppress that do not relate to any alleged Franks violation and for which the defendant is clearly entitled to an evidentiary hearing pursuant to rule 16.2 of the Arizona Rules of Criminal Procedure. in any event, the defendant has clearly met and exceeded the prerequisites for a Franks hearing due to the blatant nature of the Franks violation involved in the present case. The State's attempt to deny the defendant his right to an evidentiary hearing should be denied for the reasons set forth in the attached Memorandum of Points and Authorities.
RESPECTFULLY SUBMITTED this 9 day of January, 2009.
WRIGHT STANISH & WINCKLER PICCARETTA DAVIS PC
By Richard A. Wright By Michael L. Piccarreta
Attorney for Warren Jeffs Jefferson Keenan
Attorney for Warren Jeffs
MEMORANDUM OF POINTS AND AUTHORITIES
I. The Defendant is Entitled To An Evidentiary Hearing Regarding His Motion To Suppress Under Rule 16.2 Of The Arizona rules of Criminal Procedure.
The easiest reason for this Court to deny the State's request for a hearing to determine whether defendant is entitled to an evidentiary hearing based on Franks is the fact that the defendant is entitled to an evidentiary hearing on his motion to suppress, regardless of any claims of Franks violations.
Rule 16.2. of the Arizona Rules of Criminal Procedure governs the procedure for judicial determinations of a defendant's motion to suppress evidence obtained by the State in criminal proceedings. To begin with:
Rule 16.2, which provides the "[p]roceedure on pretrial motions to suppress evidence," requires the Court to inform unrepresented defendants whenever a constitutional issue arises concerning the acquisition of evidence that may warrant an evidentiary hearing. See Ariz.R.Crim.P 16.2(a). And the rule establishes that it is the prosecutors burden at such a hearing to prove "the lawfulness in all respects of the acquisition of all the evidence" the state intends to use at trial. Ariz.R.Crim.P. 16.2(b).
State v. Bejarano,__Ariz.__,__P.3d__,2008 WL 5205421 at *4 (Ct.App.Div.II, December 21, 2008) [Emphasis added].
Under circumstances such as those in the present case, the defendant is only required to make a prima facia showing that evidence should be suppressed. The State is apparently unaware that the Arizona Supreme Court has stated that a "Defendant may fulfill this burden of going forward by bringing to the court's attention - through argument, legal theory or testimony - the defects in the State's argument." State v. Hocker, 113 Ariz. 450, 455, n. 11, 556 P2d 784, 789 n. 11 (1976), disapproved on other grounds, State v. Jarzab, 123 Ariz. 308, 311, 599 P.2d 761, 764 (1979). *1
_____________________
*1 The State erroneously claims that "the defendant has done no more than make a [sic] conclusory assertions supported only by the arguments in the pleadings." [Request for a Hearing, p. 2]. Even if the State's claim were true, it would be sufficient to satisfy the defendant's burden under Hocker.
_____________________
It is thus established practice in Arizona courts that the Court holds an evidentiary hearing "[w]henever an issue concerning the constitutionality of the use of a specific evidence against a defendant arises before trial...." Rule 16.2(a), Arizona Rules of Criminal Procedure. An allegation of a Franks violation is not necessary to obtain an evidentiary hearing although, of course, that issue will be involved in some cases. Once the defendant has made the required prima facia, the state bears the burden of proving that the evidentiary hearing in this matter if it willing to concede the unconstitutionality of the search because the State will not have met its burden.
The principle constitutional issues (there are many sub-issues) that must be addressed at the upcoming hearings are:
- Overbreadth of the warrants
- Whether the search actually conducted exceeded the permissible scope of the warrants
- Whether law enforcement officers acted with reckless disregard as to the false information in the search warrant affidavits
- Whether, under the totality of circumstances, the information from the unknown caller provided probable cause for the issuance of the warrants
- Whether the exposure of Arizona law enforcement officials to the illegally seized evidence has tainted the present proceedings
In his motion to suppress, the defendant has presented evidence and argument with regard to all of these issues which he is now able to supplement after the Rule 15 interviews of the Texas law enforcement officials. *2 The State now bears the burden of proving the legality of the searches and seizures with respect totality of these areas, only one of which involves allegations of Franks violations.
_______________
*2 For example, both Schleicher County Sheriff Doran and Texas Ranger Sgt. (now Lt.) Long were aware that there were multiple residences on the nearly 1,700 acre FLDS premises, and they searched all of them anyway. [Doran Interview, December 18, 2008. p. 6; Long Interview, December 18, 2008, p. 50]. The defendant has also produced evidence showing that Texas Law enforcement officials refused to obey the dictates of the warrant under whose authority they were purportedly acting by seizing DNA samples, bucal swabs, blood samples, and pubic hair, that the magistrate expressly struck from the warrant.
________________
Accordingly, under the well established procedures in Arizona courts, if the State wishes to defend the constitutionality of the searches and seizures in any of these non-Franks areas, the Texas law enforcement officials will be required to testify at the upcoming evidentiary hearing on the defendant's Motion to Suppress, regardless of whether they committed any Franks violations.
II. The Defendant Clearly Met And Exceeded The Prerequisites For A Hearing Under Franks v. Delaware.
The State's attempt to deny the defendant his right to an evidentiary hearing is yet another example of the "Texas two step" previously referred to by the defendant. However, this time the "two step" is more literal. The first step to obstruct the truth finding process during the Rule 15 interviews of the Texas law enforcement authorities by blocking inquires into their failure to investigate the possibility that the calls from the unknown caller were a hoax, as evidenced by the ease with which it was determined to be a hoax when the authorities actually bothered to try. *3 The second step, after blocking defendant's efforts to develop this specific information, was to file the present motion seeking to deny the defendant an evidentiary hearing by decrying the lack of specific information and claiming that "defendant has done no more than make a [sic] conclusory assertions supported only by arguments in the pleadings." [Request for Hearing, p 2]. The State first denies the defendant the ability to further develop specific factual information, and then complains about the lack of specific factual information. Thus, the "two step" is complete.
________________
*3 Although the State's response neglects to mention it, there is no dispute that the affidavit was a lie: There was no such (Here the name "Sarah" is apparently redacted) and she was not being abused by (Here the name "Dale Barlow" is apparently redacted). The only real question is whether the Texas authorities can plausibly explain why they ignored all the earmarks of this hoax. Perhaps it is obvious why the State of Texas (with the full acquiescence of the State of Arizona) refused to allow any questions of the subject. (apparently Dale Barlow). The only real question is whether the Texas authorities can plausibly explain why they ignored all the earmarks of this hoax. Perhaps it is obvious why the State of Texas (with the full acquiescence of the State of Arizona) refused to allow any questions of the subject. (apparently Dale Barlow).
________________
The State's efforts to obstruct and impede the truth finding process relation to the illegal raid of the FLDS property in Texas will be the subject of a separate motion for sanctions including striking the State's response to the motion to suppress. *4 However, for the purposes of the present motion, defendant submits that the State's tactics are transparent: the State has blocked inquiry into the illegal actions of the Texas law enforcement officials during the Rule 15 interviews, and is now trying to keep the same facts from being developed before this Court at the upcoming evidentiary hearing on this matter. No law enforcement agency should be able to shield its unconstitutional conduct from judicial scrutiny in this manner. The State's request must be denied.
________________
*4 The defendant is also in the process of preparing his reply to arguments raised in the State's response to his motion to suppress based upon information gathered in the recently completed Rule 15 interviews.
_________________
It is difficult to conceive of a more blatant example of reckless disregard for the truth or falsity of information that is set forth in a search warrant affidavit. This reckless disregard is revealed by the fact that, under the totality of the circumstances, there were obvious reasons to further investigate the claim of the unknown caller. For example, Sgt. Long of the Texas Rangers personally attended a press conference staged by outspoken anti-FLDS advocate Flora Jessop at which she inveighed against the FLDS and its beliefs and practices. After the press conference, Sgt. Long had a face to face interview with Flora Jessop and asked her specifically if she had any information about criminal activity by members of the FLDS. Flora Jessop assured Sgt. Long that she had such information but Sgt. Long determined that there was no substance to Flora Jessop's allegations. In his words, no "meat and potatoes."
She had, she said a lot of things but there were never meat and potatoes that we as investigators in the state of Texas could say there was a violation of law happening out there or that a victim existed like what she was saying.
[Long Interview, p. 40].
Obviously, if enemies of the FLDS are willing to make unsubstantiated claims of criminal activity in a face to face interview, any reasonable law enforcement official would recognize the possibility that similar accusations would come from an unknown caller who was hostile to the FLDS. The fact that the Texas law enforcement officials included the unknown caller's allegations in the search warrant as if they were true, and without even minimal investigation is reckless disregard for the truth at its finest (or worst). After personally experiencing face to face baseless accusations, the Texas law enforcement authorities did nothing to determine whether allegations from the unknown caller were also baseless allegations from an enemy of the FLDS. Thus the defendant has presented and will present (based on Rule 15 interviews) evidence showing that under the totality of the circumstances, the Texas law enforcement authorities did nothing to establish the veracity, reliability, or credibility of the information provided from the unknown caller.
This failure to grasp the basic fundamentals of police investigation is simply incomprehensible, especially in light of the actions of ll the other agencies who received similar unsubstantiated, anonymous allegations against members of the FLDS. For the same reason, this is not a matter of hindsight being "20/20." These other agencies were competent enough to determine that further investigation was necessary at the time, rather than running off to secure a search warrant making arrangements for 152 officers to conduct a raid with a SWAT team, an armored personnel carrier, an unmanned drone, and a helicopter.
Contrary to the State's claims the defendant has provided additional specific factual information about the Texas authorities' reckless disregard respecting this hoax and has shown the ease with which the hoax could have been discovered. Exhibit 3 to Defendant's Motion to Suppress is an unsealed Colorado arrest warrant and affidavit that shows Texas authorities were well aware of the fact that two telephones utilized to make the numerous calls to the "Crisis Hotline" in San Angelo, Texas, were registered telephone numbers outside the State of Texas. Texas authorities were immediately able to determine that these telephone numbers were associated with an individual who made numerous "false reports of sexual abuse to the police and other agencies." [Exhibit 3, attachment A, p.5].
The defendant has also established a Franks violation via material omissions in the affidavit in support of the second search warrant, i.e., the failure to advise the Magistrate that Sherrif Doran actually spoke to the suspected perpetrator, (Apparently Dale Barlow's name is again redacted) in Arizona by cell phone, confirming his driver's license number and the fact that he was in Arizona, and further learned that the (probably Dale Barlow, redacted) they were looking for was not at the YFZ Ranch. These facts, under the totality of the circumstances, obviously severely undercut the credibility of the information provided from the unknown caller and mandated further investigation. In addition, these "material omissions" were obviously essential to the determination of whether there was probable cause to believe that (Apparently Dale Barlow redacted) was "located" on the YFZ Ranch and posed "an immediate risk of physical or sexual abuse" of (Sarah/Rozita Swinton apparently redacted) as had been previously averred to the Magistrate under oath. It is undisputed that the Texas authorities knew these facts yet did not return to the magistrate with this information that completely undercut the initial showing of probably cause and also omitted these facts from the second search warrant affidavit. Contrary to the State's assertions, these are uncontradicted, specific facts that support defendant's claim of a Franks violation.
All of these factual circumstances, taken collectively or individually, display a reckless disregard for the truth as they constitute "obvious circumstances that impeach the credibility of the information in the affidavit." State v. Carter, 145 Ariz. 101,109, 700 P.2d 488, 496 (1985) [citing United States v. Davis, 617 F.2d 677, 694 (D.C. Cir. 1979)]. See also State v. Poland, 132 Ariz. 269, 279, 645 P.2d 784, 794 (1982) [reckless disregard can be proven by "obvious reasons to doubt the veracity of the informant"][quoting Davis, supra].
Accordingly, the defendant has clearly exceeded any requirements necessary to obtain a hearing pursuant to Franks v. Delaware inasmuch as he has alleged reckless disregard for the truth and specifically pointed out the portions of the affidavit claimed to be false (everything in the affidavit except for the affiant's qualifications), made a detailed offer of proof in his motion to suppress stating the supporting reasons, and has shown clearly that, without the false information, there was no probable cause for the warrant. In any event, the defendant is entitled to an evidentiary hearing on the numerous additional constitutional issues he has raised, including but not limited to Franks, and the State's attempt to deny his right to an evidentiary hearing must be denied.
RESPECTFULLY SUBMITTED this 9th day of January, 2009.
WRIGHT STANISH & WINCKLER PICCARETTA DAVIS PC
By Richard A. Wright By Michael L. Piccarreta
Attorney for Warren Jeffs Jefferson Keenan
Attorney for Warren Jeffs
Sphere: Related Content
16 comments:
"I'm shocked, shocked and outraged, I'm outraged and shocked. . . "
But three days later apparently they suspended the issue until May: The sect's attorneys also agreed to suspend efforts to suppress use of that evidence in Jeffs' Arizona trial until after the May hearing.
http://www.sltrib.com/Polygamy/ci_11436061
Still great stuff though Z. I rather suspect this is all coming back up then.
It will be kind of like suppressing Warrens confession in the Purgatory Jail, in Hurricane Utah. To think I lived in Hurrican' for nearly 10 years!
It will no doubt be interesting!
"Z":
"But three days later apparently they suspended the issue until May: The sect's attorneys also agreed to suspend efforts to suppress use of that evidence in Jeffs' Arizona trial until after the May hearing.
http://www.sltrib.com/Polygamy/ci_11436061"
I heard, from a reliable source, that is not accurate.
Nevertheless, if they're doing it may, they're doing it. The perpetual foot dragging on the Rozita issue may work it's way around to being dealt with. As pointed out in my next post, Arizona and Texas are covering each other's backside by perpetuating the notion that there really is a "Sarah," by redacting her name.
Additionally, quoting from the SL Trib article, this is a Texas case on evidentiary matters.
"The judge also set May 13 to hear arguments for throwing out evidence seized from the Yearning For Zion Ranch, which authorities raided in April after receiving a call alleging abuse. The call is now believed to have been a hoax."
Warren Jeffs case is in Arizona.
Never Mind.
I see the line below now, I spoke too soon.
"The sect's attorneys also agreed to suspend efforts to suppress use of that evidence in Jeffs' Arizona trial until after the May hearing."
It still doesn't matter, agreeing to have the hearing later means Arizona agreed to the hearing.
"Among other things, it seems Texas knew, prior to going into the YFZ ranch, the name of Rozita Swinton..."
I have read it twice and am not seeing this clearly. Help if you could.
TIA
:)
I know the depositions are not all completed. This motion seemed to have been filed a bit early knowing that.
The statement has a little slack in it, but here it is, using the past tense.
"Contrary to the State's claims the defendant has provided additional specific factual information about the Texas authorities' reckless disregard respecting this hoax and has shown the ease with which the hoax could have been discovered. Exhibit 3 to Defendant's Motion to Suppress is an unsealed Colorado arrest warrant and affidavit that shows Texas authorities were well aware of the fact that two telephones utilized to make the numerous calls to the 'Crisis Hotline' in San Angelo, Texas, were registered telephone numbers outside the State of Texas. Texas authorities were immediately able to determine that these telephone numbers were associated with an individual who made numerous 'false reports of sexual abuse to the police and other agencies.' [Exhibit 3, attachment A, p.5]."
Oh would I love to see Exhibit 3, attachment A, p.5. I lust for it.
I get the impression k, that Warren's attorneys take the Flora issue a bit lightly. They want to depose her but she's a bonus. Her deposition is likely a justifiable fishing expedition, no one knows what may come out.
Personally, I would have wanted her on the record prior to deposing Brooks, Connor and Doran, but they're the attorneys, not I. Judging though from Long's dubious treatment of her tall tales, there may not be much commerce between her and Texas LE.
I don't think we will hear anything about her Deposition until the hearing, whenever that occurs. I'm sure they will have done it by then.
If she says something important, damning, expect a flurry of motions to depose others after her deposition.
????
"Oh would I love to see Exhibit 3, attachment A, p.5. I lust for it."
It is:
"Exhibit 3 to Defendant's Motion to Suppress is an unsealed Colorado arrest warrant and affidavit "
That has to be:
THIS
ummm...
How did the warrant get 'unsealed?'
It made interesting reading.
As usual, I'm confused.
I thought the raid happened April 3-4 - but the discussion between Long et al was April 13 - almost 2 weeks after - so how is that BEFORE the raid?
First of all, in the Exhibit, there is no time frame for the conversation of Sgt.'s Mandel and Long.
Next, Piccarreta et al are asserting it would seem, from the wording, that the origin of the call is known.
Referring to what must be "Exhibit 3, attachment A" there is this, confirming the unknown time frame of first contact between Long and Mandel. We know when Mandel spoke to Velasquez at CSPD, but no date is given for Long and Mandel's conversation.
"On April 13, 2008, I was contacted by Sergeant Hugh Velasquez (1514D) regarding information he had obtained from Sergeant Sean Mandel. Sergeant Mandel told Sergeant Velasquez he had been contacted by the Texas Rangers in regard to their investigation into the Yearning for Zion (YFZ) Ranch. Sergeant Mandel related Texas Ranger Brooks Long had advised he had two cellular telephone number listings from the Colorado Springs area (719-351-0913 and 719-243-2866). Sergeant Mandel was aware that the phone number, 719-351-0913, that was possibly related to the reporting party for the YFZ Ranch incident in Eldorado, Texas, was also identified in a prior CSPD case report."
It is also stated that the number being used to call is repeatedly used.
I find it odd that Sgt. Mandel "recalled" the number and I find it odd that the first record of the problem is his "mentioning" it to Sgt. Velasquez as a result of contact from Sgt. Brooks Long. No record is made of when it was that Brooks Long called, only a record of the first internal conversation at CSPD.
It would seem that Warren's attorneys are putting two and two together and determining the number was known and Sgt. Long knew where to call for information. I'm not saying it's true, but that's what they are asserting, that the information was known prior to the raid. There may be information in Brooks Long's deposition, when added to this Exhibit, make it much more clear.
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