Frimmel v. Hon. sanders/state , 236 Ariz. 232 ( 2014 )

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
BRET R. FRIMMEL, Petitioner,
v.
THE HONORABLE TERESA A. SANDERS, Judge of the SUPERIOR
COURT OF THE STATE OF ARIZONA, in and for the County of
MARICOPA, Respondent Judge.
STATE OF ARIZONA, Real Party in Interest.
No. 1 CA-SA 14-0166
FILED 11-25-2014
Petition for Special Action from the Superior Court in Maricopa County
No. CV2014-103633-001
The Honorable Teresa A. Sanders, Judge
JURISDICTION ACCEPTED; RELIEF GRANTED
COUNSEL
Steptoe & Johnson LLP, Phoenix
By Paul K. Charlton, Quintin H. Cushner
Co-Counsel for Petitioner
Polsinelli PC, Phoenix
By Leon B. Silver
Co-Counsel for Petitioner
Maricopa County Attorney’s Office, Phoenix
By Arthur Hazelton
Counsel for Real Party in Interest
FRIMMEL v. HON. SANDERS/STATE
Opinion of the Court
OPINION
Judge Kenton D. Jones delivered the opinion of the Court, in which
Presiding Judge Peter B. Swann and Judge Michael J. Brown joined.
J O N E S, Judge:
¶1 Defendant Bret Frimmel petitions for special action review of
the trial court’s denial of his request for an evidentiary hearing pursuant to
Franks v. Delaware, 438 U.S. 154 (1978), and State v. Buccini, 167 Ariz. 550,
810 P.2d 178 (1991), to determine the validity of five search warrants.
Because we find that Frimmel has made a substantial showing that the
warrants were issued based upon supporting affidavits that the affiants
knew or should have known contained recklessly false statements or
omissions of relevant and known facts, we accept special action jurisdiction
and remand to the trial court with directions to conduct a Franks hearing.
FACTS1 AND PROCEDURAL HISTORY
¶2 Frimmel is the owner of Uncle Sam’s, a restaurant chain with
multiple locations in Arizona. The Maricopa County Sheriff’s Office
(MCSO) received information from two informants suggesting Uncle Sam’s
illegally hired undocumented persons to work at its restaurants. In July
2013, following a year-long investigation, MCSO obtained three search
warrants, supported by three virtually identical affidavits, to search Uncle
Sam’s Phoenix and Peoria locations and Frimmel’s home. During the
execution of the search warrants, ten employees were arrested, four of
whom were ultimately convicted of identity theft.
¶3 In January 2014, upon completion of the investigation,
Frimmel was arrested and charged with multiple felony offenses related to
knowingly hiring and employing individuals with false identification. That
1 The State’s response to Frimmel’s special action petition argues only that
this Court should decline special action jurisdiction, and does not refute or
even address Frimmel’s factual allegations. Therefore, for the purposes of
our evaluation of the need for a Franks hearing, we accept the factual
allegations of the petition as true. By employing this standard of review,
we do not bind the trial court to any findings following its evaluation of the
evidence.
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same day, MCSO obtained two additional warrants, based upon two
additional affidavits, to search the cell phones of Frimmel and an Uncle
Sam’s manager.
¶4 Before trial, Frimmel moved to suppress the evidence
obtained during the execution of the five warrants, arguing there was
insufficient probable cause to support the issuance of the warrants because
the underlying affidavits contained numerous false statements and omitted
known, relevant information. He sought a Franks hearing to confront and
cross-examine the affiants. To support his request, Frimmel detailed each
statement in the affidavits he believed to be false or incomplete, and
identified the portions of public records and MCSO’s own reports that
contained contradictory and relevant omitted information. The following
paragraphs recount misrepresentations contained within, or material
omissions from, the affidavits supporting the warrants, as demonstrated by
the documentation provided by Frimmel on review and, previously, to the
trial court.
I. Credibility of Informants
¶5 The affidavits do not reveal that the two initial informants
were married. The affidavits state that the husband worked “mostly” at
Uncle Sam’s Scottsdale location, and left when that location closed in
August 2012. To the contrary, Frimmel states the husband worked
exclusively at the Scottsdale location until terminated from his employment
in June 2012. The husband was subsequently convicted of felony theft for
embezzling funds from Uncle Sam’s, a fact also omitted from the
underlying affidavit. Moreover, MCSO possessed Arizona Department of
Economic Security (ADES) records, identified and referenced within the
search warrant affidavits, confirming neither informant had worked for
Uncle Sam’s since the third quarter of 2012, at the latest.
¶6 Frimmel also identifies information tending to undermine the
wife’s credibility. First, Frimmel notes the wife made the initial call to
authorities regarding Uncle Sam’s hiring practices on the same day her
husband was arrested for the above-referenced embezzlement. Second, the
wife’s conviction for possession of drug paraphernalia was not disclosed.
Third, according to Frimmel, the wife voluntarily quit her position with
Uncle Sam’s in January 2011 after being admonished for poor work
performance, and documentation provided indicates she lost her claim
against Uncle Sam’s for unemployment benefits. Finally, Frimmel states
the wife worked only as a server at one location, and therefore possessed
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FRIMMEL v. HON. SANDERS/STATE
Opinion of the Court
limited knowledge, if any, of the alleged illegal hiring practices for cooks
and dishwashers. This information was not contained in the affidavits.
¶7 Frimmel further alleges the affidavits did not fully disclose
the circumstances surrounding the four convicted former Uncle Sam’s
employees who participated in a “free talk” with MCSO about Frimmel’s
alleged criminal activity. The affidavits state the four ex-employees were
“convicted of identity theft and forgery charges.” However, Frimmel
provided public documents indicating each was convicted of a single class
six felony for taking the identity of another, and was provided significant
benefit in exchange for his cooperation with law enforcement — namely,
release on his own recognizance and the deferral of action related to his
immigration status, which allowed each to be lawfully present and
employed in the United States during the period of deferral.
II. Lack of Information Linking the Phoenix Location or Frimmel’s
Residence to Illegal Activity
¶8 Frimmel notes the affidavits did not disclose that neither the
husband nor the wife had any personal knowledge regarding Frimmel’s
home or Uncle Sam’s Phoenix location. Frimmel states the informants
never worked at the Phoenix location. And although the husband claimed,
more than six months after his employment was terminated, that Frimmel
said he kept business records in his home, the husband admitted he did not
know which home Frimmel was referencing, and the residence that was
ultimately searched was not owned by Frimmel during the husband’s
period of employment. Moreover, the affidavits omitted that surveillance
of Frimmel’s residence did not reveal any evidence suggesting it was used
as a business office or place to maintain business records.
¶9 The affidavits also stated that vehicles belonging to
employees suspected of working illegally were observed in the parking lot
of two restaurant locations and Frimmel’s personal residence. However,
MCSO’s own records reflect that no employee vehicles were ever observed
at Frimmel’s residence, and that it did not conduct any surveillance at the
Peoria location.
¶10 Further, although the affidavits asserted that the Maricopa
County Assessor’s Office listed a business address for “Uncle Sam’s” at
Frimmel’s home, public records reflect Frimmel’s property as a residence,
and do not contain any address information related to Uncle Sam’s.
Additionally, the ADES records, in MCSO’s possession, do not establish
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Opinion of the Court
any link to the residential address, but instead list the Peoria location as
Uncle Sam’s business address.
III. Stale Information
¶11 The affidavits stated the information obtained from the
husband and wife was current as of February 2013. Based upon the facts
submitted by Frimmel, the husband’s personal knowledge of Uncle Sam’s
operations ended upon his termination in June 2012, and the wife’s ended
upon her resignation in January 2011.
¶12 With regard to the cell phone warrants, the affidavits contain
no facts establishing probable cause that Frimmel used the cell phone “on
or about the 1st day of October, 2013,” when the affidavit alleges criminal
activity occurred. Frimmel contends no evidence exists within the reports
detailing MCSO’s investigation to suggest Frimmel engaged in any
criminal conduct after July 17, 2013, more than six months prior to the
issuance of these warrants.
¶13 Frimmel further argues there was no evidence indicating cell
phones or telephones were ever used to facilitate the criminal activity
alleged.
IV. Evidence Regarding Hiring Practices
¶14 The affidavit stated the husband “was positive no employees
had to fill out the A-4 state tax form.” Yet, the MCSO report specifically
states the informant was “not positive” if employees were required to fill
out this form. The husband was further quoted as saying Frimmel “never
makes photocopies of identifications presented by employees,” when
photocopying employee identification is irrelevant as it is not required by
law.
¶15 Additionally, Frimmel identifies statements made by the four
convicted ex-employees to MCSO that contradict the affdiavits; these
omitted statements indicate Frimmel followed lawful hiring procedures by
requiring Social Security cards and photo identifications, and instructed his
manager to watch employees fill out applications. According to Frimmel,
each ex-employee also stated Frimmel was not involved in the hiring
process, and three specifically stated they acted on their own to obtain the
forged identification used to gain employment. This information was
omitted from the warrant applications.
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Opinion of the Court
V. Suggestion of Unrelated Criminal Drug Activity
¶16 It is undisputed there has never been any allegation regarding
drug use or trafficking in this case. However, the affidavit suggested
otherwise by including the following paragraph:
It is also my experience that people who deal in quantities of
illegal drugs have to communicate to successful [sic] control,
operate, and facilitate an illegal drug trafficking organization.
Telephones, pagers, and cellular telephones are some of the
common forms of electronic communications used by drug
trafficking organizations. They communicate by voice, text,
video, instant messenger push to talk “Walkie-Talkie style”
communication and photographs to avoid police detection.
VI. Other Circumstances Surrounding Collection of Information
¶17 The affidavit states that MCSO received an anonymous tip in
October 2012 regarding the Uncle Sam’s Scottsdale location. According to
the MCSO report provided by Frimmel, the only tip it received related to
the Peoria location.
¶18 The magistrate was not advised that the affidavits were
based, at least in part, upon information obtained by a deceased MCSO
officer found in possession of illegal drugs, MCSO evidence bags, and
hundreds of stolen driver’s licenses, identifications, license plates,
passports, airport security clearance cards and wallets.
¶19 The affidavit used to support the search of Frimmel’s cell
phone states that an unidentified database connected Frimmel to the phone
number, and that a voicemail message identified Frimmel by name.
Frimmel again points to MCSO’s investigation reports in noting the
affidavit omits MCSO actually recovered the phone during Frimmel’s
arrest, and obtained the phone number through a warrantless extraction of
information the next day.
¶20 Frimmel identifies inconsistencies regarding even seemingly
insignificant facts in the case, noting the cell phone affidavits state the
original search warrants were executed on July 7, 2013 — ten days earlier
than they were actually executed — and that Frimmel’s manager was
actually an owner of Uncle Sam’s.
¶21 The remaining information supporting the warrants
authorizing the search of Uncle Sam’s Phoenix and Peoria locations and
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FRIMMEL v. HON. SANDERS/STATE
Opinion of the Court
Frimmel’s personal residence consisted of MCSO’s discovery of a large
number of “discrepancies” regarding the Social Security numbers Uncle
Sam’s employees provided to ADES. These discrepancies included Social
Security numbers associated with more than one name, more than one
address, only an out-of-state address, or for which there was no record. No
additional information was provided to support the cell phone warrants.
JURISDICTION
¶22 This Court has discretion to accept special action jurisdiction,
Potter v. Vanderpool ex rel. Cnty. of Pinal, 225 Ariz. 495, 498, ¶ 6, 240 P.3d 1257,
1260 (App. 2010), and will generally do so only in cases that raise issues of
statewide importance, issues of first impression, pure legal questions, or
issues that are likely to arise again. Luis A. v. Bayham-Lesselyong ex rel. Cnty.
of Maricopa, 197 Ariz. 451, 452-53, ¶ 2, 4 P.3d 994, 995-96 (App. 2000) (citing
Andrade v. Superior Court, 183 Ariz. 113, 115, 901 P.2d 461, 463 (App. 1995)).
Special action jurisdiction may also be appropriate where there is “no plain,
adequate or speedy remedy by appeal, and justice cannot be obtained by
other means.” Id. (citing Nataros v. Superior Court, 113 Ariz. 498, 499, 557
P.2d 1055, 1056 (1976)).
¶23 Magistrates are asked to issue search warrants based upon the
integrity of their supporting affidavits, and in the course of those efforts,
must rely upon affiants to provide truthful, accurate, and complete
information to substantiate the existence of probable cause. An important
purpose of the defendant’s right to challenge the sufficiency of probable
cause, through a Franks hearing, is “to mitigate the dangers of the ex parte
procedure used to obtain a search warrant, and to deter over-zealous
officers from supplying false information in their efforts to obtain access to
the constitutionally protected privacy of [the defendant].” Buccini, 167 Ariz.
at 558, 810 P.2d at 186 (citing Franks, 438 U.S. at 168-69).
¶24 Here, Frimmel argues he was improperly denied a hearing to
examine the sufficiency of probable cause supporting five separate
warrants where the supporting affidavits misstated facts contained within
the agency’s own reports, omitted crucial information regarding the depth
and breadth of informants’ actual knowledge and possible biases, and
overstated the evidence against the defendant concerning the alleged
crimes. Although a defendant could address the denial of a Franks hearing
on direct appeal, the latitude afforded to law enforcement when providing
information, under oath, to support a magistrate’s issuance of a search
warrant is a matter of statewide importance. We therefore accept
jurisdiction of this special action.
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FRIMMEL v. HON. SANDERS/STATE
Opinion of the Court
STANDARD OF REVIEW
¶25 We review the denial of a request for a Franks hearing de novo.
United States v. Reeves, 210 F.3d 1041, 1044 (9th Cir. 2000). Additionally, the
legal determination of probable cause, based upon a complete and accurate
search warrant affidavit, is reviewed de novo. See Buccini, 167 Ariz. at 555-
56, 810 P.2d at 183-84.
DISCUSSION
¶26 The Fourth Amendment to the U.S. Constitution requires a
search warrant be issued only upon probable cause. U.S. Const. amend. IV;
State v. Pike, 113 Ariz. 511, 513, 557 P.2d 1068, 1070 (1976). The existence of
probable cause must be determined by a detached, disinterested magistrate
after considering sworn statements. Ariz. Rev. Stat. §§ 13-3913 to -3915
(2014); Pike, 113 Ariz. at 513, 557 P.2d at 1070. Given the potential for abuse
of the ex parte procedure by which warrants are issued, the defendant may
challenge a search warrant based upon false or incomplete information.
Buccini, 167 Ariz. at 558, 810 P.2d at 186 (citing Franks, 438 U.S. at 168-69).2
¶27 Specifically, a defendant is entitled to a hearing to challenge a
search warrant affidavit when he makes a substantial preliminary showing
(1) that the affiant knowingly, intentionally, or with reckless disregard for
the truth included a false statement in the supporting affidavit, and (2) the
false statement was necessary to the finding of probable cause. State v.
Poland, 132 Ariz. 269, 279, 645 P.2d 784, 794 (1982) (citing Franks, 438 U.S. at
155-56). A Franks challenge is also authorized when it has been shown “a
warrant affidavit valid on its face . . . contains deliberate or reckless
omissions of facts that tend to mislead.” United States v. Stanert, 762 F.2d
775, 781 (9th Cir.), amended on other grounds, 769 F.2d 1410 (9th Cir. 1985).
An affiant is not permitted to tell “less than the total story” to “manipulate
the inferences a magistrate will draw,” or “intentionally or recklessly omit[]
facts required to prevent technically true statements in the affidavit from
being misleading.” Id. “To allow a magistrate to be misled in such a
2 We acknowledge and agree that “the fact that an informant has given false
information to a police affiant will not serve to vitiate the existence of
probable cause,” absent a showing that the affiant knew or should have
known of the misrepresentation or omission. Pike, 113 Ariz. at 513, 557 P.2d
at 1070. We focus this Opinion, instead, upon specific statements and
omissions the record reflects the affiant knew or had reason to know were
false and/or material by virtue of contradictory evidence contained within
law enforcement’s own reports and public records.
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Opinion of the Court
manner could denude the probable cause requirement of all real meaning.”
Id. (citing Franks, 438 U.S. at 168).
¶28 If the defendant then proves, at an evidentiary hearing,
perjury or reckless disregard for the truth by a preponderance of the
evidence, the false statement must be excised from the affidavit. Poland, 132
Ariz. at 279, 645 P.2d at 794. Unless the affidavit, purged of its falsities and
supplemented by its omissions, provides a sufficient basis for probable
cause, the search warrant must be voided and the evidence seized pursuant
to it must be suppressed. Id. (citing United States v. Young Buffalo, 591 F.2d
506, 509 (9th Cir. 1979)); Stanert, 762 F.2d at 782.
¶29 Here, the trial court denied Frimmel the opportunity to
explore the alleged falsehoods and omissions at an evidentiary hearing. We
therefore consider whether Frimmel made the requisite “substantial
preliminary showing,” prescribed by Franks. Poland, 132 Ariz. at 279, 645
P.2d at 794 (citing Franks, 438 U.S. at 155); see also United States v. Chesher,
678 F.2d 1353, 1362 (9th Cir. 1982) (“Clear proof is not required [at the
motion stage] — for it is at the evidentiary hearing itself that the defendant,
aided by live testimony and cross-examination, must prove actual
recklessness or deliberate falsity.”).
A. Deliberate Falsehood or Reckless Disregard for the Truth
¶30 Because a search warrant affidavit is presumed to be valid, a
challenge to its sufficiency must be more than conclusory or speculative.
Franks, 438 U.S. at 171. Therefore, a defendant must make specific
allegations of deliberate falsehoods or reckless disregard for the truth, with
reference to the relevant portion of the warrant, and support the allegations
with a detailed offer of proof and statement of supporting reasons. Id.¶31 A search warrant affidavit must be read in a common sense
and realistic manner. State ex rel. Collins v. Superior Court, 129 Ariz. 156, 158,
629 P.2d 992, 994 (1981). Although an innocent or negligent mistake does
not constitute a Franks violation, the use of out-of-date information as an
expression of current status tends to support a claim of recklessness.
Chesher, 678 F.2d at 1360-61. The Fourth Amendment requires that “facts
constituting probable cause . . . be ‘so closely related to the time of the issue
of the warrant as to justify a finding of probable cause at that time.’” State
v. Miguel, 209 Ariz. 338, 341, ¶ 13, 101 P.3d 214, 217 (App. 2004) (quoting
Sgro v. United States, 287 U.S. 206, 210 (1932)). Therefore, “a[n] affidavit
used to support a search warrant ‘must speak as of the time of the issue of
that warrant.’” State v. Kasold, 110 Ariz. 563, 566, 521 P.2d 995, 998 (1974)
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(quoting Srgo, 287 U.S. at 211); see also State v. Turney, 134 Ariz. 238, 241, 655
P.2d 358, 361 (App. 1982) (presuming information was stale, and incapable
of supporting probable cause, where there was no indication as to the dates
of the alleged illegal activity).
¶32 Based upon the record before us, the affidavits were based
heavily upon information from informants who had, at best, limited
personal knowledge of Frimmel’s hiring and record-keeping practices, and
the timeliness of information they provided expired long before the warrant
was sought. The affiant did not state when he obtained the information
from the informants, but alleged it was current as of February 2013 — still
five months before the issuance of the warrants. The reliance upon stale
information is troubling in that more recent information within law
enforcement’s reports, and thereby within its possession and withheld from
the magistrate, specifically contradicted the statements in the affidavits and
affirmatively indicated Frimmel acted lawfully by requiring
documentation of legal status prior to hiring.
¶33 Failure to disclose the history, background, and motivation of
an informant may be a material omission from a search warrant affidavit.
See United States v. Elliott, 322 F.3d 710, 716 (9th Cir. 2003) (noting “an
informant’s criminal past involving dishonesty is fatal to the reliability of
the informant’s information, and his/her testimony cannot support
probable cause” absent additional evidence that bolsters the reliability of
the tip or information (quoting Reeves, 210 F.3d at 1045)); United States v.
Hall, 113 F.3d 157, 159 (9th Cir. 1997) (finding concession by the government
that a law enforcement officer failed to disclose certain convictions of an
informant while testifying to others satisfied requirement that there had
been a reckless disregard of the truth). But see United States v. Ruiz, 758 F.3d
1144, 1149, 1152 (9th Cir. 2014) (excusing “serious omissions” regarding an
eyewitness’s dishonest behavior and motive to lie where other
corroborating information was available to support her statements).
¶34 Here, the affidavits provided virtually no background
information on any of the informants, thereby depriving the magistrate of
the opportunity to meaningfully and neutrally evaluate the veracity of the
informants, much less the information they provided to MCSO. Had the
magistrate been aware the two initial informants were husband and wife
who (1) were discharged many months earlier for (proven) criminal activity
against Frimmel; (2) had exhibited poor work performance; and (3)
possessed minimal current personal knowledge regarding Uncle Sam’s
hiring practices, we cannot conclude the magistrate would have found the
informants or their information credible or sufficiently reliable to support
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Opinion of the Court
the existence of probable cause. Similarly, without any information
regarding the relatively minor consequences and significant immigration
benefits bestowed upon the four convicted ex-employees, the magistrate
could not make an independent and informed decision regarding their
credibility.
¶35 While every fact in the affidavit need not be true, Franks, 438
U.S. at 165, law enforcement officers are not permitted to exaggerate known
facts to falsely substantiate the magnitude of a crime or create probable
cause where none exists. See Stanert, 762 F.2d at 781; see also State v. Payne,
25 Ariz. App. 454, 457-58, 544 P.2d 671, 674-75 (1976) (excluding evidence
obtained as a result of a search warrant that falsely implied an informant
personally observed heroin in the defendant’s possession). To accept the
“possibility that [some fact] might be true . . . would be to ignore the
requirements of probable cause and truthfulness.” State v. Claxton, 122
Ariz. 246, 248, 594 P.2d 112, 114 (App. 1979) (finding officer’s statement in
affidavit that defendant was in possession of merchandise was “knowingly
and intentionally false” or “made with reckless disregard for the truth”
where officer testified that, at best, there was “only a possibility that the
jewelry was back in [defendant’s] possession”). Based upon the
documentation and information provided, the affiants, at a minimum,
exaggerated the strength of the allegations levied against Frimmel by
overstating the evidence against him and overstating the alleged existence
of business activity at his home when MCSO apparently had little, if any,
actual knowledge of the details of Frimmel’s hiring practices. It is not
within the power of an affiant, within the strictures of the Fourth
Amendment, to alter an honest “maybe” to a false “yes” in order to obtain
a warrant.
¶36 Finally, the unexplained failure to discover and/or disclose
written information prepared by and readily available to law enforcement
agents through the course of their investigation tends to corroborate a
defendant’s charge that the affiant acted recklessly. See Chesher, 678 F.2d at
1360-61 (finding unpersuasive officer’s claim that he was unaware of
written report of law enforcement agency prepared four years prior that
contradicted information contained in the search warrant affidavit). Our
supreme court has noted that when “the affiant both knew the correct facts
while swearing to false facts and omitted other facts that he knew, the
conclusion seems inescapable” that averments were made knowingly,
intentionally, or recklessly. Buccini, 167 Ariz. at 554 n.5, 810 P.2d at 182 n.5.
Here, the affiants misstated or omitted important, material facts either
contained within MCSO’s own investigative reports or other obvious,
available public records, and we have been provided no explanation for the
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failure to review those reports to ensure the integrity of the affidavits
supporting the requested warrants.
¶37 Based upon the record before us, the seemingly pervasive
misstatements of basic facts and numerous misrepresentations and
omissions of material facts, we conclude Frimmel made a substantial
preliminary showing that false statements and material omissions were
made with, at a minimum, reckless disregard for the truth.
B. Sufficiency of Probable Cause
¶38 Having concluded Frimmel made a substantial preliminary
showing that the affidavits contained recklessly false statements or
omissions, we next address whether “the remaining content of the
affidavit[s] is sufficient to support a finding of probable cause.” State v.
Carter, 145 Ariz. 101, 109, 700 P.2d 488, 496 (1985). In order to do so, we first
redraft the affidavits to remove the falsehoods and add in material omitted
facts. Id. In determining whether the redrafted affidavits sufficiently
support a finding of probable cause, we apply the totality of the
circumstances standard articulated by the U.S. Supreme Court in Illinois v.
Gates, 462 U.S. 213 (1983). Buccini, 167 Ariz. at 556, 810 P.2d at 184. “An
officer has probable cause to conduct a search if a reasonably prudent
person, based upon the facts known by the officer, would be justified in
concluding that the items sought are connected with the criminal activity
and that they would be found at the place to be searched.” Id.¶39 If the affiants had simply provided the magistrate with only
accurate and reliable information, as supported by MCSO’s own report and
public record, they would have reported that a number of individuals hired
by Uncle Sam’s in the previous year were using Social Security numbers
connected to more than one name, more than one address, only an out-of-
state address, or unconnected to any name or address. What is lacking in
the record is credible evidence to support the alleged complicity of
Frimmel; that Frimmel participated in illegal activity, let alone conspired
with others to hire undocumented persons or assist them in forging
credentials, appears to be left purely to conjecture based upon the records
before this Court.
¶40 Probable cause cannot be established by mere suspicion that
a search will reveal items connected to criminal activity. Buccini, 167 Ariz.
at 557, 810 P.2d at 185 (citing United States v. Kandlis, 432 F.2d 132, 135-36
(9th Cir. 1970), and State v. Hutton, 110 Ariz. 339, 341, 519 P.2d 38, 40 (1974)).
To the contrary:
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The point of the Fourth Amendment, which is often not
grasped by zealous officers, is not that it denies law
enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists
in requiring that those inferences be drawn by a neutral and
detached magistrate instead of being judged by the officer
engaged in the often competitive enterprise of ferreting out
crime.
Id. (quoting Johnson v. United States, 333 U.S. 10, 13-14 (1948)).
¶41 Based upon the record before us, correction of the alleged
false statements and addition of the omitted facts would defeat a finding of
probable cause. If Frimmel proves that (1) the statements discussed above
were false, (2) the omitted facts were true, and (3) the misrepresentations
and omissions were made intentionally or with reckless disregard to their
truth, we would conclude that the searches violated the Fourth
Amendment. Frimmel has therefore satisfied both prongs of Franks, and is
entitled to an evidentiary hearing to examine the sufficiency of probable
cause supporting the five warrants at issue.
CONCLUSION
¶42 While evidentiary hearings into an affiant’s veracity shall not
be obtainable upon a bare allegation of bad faith, Franks, 438 U.S. at 171, we
do not consider the “rights secured by the constitution [] mere
‘technicalities’ which should be swept aside in the interests of expediency
even to accomplish the most desired social goal.” Bolt, 142 Ariz. at 267, 689
P.2d at 526. Here, Frimmel has made a substantial preliminary showing of
numerous false statements, misrepresentations and/or material omissions
contained within the affidavits submitted in support of the warrants that
could have affected the magistrate’s evaluation of probable cause. We hold
that “[w]here there is significant doubt about the propriety of police
practice and its impact on an important credibility determination
supporting a probable cause conclusion, we should exercise caution on the
side of the Fourth Amendment and improved police practices . . . .” Ruiz,
758 F.3d at 1153 (Gould, J., dissenting). On the record before us, Frimmel is
entitled to a Franks hearing to challenge the existence of probable cause to
support the warrants.
¶43 We therefore accept jurisdiction, reverse the trial court’s
denial of Frimmel’s request for a Franks hearing, and remand to the trial
court for action consistent with this Opinion. If Frimmel is able to prove
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some or all of the averments or omissions were made knowingly,
intentionally, or recklessly, the trial court must determine whether the
corrected affidavits are sufficient to support a finding of probable cause for
the warrants. If so, the searches were proper. If not, the evidence obtained
from the improper search or searches must be suppressed.
:gsh
14