Free Response in Opposition to Motion - District Court of Arizona - Arizona

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John T. Masterson, Bar #007447 Jennifer L. Holsman, Bar #022787 JONES, SKELTON & HOCHULI, P.L.C. 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Telephone: (602) 263-1700 Fax: (602) 200-7846 [email protected] [email protected] Attorney for Defendants Brad Weekley, Penny Dahlberg, Guy Gorman and Dave Boatwright UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA James W. Field, Plaintiff, v. County of La Paz, et al., Defendants. LA PAZ COUNTY DEFENDANTS' RESPONSE IN OPPOSITION TO PLAINTIFF'S RULE 12 MOTION TO SUPRESS (sic) CV 03-2214-PHX SRB

Defendants Weekley, Boatwright, Dahlberg and Gorman, through counsel, submit this Response in Opposition to Plaintiff's Motion to Supress (sic). Plaintiff's Motion must be denied because: (1) Plaintiff's claim is barred by Heck v. Humphrey; (2) this Court has previously determined that the search warrant executed on Plaintiff's property on October 30, 2002 complied with the Fourth Amendment,; (3) no property was "seized" during the search; and (4) all procedural requirements for the return of the search warrant were followed.

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This Response is supported by the following Memorandum of Points and Authorities, pleadings on file with the Court and any oral argument the Court may hold in this matter. MEMORANDUM OF POINTS AND AUTHORITIES I. FACTUAL BACKGROUND On October 28, 2002, an administrative search warrant, based on probable cause, was issued by Judge Deschaine. The request for search warrant contained in Affidavit by Officer Bagby which contained the probable cause basis for the search. The search of Plaintiff's property took place on October 30, 2002. During the search, no property was seized. Photographs were taken of the property and a search log was prepared by La Paz Count officials in reference to the photographs. The search logs, photographs and "Affidavit of Return of Search Warrant" was returned by Officer Clay Romo on November 1, 2002. II. LEGAL ARGUMENT
A.

Plaintiff's § 1983 Excessive Force Claims are Barred by Heck v. Humphrey.

On June 24, 1994, the United States Supreme Court held that a §1983 plaintiff seeking to challenge the lawfulness of his conviction or duration of confinement must first establish that a conviction or sentence has been reversed, expunged, invalidated, or impugned. Heck v. Humphrey, 114 S. Ct. at 2372-73 (1994). The Court specifically stated: We hold that, in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct

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appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such a determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. Thus, when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. But if the district court determines that the plaintiff's actions, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit.

Heck, 2373-73 (emphasis added) (footnotes omitted). In this case, an Administrative Search Warrant of Plaintiff's property was conducted. As a result of the search, dangerous conditions were found on Plaintiff's property. It was these dangerous conditions that each posed an immediate threat to the safety of the public, which caused La Paz County to recommend termination of electrical service to APS. Thus, the legal reasoning in Heck is similar to this case. Here, if the Court were to find that the search warrant was invalid (despite the Court already entering an Order that the search complied with the Fourth Amendment), under Heck the Court's judgment would clearly imply the invalidity of the Justice Court's determination of probable cause for this action, and the Court's implicit approval of the procedures for return of the warrant after the search. Accordingly, Heck bars Plaintiff from asserting that the search warrant was invalid in this case.

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B.

Defendants Followed the Procedural Requirements of A.R.S. § 13-3921.

The statutory authority for the administrative search warrant issued in this case, falls under A.R.S. 13-3912(A). This statute provides that a search warrant may be issued,

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"when the property to be searched and inspected by an appropriate official in the interest of the public health, safety or welfare as part of an inspection program authorized by law." Following the execution of a search warrant, the "officer shall return the warrant to the magistrate and at the same time deliver to him a written inventory of the property taken. The inventory shall be made publicly, or in the presence of the person from whose possession it was taken, and of the applicant for the search warrant, if they are present. The inventory shall be verified by the affidavit of the officer which shall be taken by the magistrate at the time it is delivered to the magistrate. The affidavit shall recite that the inventory contains a true and detailed account of all property taken." (emphasis added) In addition, the execution of a search warrant must comply with the Fourth Amendment.1 Plaintiff alleges that during the deposition of Deputy Heere he "learned that the Search Warrant and Return were not conducted according to established procedures." See page 2 of Motion. Plaintiff then cites to "procedural requirements" in A.R.S. §13-3921(A) that were allegedly "not followed" by the officers executing the search warrant in this case.2

The Court previously determined that the execution of the search warrant on Plaintiff's property complied with the Fourth Amendment. See page 18 of the Court's April 27, 2006 Order. 2 Plaintiff's argument that this is "newly discovered evidence" fails, as Plaintiff has had a copy of the search warrant since its execution in 2002.
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Despite Plaintiff's assertions, A.R.S. §13-3921(A) does not require a "specific" officer to return the search warrant upon its execution. The statute clearly states that any officer can complete this procedural requirement. Further, the statute states that "the inventory shall be verified by the affidavit of the officer which shall be taken by the magistrate at the time it is delivered to the magistrate." In this case, no property was seized during the search warrant. The only evidence obtained during the search were photographs taken and maintained by the La Paz County Department of Community Development. Further, the procedural requirement of returning the search log (which again, only reference photographs taken during the search) was fulfilled after the documents were delivered to Judge Deschaine by Officer Clay Romo.3 Because the procedural requirements for returning the search warrant and search logs were fulfilled pursuant to A.R.S. §13-3921, Plaintiff's Rule 12 Motion to Supress must be denied. III. CONCLUSION Based on the foregoing, Defendants respectfully request that Plaintiff's Motion to Supress (sic) be denied.

A failure to make a complete return is only an irregularity which may be corrected on motion. United States v. Kraus, 270 F.578 (D.C.); Rose v. United States (274 F. 245 (C.C.A.), certiorari denied, 257 U.S. 655, 42 S.Ct. 97, 66 L.Ed. 419; Reisgo v. United States, 285 F. 740 (C.C.A.); United States v Kaplan, 286 F. 963 (D.C.); United States v. Callahan, 17 F.2d 937, 942 (D.C.). See also, Nordelli, 24 F.2d 665 (9th Cir. 1928); Bertaneu, 121 Ariz. 454, 591 P.2d 546 (1979).
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DATED this 13th day of June, 2006. JONES, SKELTON & HOCHULI, P.L.C.

BY s/ Jennifer L. Holsman John T. Masterson Jennifer L. Holsman 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Attorneys for Defendants Brad Weekley, Penny Dahlberg, Guy Gorman and Dave Boatwright COPY of the foregoing hand-delivered this date to: James. W. Field PO Box 248 Salome, Arizona 85348 Plaintiff Pro Per David F. Gaona, Esq. Nicole Cantelme, Esq. Gaona Law Firm 3101 North Central Avenue Suite 720 Phoenix, AZ 85012 Attorney for Co-Defendants s/ Jennifer L. Holsman

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