Free Supplement - District Court of Arizona - Arizona

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Daniel B. Treon ­ 014911 Kelly Jo - 021525 TREON & SHOOK, P.L.L.C. 2700 North Central Avenue, Suite 1000 Phoenix, Arizona 85004 Telephone: (602) 265-7100 Facsimile: (602) 265-7400 Attorney for Plaintiffs UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA TERESA AUGUST, a single woman, MARK AUGUST and JANE DOE AUGUST, husband and wife, for themselves and as parents and guardians for their minor child, MARCUS DAKOTAH AUGUST Plaintiffs, vs. CITY OF PHOENIX, a body politic of the State of Arizona; OFFICER LYLE MONSON and JANE DOE MONSON, husband and wife; OFFICER NICHOLAS LYNDE and JANE DOE LYNDE, husband and wife; OFFICER TOBY DUNN and JANE DOE DUNN, husband and wife; OFFICER T. HEDGECOKE and JANE DOE HEDGECOKE, husband and wife; and R. GRIFFIN and JANE DOE GRIFFIN, husband and wife Defendants. ___________________________________ _ ) Case No. CV03-1892 PHX ROS ) ) ) PLAINTIFF'S SUPPLEMENT TO ) JOINT PRETRIAL ORDER ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Plaintiff Teresa August hereby submits the following supplement to the Joint
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Pretrial Order:
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E.
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CONTENTIONS OF THE PARTIES

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In addition to claiming that the officers used excessive force, Teresa August claims that the officers' warrantless entry into her home was without justification and therefore also violated her Fourth Amendment rights. Plaintiff further claims that no exigent circumstances existed, or if there were exigent circumstances, they were created by the improper acts of the officers themselves and therefore did not provide justification for the warrantless entry. G. 4A. PLAINTIFF'S CONTENTIONS OF DISPUTED FACT Along with opening the door to let Officer Lynde out of the house, Teresa

August withdrew her consent to his presence in her home. She never consented to the entry of the other officers at the scene. I. 16. ISSUES OF LAW IN CONTROVERSY Whether exigent circumstances existed to justify warrantless entry into

Mrs. August's home. "Absent exigent circumstances, that threshold [to the home] may not
reasonably be crossed without a warrant," Payton v. New York, 445 U.S. 573, 589-90, 100 S.Ct. 1371, 1381-82, 63 L.Ed.2d 639 (1980), particularly if the arrest is for a minor offense, Welsh v. Wisconsin, 466 U.S. 740, 749-50, 104 S.Ct. 2091, 2097, 80 L.Ed.2d 732 (1984). Defendants, in their motion in limine regarding probable cause and entry, misstated the findings of the Court regarding probable cause, and misstated the law as "probable cause to

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enter" rather than probable cause to arrest. A warrant is based on probable cause, but a
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warrantless entry into someone's home must be based on an exigent circumstances. Payton, supra.

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Whether exigent circumstances were created by actions of officers, and

therefore did not justify the warrantless entry into Mrs. August's home. Defendants
cannot hide behind a claim of exigent circumstances when they were the ones responsible

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for the exigent circumstances, State v. Ault 150 Ariz. 459, 463, 724 P.2d, 545 549 (1986), United States v. Duchi, 906 F.2d 1278, 1285 (8th Cir. 1990); United States v. Curzi, 867 F.2d 36, 43 (1st Cir. 1989); United States v. Munoz-Guerra, 788 F.2d 295, 296-97 (5th Cir. 1986); United States v. Arias, 992 F.Supp.2d 832, 39 (S.D. Vir. 1997); and United States v. Eberle, 993 F.Supp. 794, 800.

DATED this 1st day of December, 2006. TREON & SHOOK, P.L.L.C. By: s/ Daniel B. Treon Daniel B. Treon Kelly Jo Attorney for Plaintiffs

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CERTIFICATE OF SERVICE I hereby certify that on December 1, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic to the following CM/ECF registrants: Daniel B. Treon: Kathleen Wieneke: [email protected]; [email protected] [email protected]; [email protected]; [email protected] [email protected]; [email protected] [email protected]; [email protected]

Jennifer L. Holsman: Randall H. Warner:

By:

s/ Barbara Bopp

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