Free Response to Motion - 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

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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 RESPONSE TO DEFENDANTS' MOTION IN LIMINE RE: PROBABLE CAUSE AND ENTRY

Plaintiff Teresa August responds that Defendants' Motion in Limine re: probable cause
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and entry should be denied because the reasonableness of the officers' entry into Mrs.
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August's home has never been addressed by the Court and is, therefore, a factual issue in dispute. Furthermore, the question of probable cause can still be properly considered by the jury. Defendants improperly conflate the issues of probable cause and warrantless entry,

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improperly implying that the Court has already determined that the officers' entry into Mrs.
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August's home was reasonable. I. FACTUAL AND PROCEDURAL BACKGROUND Defendant Officer Nicholas Lynde spent a significant amount of time talking to Mrs. August through her locked screen door as part of the investigation into the dispute between Mrs. August and her grandson, Sam Hickey. Eventually, Mrs. August agreed to let Officer Lynde into her home to continue the conversation. Officer Lynde radioed the other officers at the home as he entered through the door unlocked by Mrs. August. After Officer Lynde passed through the doorway, Mrs. August, as was her habit, turned the thumb lock and re-

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locked the screen door.
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When Officer Lynde objected to the locking of the door, Mrs.

August, who was generally unhappy with the tenor and direction of the investigation, promptly unlocked the door and told Officer Lynde to leave her home. Instead of peacefully departing Mrs. August's home, Officer Lynde radioed for help and stepped aside while three other officers rushed the door. Officer Lynde had radioed the other officers that he had entered the home alone with the homeowner and was concerned about the locked door. He had, in fact, committed a rookie mistake, created a situation where contact between officers was broken, potentially impacting their ability to support and protect each other. Defendants' police practices expert Commander Hynes admitted, "We

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cannot and will not allow somebody to lock us inside their house away from ­ it breaks
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contact with the other officers that are involved," and added, "I wouldn't have done it that way, but I would not allow somebody to lock the door behind me, but that's me. I'm much more experienced than what this young officer is." (EXHIBIT 1, deposition of Jeffeory G. Hynes, p. 25:18-24, 30:18-20). Officers Monson and Dunn, present at the scene, stated more clearly that Lynde's conduct was an error that created their sense of need to rush Mrs.

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August's front door.
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After rushing the door, the officers aggressively and unnecessarily

escalated the confrontation, culminating in a violent arrest that left a 68-year-old grandmother with a dislocated elbow. On September 20, 2006, the Court issued its minute entry ruling on Defendants' Motion for Summary Judgment. Included in that ruling, the Court stated, "Based on the undisputed evidence available to the officers when they arrived at Ms. August's home, the `totality of the circumstances' establishes sufficient probable cause for the arrest of Ms. August [for assaulting her grandson]." The Court's minute entry is silent on the issue of probable cause for arrest on the charge of resisting arrest, and it is also silent on the issue of

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the warrantless entry into Mrs. August's home.
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II.

LEGAL ANALYSIS A. The Officers Committed a Warrantless Entry.

A person has the right to withdraw consent under the Fourth Amendment. United States v. McWeeney, 454 F.3d 1030, 1033-34, 1036 (9th Cir. 2006) (coercing suspects into believing that they had no right to withdraw their consent to search violated Fourth Amendment rights, vacating conviction and remanding to district court for factual determination re coercion). Mrs. August, when she told Officer Lynde to leave, withdrew her consent to the officer's entry in her home. Officer Lynde's refusal to leave, and the entry by

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the other officers, constitute warrantless entry into her home and must be justified by exigent
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circumstances.

"Absent exigent circumstances, that threshold 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). B. The Warrantless Entry Violated Mrs. August's Fourth Amendment Right to be Free of Unreasonable Seizure.

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A warrantless entry based on a claim of exigent circumstances is evaluated
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objectively, "whether the facts are such that an objectively reasonable officer confronted with the same circumstances could reasonably believe that exigent circumstances existed." Shamaeizadeh v. Cunigan, 338 F.3d 535, 548 (6th Cir. 2003) (no exigent circumstances for second and third searches, partially reversing summary judgment for officers on plaintiff's § 1983 claim) (quoting Ewolski v. City of Brunswick, 287 F.3d 492, 501 (6th Cir. 2002)). See also United States v. Arias, 992 F.Supp. 832, 837 (D.W.Va. 1997) (granting defendant's motion to suppress evidence). The question is not whether Defendants had probable cause to enter Mrs. August's home, and Defendants' framing of the issue mischaracterizes the law

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and the determination of this Court.
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Neither this Court nor the criminal court addressed the issue of the warrantless entry. The Court's minute entry of September 20, 2006 makes absolutely no reference to exigent circumstances or warrantless entry. On June 2, 2003, Judge David O. Cunanan specifically declined to address the issue of the warrantless entry: Mr. Black: ...there was an illegal arrest and illegal well, it was an arrest. I need to state this although the legal issue of probable cause is inappropriate. But there was an illegal, warrantless arrest for my client in the foyer of her home.

The Court: Counsel, with regard to the illegal, warrantless arrest, that I agree that is not within the scope of this preliminary hearing. I will deny that [motion to dismiss], counsel. EXHIBIT 2, June 2, 2003 preliminary hearing, p. 33:15-22. Therefore, the question whether Defendants' entry was legal is a factual question before the jury, which is a significant, fundamental issue: The Fourth Amendment protects the individual's privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual's home ­ a zone that finds its roots in clear and specific constitutional terms: "The right of the people to be secure in their... houses ... shall not be violated." Case 2:03-cv-01892-ROS

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That language unequivocally establishes the proposition that "[a] the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion." Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 683, 5 L.Ed.2d 734 [(1961)]. In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold 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 (emphasis added).

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"[E]xceptions to the warrant requirement are `few in number and carefully delineated,' United States v. United States District Court, 407 U.S. [297, 318, 92 S.Ct. 2125, 2137 (1972)], and the police bear a heavy burden when attempting to demonstrate an urgent need that might justify warrantless searches or arrests." Welsh v. Wisconsin, 466 U.S. 740, 749-50, 104 S.Ct. 2091, 2097, 80 L.Ed.2d 732 (1984) (warrantless arrest of suspected drunk driver from home violated Fourth Amendment). Welsh further explains: When the government's interest is only to arrest for a minor offense,FN12 that presumption of unreasonableness is difficult to rebut, and the government usually should be allowed to make such arrests only with a warrant issued upon probable cause by a neutral and detached magistrate. FN12. Even the dissenters in Payton [v. New York, supra], although believing that warrantless home arrests are not prohibited by the Fourth Amendment, recognized the importance of the felony limitation on such arrests. See id., 445 U.S. at 616-17, 100 S.Ct. at 1395-96 (White, J., joined by Burger, C.G., and Rehnquist, J., dissenting) ("The felony requirement guards against abusive or arbitrary enforcement and ensures that invasions of the home occur only in case of the most serious crimes."). Welsh, 466 U.S. at 750, 104 S.Ct. at 2098, 80 L.Ed.2d 732). Based on Payton and Welsh, Defendants have a "heavy burden" to overcome Mrs. August's right to privacy, which is even "more explicit" under the Arizona Constitution than the U.S. Constitution. See State v. Ault, 150 Ariz. 459, 463, 724 P.2d 545, 549 (1986).

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Defendants cannot hide behind a claim of exigent circumstances when they were the
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ones responsible for the exigent circumstances. Ault at 463, 724 P.2d at 549 ("The exigent Case 2:03-cv-01892-ROS

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circumstances alleged on behalf of the state were created by the arresting deputies,"
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evidence seized during illegal entry inadmissible, conviction reversed).

See also United

States v. Duchi, 906 F.2d 1278, 1285 (8th Cir. 1990) (exigent circumstances created by investigative strategies of police when police substituted book for cocaine in undercover operation); United States v. Curzi, 867 F.2d 36, 43 (1st Cir. 1989) (no exigent circumstances justified officers' decision to reveal their presence during covert surveillance); United States v. Munoz-Guerra, 788 F.2d 295, 296-97 (5th Cir. 1986) (no exigent circumstances to justify officers' initial decision to approach patio door instead of maintaining covert surveillance); United States v. Arias, 992 F.Supp.2d 832, 39 (S.D. Vir. 1997) (any "officer easily could have

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foreseen that allowing the defendants to see uniformed officers in the hotel room doorway
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would create a situation wherein the defendants would attempt to dispose of the cocaine," was an exigent circumstance created by the officers, and therefore, the evidence was illegal obtained and inadmissible); United States v. Eberle, 993 F.Supp. 794, 800 (D. Mont. 1998) ("Police officers may not take actions to create an exigency and use that to justify a warrantless entry to the home."). Any alleged exigency that existed was created by Officer Lynde's error in entering Mrs. August's home alone and without backup. Furthermore, when Officer Lynde objected to the locked door, Mrs. August immediately unlocked the door. At that point, Officer Lynde

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should have simply exited the home; instead, three more officers rushed in, without a
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warrant, and in the officer-created confrontation, one of the officers dislocated Mrs. August's right elbow. C. The Court Should Stay a Decision on Probable Cause Until Closing Arguments.

The facts constituting the existence or non-existence of probable cause are part of the
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sequence of events leading up to the attack on Mrs. August and are therefore admissible. Case 2:03-cv-01892-ROS

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The only issue regarding probable cause is whether Plaintiff should be allowed to argue that
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Defendants lacked probable cause to arrest her. Pursuant to Rule 54(b), Federal Rules of Civil Procedure, the Court's determination regarding probable cause is interlocutory and not final until final judgment, and the Ninth Circuit recognizes the discretionary application of the law of the case: [The law of the case] is properly a matter of discretion ­ discretion so vague that the law of the case has been described by the Supreme Court as "an amorphous concept." Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 1391, 75 L.Ed.2d 318 (1983). It is essentially "a rule of practice and not a limit on authority." 1 B.J. Moore, J. Lucas, & T. Currier, Moore's Federal Practice § 0.404[1] at 120 (2d ed. 1982). Specifically, to correct "a manifest injustice" the law of the case should be reconsidered. Arizona v. California, 460 U.S. at 644, 103 S.Ct. at 1404 (Brennan, J., dissenting). Law of the case should not be applied woodenly in a way inconsistent with substantial justice. Moore v. Js. H. Matthews & Co., 682 F.2d 830, 833-34 (9th Cir. 1982). United States v. Miller, 822 F.2d 828, 832-33 (9th Cir. 1987) (approving the trial court's refusal to apply law of case in allowing party to change legal position). Since the question of probable cause will not change the facts presented to the jury, if the evidence produced by Plaintiff raises a factual issue regarding the existence of probable cause for arresting Mrs. August for assaulting her grandson, Mrs. August should be permitted to argue lack of probable cause in closing arguments. III. CONCLUSION Defendants' Motion in Limine regarding probable cause mischaracterizes the previous

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decision of this Court and misstates the law regarding warrantless entry and exigent circumstances. denied. DATED this 29th day of November, 2006. For the above-stated reasons, Defendants' motion in limine should be

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TREON & SHOOK, P.L.L.C.
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By:

s/ Daniel B. Treon Daniel B. Treon Kelly Jo Attorney for Plaintiffs

CERTIFICATE OF SERVICE I hereby certify that on November 29, 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]

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Jennifer L. Holsman: Randall H. Warner:

By:

s/ Aly Shomar-Esparza

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