By Howard Fischer
Capitol Media services
PHOENIX – A Tucson man is given another chance to seek financial compensation from the city for an illegal search of his home in the east more than a decade ago.
But he won’t be able to regain the value of the dozen of cats he had that were taken by Pima County Animal Control after the raid, most of which later died.
In a unanimous decision on Monday, a three-judge panel of the 9th District Court of Appeals overturned a trial judge’s decision that police officers were entitled to qualified immunity to obtain a search warrant for Richard Brubaker’s home.
The appellate judges said there was enough evidence for the jury, if allowed to hear the case, to conclude that Tucson police officers intended to mislead the judge who issued the search warrant. They also said there was evidence of recklessness, including an officer who misrepresented the application for the affidavit and withheld certain information from the judge who issued the warrant.
In the same ruling, the appeals court said Brubaker was entitled to seek damages against the Tucson police for trespassing.
But what about the cats?
Brubaker’s attorney, Kenneth Graham, said they were all long gone, most of them died in county custody because his client could not afford the fees to challenge their seizure. And the appeals court said even if the first search warrant was illegally obtained, the police would have the right to call animal control once inside.
Court records show Brubakers’ problems arose when Michael Pelton, a Tucson police officer who worked near S. Wilmot and E. Golf Links streets, was informed via a notice line that there were break-ins and drug deals within two minutes of the area To block.
He later came across a man who identified himself as Donald Deal. While Deal first said he was looking for work in the neighborhood, Pelton eventually looked for Deal and found a crack pipe.
Deal later told police he was there to buy drugs. And although he couldn’t initially identify a specific house, he later pointed to the one Brubaker lived in.
That led to a search warrant. The police, unable to find anyone at home, broke into the house and threw a stun grenade.
They found no drugs. But they found dozens of cats in cages in allegedly filthy conditions, which led them to call animal controls.
Graham said all criminal charges related to the animals were subsequently dismissed.
But that left Brubaker without his cats – who Graham said was planning to bring his client to his property in Tombstone – and with the illegal invasion of his home. And Graham said that Brubaker, who is Amish, has a strong sense of home as a haven.
US District Judge David Bury granted a motion by the city to dismiss the lawsuit over an illegal search. Bury concluded that there was no evidence that neither Pelton nor Sgt. Jack Woolridge, who also handled the case, deliberately or frivolously misled the judge who authorized the search.
“We disagree,” the appellate body said in the unsigned statement, saying there was evidence that a jury believed otherwise. And the appeals court said there was a lot to choose from.
It begins with Pelton making false statements in his telephone request for the arrest warrant, implying that police have received reports of drug sales at Brubaker’s address. Then there was reliance on the sole source, including their failure to detect and disclose Deals extensive criminal history of police lying.
And they said the police had not received “conclusive confirmation”.
The appeals court also re-established the trespassing suit, which Bury had dismissed.
“Since the jury could reasonably have concluded that the defendants obtained the search warrant through judicial deception, they could similarly have concluded that the defendants’ intrusion into Brubaker’s property was an unauthorized trespass,” the judges wrote.
On returning the case for trial, the appeals court said Brubaker is entitled to seek damages for everything from physical damage to the premises to his emotional distress and the loss of the home during the search.
However, he cannot claim damages for the confiscation of his animals and the subsequent criminal prosecution for animal abuse, even if the search warrant was not properly obtained.
The key, the appellate judges said, is the difference between criminal and civil cases.
“Evidence illegally obtained can be a likely cause for a search or seizure,” they wrote.
“Although such evidence can be suppressed in criminal proceedings, this is not the case in (citizen) lawsuits,” the judges continued. And that allows the defendants, as in this case, to justify their decision to call Animal Control even though they shouldn’t have been in the house in the first place.
It is now up to Bury to set a date for a new trial.
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