Daschke v. Hartenstein
| Citation | 420 F.Supp.3d 919 |
| Decision Date | 27 September 2019 |
| Docket Number | No. CV-17-00456-TUC-JGZ,CV-17-00456-TUC-JGZ |
| Parties | Karl DASCHKE, et al., Plaintiffs, v. Theodore HARTENSTEIN, et al., Defendants. |
| Court | U.S. District Court — District of Arizona |
Michael Garth Moore, Law Offices of Mike Moore, Tucson, AZ, for Plaintiffs.
Daryl A Audilett, Audilett Law PC, Jason David Corley, Jennifer June Sanders, Office of the Attorney General-Tucson-Congress St., Tucson, AZ, for Defendants.
In 2016, the Pima County Sherriff's Department investigated a series of break-ins at unoccupied homes listed for sale, which came to be known as "mansion parties." At some point during the Department's investigation, detectives began focusing on a juvenile, ZD, and ultimately obtained a warrant to search ZD's home, his family's vehicles, and all electronics. Following that search, the Sherriff's Department contacted Arizona's Department of Child Services, and various members of that agency took actions that resulted in the removal of ZD and his younger brother ND from the Daschke home. ZD, ND, and the rest of the Daschke family then sued members of the Sherriff's Department and Department of Child Services. Before the Court are five motions for summary judgment filed by various parties seeking judgment in their favor. The Court heard arguments on these Motions on August 20, 2019.
Law enforcement started to receive reports of unauthorized house parties in the Tucson area during the summer of 2016. These events tended to take place in unoccupied homes, often entailed alcohol and drug use by minors, and sometimes resulted in significant damage to the homes. The parties were, at times, attended by hundreds of adolescents, and the date and location of each event was disseminated via various forms of social media. The Pima County Sheriff's Department assigned Detective Theodore Hartenstein to lead an investigation into the parties. (Doc. 155, ¶ 37.) Detective Jonathan Siress joined the investigation in October 2016 as a member of the Department's Community Problems Unit. (Doc. 155-9, pg. 5.)2
Following a mid-August break-in and party at one particular residence, 660 N. Mountain Side Way, which resulted in extensive damage to the home, law enforcement interviewed several adolescents who had attended the event. One attendee, LD, stated that a person named "Z" had attended the party at 660 N. Mountain Side Way, but LD did not recall Z causing any damage to the home. (Doc. 162-1, exh. 5, pg. 38.) Another female student, AC, identified ZD as a white male who possibly ran the private Twitter account, "Tucson Addies"3 or "Town Addies or something like that." Finally, a female student named TC informed law enforcement that she knew ZD. (E.g. , Doc. 157-7, pg. 3.) Law enforcement did not specifically ask TC if a person named ZD ever attended one of the house parties, but when TC was asked for the names of people who had caused damage to 660 N. Mountain Side Way, she replied that a student named "Z" had caused damage.4 (Doc. 157-6, pg. 10.) She added, however, that she did not know "Z's" last name, and that he went by "Brizo (ph)." (Doc. 155, ¶¶ 45-46, 53; Doc. 157-6, pg. 10.) Law enforcement downloaded the contents of TC's phone. (Doc. 155, ¶ 48.) In the downloaded contents, law enforcement recovered a photo of an African American male under the contact name "Breezo Slaughter." (Doc. 155, ¶ 56.)
Law enforcement also retrieved from the download one screenshotted photo from Snapchat of a naked male, whom TC identified as ZD. (Doc. 155, ¶¶ 57, 60.) TC told law enforcement that another friend had sent her the photo and further stated that she was friends with ZD. TC explicitly denied any form of a sexual relationship with ZD each time Officer Hartenstein asked about the nature of their relationship. (Id. ; Doc. 155, ¶¶ 59-60.) Law enforcement also retrieved a text communication from "Z"—no last name specified—sent to TC on August 11, 2016, before the 660 N. Mountain Side Way party. (Doc. 162, ¶ 10; Doc. 162-1, exh. 7, pg. 48.) The text offered to "provide for that party" and stated that the sender could "go on some bottle runs" and "buy some bud."5 (Id. ) TC's phone download reflected 12 people named "Z" in her contact list. (Doc. 155, ¶ 64.)
In addition to the photo and text, law enforcement obtained various random images of drugs, paraphernalia, alcohol, and mansion party-related social media activity. (Docs. 156-5, 156-6.) Law enforcement likewise obtained metadata from a snapchat conversation spanning from June 12, 2016, to August 19, 2016. (Doc. 156-7.) Most text entries in the conversation contained residential Tucson addresses, with no other information. (Id. ) One participant on the conversation thread with a username resembling ZD's full name sent numerous messages with addresses to the other participants, but a different participant in the conversation shared the address "660 N. Mountain Side Way" with the group.6 (Id. )
On November 30, 2016, Detective Hartenstein contacted ZD's father, Karl Daschke, to set up an appointment with the Department to interview ZD. Detective Hartenstein indicated that he had probable cause to charge ZD with a felony and would present the case for an arrest warrant if he did not hear back from Karl, but that he wanted to provide ZD with an opportunity to present his side first. Karl Daschke returned Detective Hartenstein's call to say that he did not consent to ZD attending any interview without an attorney or a parent present.
On December 13, based on the interviews with and the downloads obtained from TC, LD, and AC, Detectives Hartenstein and Siress filed an affidavit seeking a warrant to search ZD's person, his family's home, and all four vehicles kept at the home.7 (Doc. 155-6). The affidavit contained the following statements: fingerprints and other DNA swabs had been collected at "several of the incidents"; ZD was known as an associate of several juveniles already arrested, and specifically, TC "identified [ZD] as a person she had an intimate sexual relationship with during an interview"; TC's cellphone contained images of alcohol, illegal drugs, and drug paraphernalia, as well as text conversations about drug use and sexual activity in connection with the mansion parties; one of the Twitter accounts that law enforcement had been monitoring, "Tucsonparties," had advertised the addresses where the mansion parties were to take place, and encouraged alcohol consumption, drug usage, and sexual activity; TC and AC said that ZD operated "Tucsonparties," and further stated that they had seen ZD at the party where the most criminal activities occurred, and that he was an active participant in the events of that party. The affidavit concluded by stating that "[t]he use of social media accessed through computers, cellular telephones[,] and other electronic devices" was "key to the advertising and promotion of" the illegal activities at the mansion parties, and that it was likely there is more evidence of this activity contained within the cellular phone and other electronic devices to which [ZD] has access." (Id. )
That same day, based on the information supplied in the affidavit, an Arizona Superior Court judge signed a warrant authorizing the detectives to search: 1) ZD's person for prints and buccal swabs, 2) the family home where ZD resided, and 3) four cars kept at the residence—three registered to Karl and Gretchen Daschke, and one registered to Joshua Daschke. In the home and vehicles, the warrant authorized law enforcement to seize any narcotics or paraphernalia, any items that could identify suspects or co-conspirators as yet unidentified, and all cell phones or other electronic devices. The warrant further authorized law enforcement to complete a forensic download of all texts, photos, and other media contained on any of the cell phones or electronic devices, and to retain any evidence of burglary, criminal trespass, criminal damage, alcohol-related offenses, curfew violations, narcotics possession, criminal nuisance or disorderly conduct, and evidence of "permitting life, health, or morals of minor to be imperiled by neglect, abuse or immoral associations." (Doc. 155-5.)
Detectives Hartenstein and Siress were both part of the team that subsequently executed the warrant. (Doc. 162, ¶ 36.) During their search, the detectives retrieved a packet of cocaine in ZD's wallet and four partially filled liquor bottles in a van that ZD occasionally drove. (Doc. 162, ¶ 20.) ZD was later charged with burglary, criminal damage, criminal trespass, narcotics possession, and minor in possession. (Doc. 164-9, ¶ 39.) He pled guilty to criminal trespass and the remaining counts were dismissed. (Doc. 162, ¶ 31.)
On December 15, 2016, Detective Hartenstein reported the Daschke household to Arizona's Department of Child Services (DCS) hotline. (Doc. 128, ¶ 1; Doc. 128-4.) He detailed the criminal charges that ZD was facing and indicated that ZD had been caught with cocaine on his person, alcohol in a car he operated, and vaping supplies in his bedroom. Detective Hartenstein reiterated much of the information submitted in the warrant affidavit, supplemented by what he had uncovered when searching the home. (Doc. 113, ¶ 6.) After calling DCS's hotline, Detective Hartenstein had a phone conversation with a DCS investigative case manager, Gerardo Talamantes, during which Hartenstein told Talamantes that another mansion party location had been publicized following the search of the Daschke home. (Doc. 113, ¶¶ 2, 7.) DCS assigned Talamantes to investigate Hartenstein's report, with the approval of Talamantes's supervisor, Mildred Jimenez. (Doc. 113, ¶¶ 2, 8.)
The Parties dispute much of what happened during DCS's investigation. In short, however,...
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