Frimmel v. Sanders
| Decision Date | 25 November 2014 |
| Docket Number | No. 1 CA–SA 14–0166.,1 CA–SA 14–0166. |
| Citation | 338 P.3d 972,236 Ariz. 232,700 Ariz. Adv. Rep. 28 |
| Parties | Bret R. FRIMMEL, Petitioner, v. The Honorable Teresa A. SANDERS, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge. State of Arizona, Real Party in Interest. |
| Court | Arizona Court of Appeals |
Steptoe & Johnson LLP, By Paul K. Charlton, Quintin H. Cushner, Phoenix, Co–Counsel for Petitioner.
Gordon & Rees LLP, By Leon B. Silver, Phoenix, Co–Counsel for Petitioner.
Maricopa County Attorney's Office, By Arthur Hazelton, Phoenix, Counsel for Real Party in Interest.
OPINION
¶ 1 Defendant Bret Frimmel petitions for special action review of the trial court's denial of his request for an evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), and State v. Buccini, 167 Ariz. 550, 810 P.2d 178 (1991), to determine the validity of five search warrants. Because we find that Frimmel has made a substantial showing that the warrants were issued based upon supporting affidavits that the affiants knew or should have known contained recklessly false statements or omissions of relevant and known facts, we accept special action jurisdiction and remand to the trial court with directions to conduct a Franks hearing.
¶ 2 Frimmel is the owner of Uncle Sam's, a restaurant chain with multiple locations in Arizona. The Maricopa County Sheriff's Office (MCSO) received information from two informants suggesting Uncle Sam's illegally hired undocumented persons to work at its restaurants. In July 2013, following a year-long investigation, MCSO obtained three search warrants, supported by three virtually identical affidavits, to search Uncle Sam's Phoenix and Peoria locations and Frimmel's home. During the execution of the search warrants, ten employees were arrested, four of whom were ultimately convicted of identity theft.
¶ 3 In January 2014, upon completion of the investigation, Frimmel was arrested and charged with multiple felony offenses related to knowingly hiring and employing individuals with false identification. That same day, MCSO obtained two additional warrants, based upon two additional affidavits, to search the cell phones of Frimmel and an Uncle Sam's manager.
¶ 4 Before trial, Frimmel moved to suppress the evidence obtained during the execution of the five warrants, arguing there was insufficient probable cause to support the issuance of the warrants because the underlying affidavits contained numerous false statements and omitted known, relevant information. He sought a Franks hearing to confront and cross-examine the affiants. To support his request, Frimmel detailed each statement in the affidavits he believed to be false or incomplete, and identified the portions of public records and MCSO's own reports that contained contradictory and relevant omitted information. The following paragraphs recount misrepresentations contained within, or material omissions from, the affidavits supporting the warrants, as demonstrated by the documentation provided by Frimmel on review and, previously, to the trial court.
¶ 5 The affidavits do not reveal that the two initial informants were married. The affidavits state that the husband worked “mostly” at Uncle Sam's Scottsdale location, and left when that location closed in August 2012. To the contrary, Frimmel states the husband worked exclusively at the Scottsdale location until terminated from his employment in June 2012. The husband was subsequently convicted of felony theft for embezzling funds from Uncle Sam's, a fact also omitted from the underlying affidavit. Moreover, MCSO possessed Arizona Department of Economic Security (ADES) records, identified and referenced within the search warrant affidavits, confirming neither informant had worked for Uncle Sam's since the third quarter of 2012, at the latest.
¶ 6 Frimmel also identifies information tending to undermine the wife's credibility. First, Frimmel notes the wife made the initial call to authorities regarding Uncle Sam's hiring practices on the same day her husband was arrested for the above-referenced embezzlement. Second, the wife's conviction for possession of drug paraphernalia was not disclosed. Third, according to Frimmel, the wife voluntarily quit her position with Uncle Sam's in January 2011 after being admonished for poor work performance, and documentation provided indicates she lost her claim against Uncle Sam's for unemployment benefits. Finally, Frimmel states the wife worked only as a server at one location, and therefore possessed limited knowledge, if any, of the alleged illegal hiring practices for cooks and dishwashers. This information was not contained in the affidavits.
¶ 7 Frimmel further alleges the affidavits did not fully disclose the circumstances surrounding the four convicted former Uncle Sam's employees who participated in a “free talk” with MCSO about Frimmel's alleged criminal activity. The affidavits state the four ex-employees were “convicted of identity theft and forgery charges.” However, Frimmel provided public documents indicating each was convicted of a single class six felony for taking the identity of another, and was provided significant benefit in exchange for his cooperation with law enforcement—namely, release on his own recognizance and the deferral of action related to his immigration status, which allowed each to be lawfully present and employed in the United States during the period of deferral.
¶ 8 Frimmel notes the affidavits did not disclose that neither the husband nor the wife had any personal knowledge regarding Frimmel's home or Uncle Sam's Phoenix location. Frimmel states the informants never worked at the Phoenix location. And although the husband claimed, more than six months after his employment was terminated, that Frimmel said he kept business records in his home, the husband admitted he did not know which home Frimmel was referencing, and the residence that was ultimately searched was not owned by Frimmel during the husband's period of employment. Moreover, the affidavits omitted that surveillance of Frimmel's residence did not reveal any evidence suggesting it was used as a business office or place to maintain business records.
¶ 9 The affidavits also stated that vehicles belonging to employees suspected of working illegally were observed in the parking lot of two restaurant locations and Frimmel's personal residence. However, MCSO's own records reflect that no employee vehicles were ever observed at Frimmel's residence, and that it did not conduct any surveillance at the Peoria location.
¶ 10 Further, although the affidavits asserted that the Maricopa County Assessor's Office listed a business address for “Uncle Sam's” at Frimmel's home, public records reflect Frimmel's property as a residence, and do not contain any address information related to Uncle Sam's. Additionally, the ADES records, in MCSO's possession, do not establish any link to the residential address, but instead list the Peoria location as Uncle Sam's business address.
¶ 11 The affidavits stated the information obtained from the husband and wife was current as of February 2013. Based upon the facts submitted by Frimmel, the husband's personal knowledge of Uncle Sam's operations ended upon his termination in June 2012, and the wife's ended upon her resignation in January 2011.
¶ 12 With regard to the cell phone warrants, the affidavits contain no facts establishing probable cause that Frimmel used the cell phone “on or about the 1st day of October, 2013,” when the affidavit alleges criminal activity occurred. Frimmel contends no evidence exists within the reports detailing MCSO's investigation to suggest Frimmel engaged in any criminal conduct after July 17, 2013, more than six months prior to the issuance of these warrants.
¶ 13 Frimmel further argues there was no evidence indicating cell phones or telephones were ever used to facilitate the criminal activity alleged.
¶ 14 The affidavit stated the husband “was positive no employees had to fill out the A–4 state tax form.” Yet, the MCSO report specifically states the informant was “not positive” if employees were required to fill out this form. The husband was further quoted as saying Frimmel “never makes photocopies of identifications presented by employees,” when photocopying employee identification is irrelevant as it is not required by law.
¶ 15 Additionally, Frimmel identifies statements made by the four convicted ex-employees to MCSO that contradict the affidavits; these omitted statements indicate Frimmel followed lawful hiring procedures by requiring Social Security cards and photo identifications, and instructed his manager to watch employees fill out applications. According to Frimmel, each ex-employee also stated Frimmel was not involved in the hiring process, and three specifically stated they acted on their own to obtain the forged identification used to gain employment. This information was omitted from the warrant applications.
¶ 16 It is undisputed there has never been any allegation regarding drug use or trafficking in this case. However, the affidavit suggested otherwise by including the following paragraph:
It is also my experience that people who deal in quantities of illegal drugs have to communicate to successful [sic] control, operate, and facilitate an illegal drug trafficking organization. Telephones, pagers, and cellular telephones are some of the common forms of electronic communications used by drug trafficking organizations. T...
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