Naugle v. Witney, Civ. No. 89-C-372W.

• Citation: 755 F. Supp. 1504
• Decision Date: 31 December 1990
• Docket Number: Civ. No. 89-C-372W.
• Parties: Phillip E. NAUGLE, Cheryl Susanne Naugle, and Search Investigation, Inc., a Utah corporation, Plaintiffs, v. Doug WITNEY, in his individual capacity and as a Deputy Utah County Sheriff, Orem City, a municipal corporation, Utah County, a body politic, David R. Bateman, in his individual capacity and as Utah County Sheriff, Owen Quarnberg, in his individual capacity and as a Deputy Utah County Sheriff, Ted Peacock, Orem City Police Chief, Doug Edwards, in his individual capacity and as an Orem City Police Officer, John L. Allan, in his individual capacity and as a Deputy Utah County Attorney, Craig R. Madsen, in his individual capacity and as a Deputy Utah County Attorney, Steven Killpack, in his individual capacity and as Utah County Attorney, and John Does 1-30, Defendants.
• Court: U.S. District Court — District of Utah

755 F. Supp. 1504

Phillip E. NAUGLE, Cheryl Susanne Naugle, and Search Investigation, Inc., a Utah corporation, Plaintiffs, v. Doug WITNEY, in his individual capacity and as a Deputy Utah County Sheriff, Orem City, a municipal corporation, Utah County, a body politic, David R. Bateman, in his individual capacity and as Utah County Sheriff, Owen Quarnberg, in his individual capacity and as a Deputy Utah County Sheriff, Ted Peacock, Orem City Police Chief, Doug Edwards, in his individual capacity and as an Orem City Police Officer, John L. Allan, in his individual capacity and as a Deputy Utah County Attorney, Craig R. Madsen, in his individual capacity and as a Deputy Utah County Attorney, Steven Killpack, in his individual capacity and as Utah County Attorney, and John Does 1-30, Defendants.

Civ. No. 89-C-372W.

United States District Court, D. Utah, C.D.

December 31, 1990.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Ross C. Anderson, Timothy W. Miller, Salt Lake City, Utah, for plaintiffs.

Anne Swensen, Salt Lake City, Utah, for defendants Ted Peacock, Doug Edwards and Orem City.

Dale J. Lambert, Wesley M. Lang, Salt Lake City, Utah, for defendants Doug Witney, Owen Quarnberg, John L. Allan and Craig R. Madsen.

Guy Burningham, Utah County Atty., Provo, Utah, for defendants David R. Bateman, Steven Killpack and Utah County.

MEMORANDUM DECISION AND ORDER

WINDER, District Judge.

This matter is before the court on cross-motions for summary judgment. A hearing on the motions was held September 27, 1990. Plaintiffs were represented by Ross C. Anderson and Timothy W. Miller. Defendants Doug Witney, Owen Quarnberg, John Allan and Craig Madsen were represented by Guy Burningham, Dale J. Lambert and Wesley M. Lang. Before the hearing, the court considered carefully the memoranda and other materials submitted by the parties in relation to the motions. Since taking the matter under advisement, the court has further considered the law and facts relating to this motion. Now being fully advised, the court renders the following memorandum decision and order.

BACKGROUND

This case stems from the February 2, 1989 search of plaintiffs Phillip and Cheryl Naugle's home and office by officers of the Utah County Sheriff's Office ("Sheriff's Office"). Because of the issues involved, a detailed recitation of the events leading up to the search and the circumstances surrounding it is necessary.

A. The Investigation

In late 1988, the Sheriff's Office began an investigation into the activities of Phillip and Cheryl Naugle, and their business, Search Investigation, Inc. ("SII"). SII is a private investigation business organized by the Naugles in 1983. The Naugles are the sole owners of SII and they run the business out of their home in Orem, Utah. During the week of January 23, 1989, Doug Witney, a Sheriff's Office detective, was assigned to the investigation. During the course of the investigation, Witney met with at least four individuals — Jim Johnson, Michael Borjessen, David Barksdale and Kirk Myers — who claimed to have worked for SII at the direction of Phillip Naugle. These individuals provided information linking Phillip Naugle and SII to criminal activity.

1. The Informants

Johnson told Witney that Naugle was using letterhead from the Utah County Constable's Office to further SII's business interests. Johnson provided Owen Quarnberg, a Sheriff's Office captain, with original letters drafted on the Constable letterhead. Witney later was informed by a United States Postal Service official that Phillip Naugle had identified himself as a Utah County Constable while conducting business at the post office. Johnson told Witney he tried to set up wiretaps at Phillip Naugle's direction. Johnson also told of occasions when he had been ordered to trespass and photograph inside people's homes.

At the time he was an agent for SII, Borjessen also was a Deputy Utah County Constable. Borjessen told Witney that on one occasion he called Phillip Naugle's office number and Cheryl Naugle answered the phone saying, "Constable Borjessen's office" and then Phillip Naugle answered the phone, identifying himself as Mr. Borjessen, Deputy County Constable.

Informant Barksdale told Witney of a 1985 case in which Phillip Naugle allegedly directed the kidnapping of children in Arizona for a non-custodial parent who was a client of SII. Barksdale told Witney that Phillip Naugle had instructed him to purchase handcuffs, mace and a nightstick for use in the job. Witney later confirmed that SII had billed the client for the nightstick, mace and handcuffs.

On January 31, 1989, Witney met with informant Myers, who showed Witney files he had kept of his activities while employed at SII. Myers identified three specific cases in which Phillip Naugle allegedly directed illegal wiretapping: the Lynn Neilson, Richard Lichtenfels and Maretta Anderson cases. Myers also told Witney of various other allegedly illegal activity, including an incident where he was directed to threaten an individual in order to get payment for a client.

2. The Garbage Search

In an effort to obtain evidence corroborating the informants' information, Witney and other officers searched the Naugles' garbage in front of their house on the public right-of-way. During the search, officers located a letter addressed to the "Utah County Constable, Search Investigations Division" and letters drafted on Utah County Constable letterhead. The officers also found what appeared to be an income tax form in the garbage purporting to report income to certain agents, including approximately $4,000 to Myers for 1988. Myers told Witney that he did not earn $4,000 from SII during that year. He later provided Witney records supporting that statement.

B. The Affidavit

Based on information received from the informants and other witnesses, evidence gathered during the garbage search, and on review of certain documents, Witney drafted an Affidavit in Support of Search Warrant ("Affidavit"). On February 1, 1989, Witney took the Affidavit to Deputy County Attorney John L. Allan for review. Allan and Witney then took the affidavit to Craig Madsen, Chief of the Criminal Prosecution Division, for review. Allan and Madsen approved the Affidavit with some recommended changes, which were incorporated.

The Affidavit consists of thirteen paragraphs. Paragraphs two through nine recite evidence of Naugle's and SII's criminal activity that the Sheriff's Office had gathered from the confidential informants and other witnesses. Paragraph eleven of the Affidavit reads as follows:

11. Due to the scope of Search Investigations illegal business activities a search is requested for any and all business forms and or documents inscribed, printed, or copied upon with the Utah County Constable insignia or office title, and recordings or player, any surveillance equipment, photographs, telephone records or equipment, personnel files, payroll records, business records, contracts, computer equipment, tube cameras, both hard and software, radios, scanners, cameras, video equipment, and any other articles used in the support or furtherance of illegal activity.

Affidavit ¶ 11. During their review of the Affidavit, Allan and Madsen agreed that the request for business records in ¶ 11 was as particular as reasonably possible under the circumstances.

C. The Probable Cause Presentation and Issuance of the Warrant

On February 1, 1990, Witney presented the Affidavit to the Honorable Lynn Davis, a Judge of the Fourth Circuit of Utah County, and requested that Judge Davis issue a Search Warrant ("Warrant") for plaintiff's home and office. On that date, Witney presented additional testimony to Judge Davis in support of the Warrant.

Witney testified regarding (1) the recovery from the Naugles' garbage of stationery bearing the Utah County Constable logo; (2) an informant's use of a "tube camera" in the surveillance of individuals engaged in sex (Witney learned after the search that the informant never carried out the assignment); (3) the use of cameras to photograph houses where illegal wiretapping had allegedly taken place; (4) the alleged involvement of SII and Phillip Naugle in the 1985 kidnapping in Arizona and the belief that evidence of that involvement might be found in plaintiff's personnel and business records; and (5) evidence of falsification of payroll records. Witney's testimony regarding the allegedly false payroll records was received after Judge Davis signed the Warrant.

Witney did not inform Judge Davis on the record that he had information suggesting SII was an "ongoing criminal enterprise" or "racketeering enterprise." Witney did tell Judge Davis off the record, however, that he had concluded that SII was permeated with criminal activity.

At the conclusion of Witney's testimony, Judge Davis issued the Warrant, which authorized search and seizure of the following items:

Letters, papers, documents, checks or envelopes inscribed or printed upon with the Utah County Constable, the Utah County Constable Star, or any such insignia which gives the appearance or represents a government agency, or anything else that in its nature could be used to imply an affiliation with such an agency, any surveillance equipment including electronic listening and recording devices, cameras, binoculars, radios, telephone hardware and records, business records, personnel files, payroll records, computer, both hard and software, contracts, tapes or video equipment, and any other articles used in the support or furtherance of.

Warrant at 2.

The final clause in the above-cited portion of the Warrant does not have an object. Although neither Allan nor Madsen reviewed the Warrant before it was obtained, Allan expected the Warrant to follow the Affidavit. Madsen expected the Warrant to be similar to the Affidavit. After Judge Davis signed the Warrant, Witney advised the judge that some of SII's records relating to possible tax...