Frimmel v. Hon. sanders/state

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

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.

No. 1 CA-SA 14-0166

FILED 11-25-2014

Petition for Special Action from the Superior Court in Maricopa County

No. CV2014-103633-001

The Honorable Teresa A. Sanders, Judge

JURISDICTION ACCEPTED; RELIEF GRANTED

COUNSEL

Steptoe & Johnson LLP, Phoenix

By Paul K. Charlton, Quintin H. Cushner

Co-Counsel for Petitioner

Polsinelli PC, Phoenix

By Leon B. Silver

Co-Counsel for Petitioner

Maricopa County Attorney’s Office, Phoenix

By Arthur Hazelton

Counsel for Real Party in Interest

FRIMMEL v. HON. SANDERS/STATE

Opinion of the Court

OPINION

Judge Kenton D. Jones delivered the opinion of the Court, in which

Presiding Judge Peter B. Swann and Judge Michael J. Brown joined.

J O N E S, Judge:

¶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 (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.

FACTS1 AND PROCEDURAL HISTORY

¶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

1 The State’s response to Frimmel’s special action petition argues only that

this Court should decline special action jurisdiction, and does not refute or

even address Frimmel’s factual allegations. Therefore, for the purposes of

our evaluation of the need for a Franks hearing, we accept the factual

allegations of the petition as true. By employing this standard of review,

we do not bind the trial court to any findings following its evaluation of the

evidence.

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Opinion of the Court

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.

I. Credibility of Informants

¶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

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FRIMMEL v. HON. SANDERS/STATE

Opinion of the Court

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.

II. Lack of Information Linking the Phoenix Location or Frimmel’s

Residence to Illegal Activity

¶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

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FRIMMEL v. HON. SANDERS/STATE

Opinion of the Court

any link to the residential address, but instead list the Peoria location as

Uncle Sam’s business address.

III. Stale Information

¶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.

IV. Evidence Regarding Hiring Practices

¶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 affdiavits; 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.

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FRIMMEL v. HON. SANDERS/STATE

Opinion of the Court

V. Suggestion of Unrelated Criminal Drug Activity

¶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. They communicate by voice, text,

video, instant messenger push to talk “Walkie-Talkie style”

communication and photographs to avoid police detection.

VI. Other Circumstances Surrounding Collection of Information

¶17 The affidavit states that MCSO received an anonymous tip in

October 2012 regarding the Uncle Sam’s Scottsdale location. According to

the MCSO report provided by Frimmel, the only tip it received related to

the Peoria location.

¶18 The magistrate was not advised that the affidavits were

based, at least in part, upon information obtained by a deceased MCSO

officer found in possession of illegal drugs, MCSO evidence bags, and

hundreds of stolen driver’s licenses, identifications, license plates,

passports, airport security clearance cards and wallets.

¶19 The affidavit used to support the search of Frimmel’s cell

phone states that an unidentified database connected Frimmel to the phone

number, and that a voicemail message identified Frimmel by name.

Frimmel again points to MCSO’s investigation reports in noting the

affidavit omits MCSO actually recovered the phone during Frimmel’s

arrest, and obtained the phone number through a warrantless extraction of

information the next day.

¶20 Frimmel identifies inconsistencies regarding even seemingly

insignificant facts in the case, noting the cell phone affidavits state the

original search warrants were executed on July 7, 2013 — ten days earlier

than they were actually executed — and that Frimmel’s manager was

actually an owner of Uncle Sam’s.

¶21 The remaining information supporting the warrants

authorizing the search of Uncle Sam’s Phoenix and Peoria locations and

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FRIMMEL v. HON. SANDERS/STATE

Opinion of the Court

Frimmel’s personal residence consisted of MCSO’s discovery of a large

number of “discrepancies” regarding the Social Security numbers Uncle

Sam’s employees provided to ADES. These discrepancies included Social

Security numbers associated with more than one name, more than one

address, only an out-of-state address, or for which there was no record. No

additional information was provided to support the cell phone warrants.

JURISDICTION

¶22 This Court has discretion to accept special action jurisdiction,

Potter v. Vanderpool ex rel. Cnty. of Pinal, 225 Ariz. 495, 498, ¶ 6, 240 P.3d 1257,

1260 (App. 2010), and will generally do so only in cases that raise issues of

statewide importance, issues of first impression, pure legal questions, or

issues that are likely to arise again. Luis A. v. Bayham-Lesselyong ex rel. Cnty.

of Maricopa, 197 Ariz. 451, 452-53, ¶ 2, 4 P.3d 994, 995-96 (App. 2000) (citing

Andrade v. Superior Court, 183 Ariz. 113, 115, 901 P.2d 461, 463 (App. 1995)).

Special action jurisdiction may also be appropriate where there is “no plain,

adequate or speedy remedy by appeal, and justice cannot be obtained by

other means.” Id. (citing Nataros v. Superior Court, 113 Ariz. 498, 499, 557

P.2d 1055, 1056 (1976)).

¶23 Magistrates are asked to issue search warrants based upon the

integrity of their supporting affidavits, and in the course of those efforts,

must rely upon affiants to provide truthful, accurate, and complete

information to substantiate the existence of probable cause. An important

purpose of the defendant’s right to challenge the sufficiency of probable

cause, through a Franks hearing, is “to mitigate the dangers of the ex parte

procedure used to obtain a search warrant, and to deter over-zealous

officers from supplying false information in their efforts to obtain access to

the constitutionally protected privacy of [the defendant].” Buccini, 167 Ariz.

at 558, 810 P.2d at 186 (citing Franks, 438 U.S. at 168-69).

¶24 Here, Frimmel argues he was improperly denied a hearing to

examine the sufficiency of probable cause supporting five separate

warrants where the supporting affidavits misstated facts contained within

the agency’s own reports, omitted crucial information regarding the depth

and breadth of informants’ actual knowledge and possible biases, and

overstated the evidence against the defendant concerning the alleged

crimes. Although a defendant could address the denial of a Franks hearing

on direct appeal, the latitude afforded to law enforcement when providing

information, under oath, to support a magistrate’s issuance of a search

warrant is a matter of statewide importance. We therefore accept

jurisdiction of this special action.

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Opinion of the Court

STANDARD OF REVIEW

¶25 We review the denial of a request for a Franks hearing de novo.

United States v. Reeves, 210 F.3d 1041, 1044 (9th Cir. 2000). Additionally, the

legal determination of probable cause, based upon a complete and accurate

search warrant affidavit, is reviewed de novo. See Buccini, 167 Ariz. at 555-

56, 810 P.2d at 183-84.

DISCUSSION

¶26 The Fourth Amendment to the U.S. Constitution requires a

search warrant be issued only upon probable cause. U.S. Const. amend. IV;

State v. Pike, 113 Ariz. 511, 513, 557 P.2d 1068, 1070 (1976). The existence of

probable cause must be determined by a detached, disinterested magistrate

after considering sworn statements. Ariz. Rev. Stat. §§ 13-3913 to -3915

(2014); Pike, 113 Ariz. at 513, 557 P.2d at 1070. Given the potential for abuse

of the ex parte procedure by which warrants are issued, the defendant may

challenge a search warrant based upon false or incomplete information.

Buccini, 167 Ariz. at 558, 810 P.2d at 186 (citing Franks, 438 U.S. at 168-69).2

¶27 Specifically, a defendant is entitled to a hearing to challenge a

search warrant affidavit when he makes a substantial preliminary showing

(1) that the affiant knowingly, intentionally, or with reckless disregard for

the truth included a false statement in the supporting affidavit, and (2) the

false statement was necessary to the finding of probable cause. State v.

Poland, 132 Ariz. 269, 279, 645 P.2d 784, 794 (1982) (citing Franks, 438 U.S. at

155-56). A Franks challenge is also authorized when it has been shown “a

warrant affidavit valid on its face . . . contains deliberate or reckless

omissions of facts that tend to mislead.” United States v. Stanert, 762 F.2d

775, 781 (9th Cir.), amended on other grounds, 769 F.2d 1410 (9th Cir. 1985).

An affiant is not permitted to tell “less than the total story” to “manipulate

the inferences a magistrate will draw,” or “intentionally or recklessly omit[]

facts required to prevent technically true statements in the affidavit from

being misleading.” Id. “To allow a magistrate to be misled in such a

2 We acknowledge and agree that “the fact that an informant has given false

information to a police affiant will not serve to vitiate the existence of

probable cause,” absent a showing that the affiant knew or should have

known of the misrepresentation or omission. Pike, 113 Ariz. at 513, 557 P.2d

at 1070. We focus this Opinion, instead, upon specific statements and

omissions the record reflects the affiant knew or had reason to know were

false and/or material by virtue of contradictory evidence contained within

law enforcement’s own reports and public records.

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Opinion of the Court

manner could denude the probable cause requirement of all real meaning.”

Id. (citing Franks, 438 U.S. at 168).

¶28 If the defendant then proves, at an evidentiary hearing,

perjury or reckless disregard for the truth by a preponderance of the

evidence, the false statement must be excised from the affidavit. Poland, 132

Ariz. at 279, 645 P.2d at 794. Unless the affidavit, purged of its falsities and

supplemented by its omissions, provides a sufficient basis for probable

cause, the search warrant must be voided and the evidence seized pursuant

to it must be suppressed. Id. (citing United States v. Young Buffalo, 591 F.2d

506, 509 (9th Cir. 1979)); Stanert, 762 F.2d at 782.

¶29 Here, the trial court denied Frimmel the opportunity to

explore the alleged falsehoods and omissions at an evidentiary hearing. We

therefore consider whether Frimmel made the requisite “substantial

preliminary showing,” prescribed by Franks. Poland, 132 Ariz. at 279, 645

P.2d at 794 (citing Franks, 438 U.S. at 155); see also United States v. Chesher,

678 F.2d 1353, 1362 (9th Cir. 1982) (“Clear proof is not required [at the

motion stage] — for it is at the evidentiary hearing itself that the defendant,

aided by live testimony and cross-examination, must prove actual

recklessness or deliberate falsity.”).

A. Deliberate Falsehood or Reckless Disregard for the Truth

¶30 Because a search warrant affidavit is presumed to be valid, a

challenge to its sufficiency must be more than conclusory or speculative.

Franks, 438 U.S. at 171. Therefore, a defendant must make specific

allegations of deliberate falsehoods or reckless disregard for the truth, with

reference to the relevant portion of the warrant, and support the allegations

with a detailed offer of proof and statement of supporting reasons. Id.

¶31 A search warrant affidavit must be read in a common sense

and realistic manner. State ex rel. Collins v. Superior Court, 129 Ariz. 156, 158,

629 P.2d 992, 994 (1981). Although an innocent or negligent mistake does

not constitute a Franks violation, the use of out-of-date information as an

expression of current status tends to support a claim of recklessness.

Chesher, 678 F.2d at 1360-61. The Fourth Amendment requires that “facts

constituting probable cause . . . be ‘so closely related to the time of the issue

of the warrant as to justify a finding of probable cause at that time.’” State

v. Miguel, 209 Ariz. 338, 341, ¶ 13, 101 P.3d 214, 217 (App. 2004) (quoting

Sgro v. United States, 287 U.S. 206, 210 (1932)). Therefore, “a[n] affidavit

used to support a search warrant ‘must speak as of the time of the issue of

that warrant.’” State v. Kasold, 110 Ariz. 563, 566, 521 P.2d 995, 998 (1974)

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(quoting Srgo, 287 U.S. at 211); see also State v. Turney, 134 Ariz. 238, 241, 655

P.2d 358, 361 (App. 1982) (presuming information was stale, and incapable

of supporting probable cause, where there was no indication as to the dates

of the alleged illegal activity).

¶32 Based upon the record before us, the affidavits were based

heavily upon information from informants who had, at best, limited

personal knowledge of Frimmel’s hiring and record-keeping practices, and

the timeliness of information they provided expired long before the warrant

was sought. The affiant did not state when he obtained the information

from the informants, but alleged it was current as of February 2013 — still

five months before the issuance of the warrants. The reliance upon stale

information is troubling in that more recent information within law

enforcement’s reports, and thereby within its possession and withheld from

the magistrate, specifically contradicted the statements in the affidavits and

affirmatively indicated Frimmel acted lawfully by requiring

documentation of legal status prior to hiring.

¶33 Failure to disclose the history, background, and motivation of

an informant may be a material omission from a search warrant affidavit.

See United States v. Elliott, 322 F.3d 710, 716 (9th Cir. 2003) (noting “an

informant’s criminal past involving dishonesty is fatal to the reliability of

the informant’s information, and his/her testimony cannot support

probable cause” absent additional evidence that bolsters the reliability of

the tip or information (quoting Reeves, 210 F.3d at 1045)); United States v.

Hall, 113 F.3d 157, 159 (9th Cir. 1997) (finding concession by the government

that a law enforcement officer failed to disclose certain convictions of an

informant while testifying to others satisfied requirement that there had

been a reckless disregard of the truth). But see United States v. Ruiz, 758 F.3d

1144, 1149, 1152 (9th Cir. 2014) (excusing “serious omissions” regarding an

eyewitness’s dishonest behavior and motive to lie where other

corroborating information was available to support her statements).

¶34 Here, the affidavits provided virtually no background

information on any of the informants, thereby depriving the magistrate of

the opportunity to meaningfully and neutrally evaluate the veracity of the

informants, much less the information they provided to MCSO. Had the

magistrate been aware the two initial informants were husband and wife

who (1) were discharged many months earlier for (proven) criminal activity

against Frimmel; (2) had exhibited poor work performance; and (3)

possessed minimal current personal knowledge regarding Uncle Sam’s

hiring practices, we cannot conclude the magistrate would have found the

informants or their information credible or sufficiently reliable to support

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the existence of probable cause. Similarly, without any information

regarding the relatively minor consequences and significant immigration

benefits bestowed upon the four convicted ex-employees, the magistrate

could not make an independent and informed decision regarding their

credibility.

¶35 While every fact in the affidavit need not be true, Franks, 438

U.S. at 165, law enforcement officers are not permitted to exaggerate known

facts to falsely substantiate the magnitude of a crime or create probable

cause where none exists. See Stanert, 762 F.2d at 781; see also State v. Payne,

25 Ariz. App. 454, 457-58, 544 P.2d 671, 674-75 (1976) (excluding evidence

obtained as a result of a search warrant that falsely implied an informant

personally observed heroin in the defendant’s possession). To accept the

“possibility that [some fact] might be true . . . would be to ignore the

requirements of probable cause and truthfulness.” State v. Claxton, 122

Ariz. 246, 248, 594 P.2d 112, 114 (App. 1979) (finding officer’s statement in

affidavit that defendant was in possession of merchandise was “knowingly

and intentionally false” or “made with reckless disregard for the truth”

where officer testified that, at best, there was “only a possibility that the

jewelry was back in [defendant’s] possession”). Based upon the

documentation and information provided, the affiants, at a minimum,

exaggerated the strength of the allegations levied against Frimmel by

overstating the evidence against him and overstating the alleged existence

of business activity at his home when MCSO apparently had little, if any,

actual knowledge of the details of Frimmel’s hiring practices. It is not

within the power of an affiant, within the strictures of the Fourth

Amendment, to alter an honest “maybe” to a false “yes” in order to obtain

a warrant.

¶36 Finally, the unexplained failure to discover and/or disclose

written information prepared by and readily available to law enforcement

agents through the course of their investigation tends to corroborate a

defendant’s charge that the affiant acted recklessly. See Chesher, 678 F.2d at

1360-61 (finding unpersuasive officer’s claim that he was unaware of

written report of law enforcement agency prepared four years prior that

contradicted information contained in the search warrant affidavit). Our

supreme court has noted that when “the affiant both knew the correct facts

while swearing to false facts and omitted other facts that he knew, the

conclusion seems inescapable” that averments were made knowingly,

intentionally, or recklessly. Buccini, 167 Ariz. at 554 n.5, 810 P.2d at 182 n.5.

Here, the affiants misstated or omitted important, material facts either

contained within MCSO’s own investigative reports or other obvious,

available public records, and we have been provided no explanation for the

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failure to review those reports to ensure the integrity of the affidavits

supporting the requested warrants.

¶37 Based upon the record before us, the seemingly pervasive

misstatements of basic facts and numerous misrepresentations and

omissions of material facts, we conclude Frimmel made a substantial

preliminary showing that false statements and material omissions were

made with, at a minimum, reckless disregard for the truth.

B. Sufficiency of Probable Cause

¶38 Having concluded Frimmel made a substantial preliminary

showing that the affidavits contained recklessly false statements or

omissions, we next address whether “the remaining content of the

affidavit[s] is sufficient to support a finding of probable cause.” State v.

Carter, 145 Ariz. 101, 109, 700 P.2d 488, 496 (1985). In order to do so, we first

redraft the affidavits to remove the falsehoods and add in material omitted

facts. Id. In determining whether the redrafted affidavits sufficiently

support a finding of probable cause, we apply the totality of the

circumstances standard articulated by the U.S. Supreme Court in Illinois v.

Gates, 462 U.S. 213 (1983). Buccini, 167 Ariz. at 556, 810 P.2d at 184. “An

officer has probable cause to conduct a search if a reasonably prudent

person, based upon the facts known by the officer, would be justified in

concluding that the items sought are connected with the criminal activity

and that they would be found at the place to be searched.” Id.

¶39 If the affiants had simply provided the magistrate with only

accurate and reliable information, as supported by MCSO’s own report and

public record, they would have reported that a number of individuals hired

by Uncle Sam’s in the previous year were using Social Security numbers

connected to more than one name, more than one address, only an out-of-

state address, or unconnected to any name or address. What is lacking in

the record is credible evidence to support the alleged complicity of

Frimmel; that Frimmel participated in illegal activity, let alone conspired

with others to hire undocumented persons or assist them in forging

credentials, appears to be left purely to conjecture based upon the records

before this Court.

¶40 Probable cause cannot be established by mere suspicion that

a search will reveal items connected to criminal activity. Buccini, 167 Ariz.

at 557, 810 P.2d at 185 (citing United States v. Kandlis, 432 F.2d 132, 135-36

(9th Cir. 1970), and State v. Hutton, 110 Ariz. 339, 341, 519 P.2d 38, 40 (1974)).

To the contrary:

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The point of the Fourth Amendment, which is often not

grasped by zealous officers, is not that it denies law

enforcement the support of the usual inferences which

reasonable men draw from evidence. Its protection consists

in requiring that those inferences be drawn by a neutral and

detached magistrate instead of being judged by the officer

engaged in the often competitive enterprise of ferreting out

crime.

Id. (quoting Johnson v. United States, 333 U.S. 10, 13-14 (1948)).

¶41 Based upon the record before us, correction of the alleged

false statements and addition of the omitted facts would defeat a finding of

probable cause. If Frimmel proves that (1) the statements discussed above

were false, (2) the omitted facts were true, and (3) the misrepresentations

and omissions were made intentionally or with reckless disregard to their

truth, we would conclude that the searches violated the Fourth

Amendment. Frimmel has therefore satisfied both prongs of Franks, and is

entitled to an evidentiary hearing to examine the sufficiency of probable

cause supporting the five warrants at issue.

CONCLUSION

¶42 While evidentiary hearings into an affiant’s veracity shall not

be obtainable upon a bare allegation of bad faith, Franks, 438 U.S. at 171, we

do not consider the “rights secured by the constitution [] mere

‘technicalities’ which should be swept aside in the interests of expediency

even to accomplish the most desired social goal.” Bolt, 142 Ariz. at 267, 689

P.2d at 526. Here, Frimmel has made a substantial preliminary showing of

numerous false statements, misrepresentations and/or material omissions

contained within the affidavits submitted in support of the warrants that

could have affected the magistrate’s evaluation of probable cause. We hold

that “[w]here there is significant doubt about the propriety of police

practice and its impact on an important credibility determination

supporting a probable cause conclusion, we should exercise caution on the

side of the Fourth Amendment and improved police practices . . . .” Ruiz,

758 F.3d at 1153 (Gould, J., dissenting). On the record before us, Frimmel is

entitled to a Franks hearing to challenge the existence of probable cause to

support the warrants.

¶43 We therefore accept jurisdiction, reverse the trial court’s

denial of Frimmel’s request for a Franks hearing, and remand to the trial

court for action consistent with this Opinion. If Frimmel is able to prove

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Opinion of the Court

some or all of the averments or omissions were made knowingly,

intentionally, or recklessly, the trial court must determine whether the

corrected affidavits are sufficient to support a finding of probable cause for

the warrants. If so, the searches were proper. If not, the evidence obtained

from the improper search or searches must be suppressed.

:gsh

14