1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 JOSEPH MARTIN MCGHEE P.O. Box 91 Flagstaff, AZ 86002 (928) 600-0954 spurfy@icloud.com Defendant , in Pro per IN THE SUPERIOR COURT OF THE STATE OF ARIZONA IN AND FOR THE COUNTY OF COCONINO STATE OF ARIZONA , Plaintiff, v. JOSEPH MARTIN MCGHEE , Defendant. Case No.: CR20 21 - 00 508 DEFENDANT’S MOTION TO SUPPRESS EVIDENCE OBTAINED THROUGH EXECUTION OF SEARCH WARRANT (Request for Oral Argument) (Assigned to Hon. Dan Slayton, Div II) Defendant, pursuant to Ariz.R.Crim.P. 16.2, moves the Court to exclude all evidence obtained through the search warrant executed Flagstaff Police Detective Ryan Forsman on or about June 7, 2021 due to the clearly unlawful conduct of Mr. Forsman in securing this warrant. As set forth in the accompanying Memorandum of Points and Authorities, Detective Ryan Forsman deliberately fabricated material evidence which he then used as the basis for “probable cause” in his affidavit the search warrant. The information obtained through the execution of this warrant was then used to establish “probable cause” to arrest Defendant for stalking. Because the unlawful actions by Detective Forsman violated Defendant’s rights to be free from unreasonable searches under the United States and Arizona Constitutions, 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 the evidence obtained through this search warrant must therefore be excluded. I. FACTUAL BACKGROUND Defendant and the alleged victim, Dara Rabin, share a child-in-common, Silas McGhee, born February 14, 2015. Around July of 2020 Division VI of the Coconino County Superior Court entered an order as to a change in parenting time and custody exchange location as to Defendant and Ms. Rabin, with regard Silas, who was five years-old at the time. In this order the Court increased Defendant’s parenting time and ordered that all custody exchanges were to occur in the parking lot of the YMCA on Turquoise Drive, in Flagstaff. On or about August 6, 2020 Ms. Rabin made a report to FPD after allegedly finding a GPS tracking device in Silas’ stuffed toy after Defendant dropped off the child with Ms. Rabin in the parking lot of the YMCA for a custody exchange. In this report Ms. Rabin alleged that Defendant placed the device into the child’s toy, but did not allege that this conduct caused her any fear for her safety or the safety of any other person, related to her allegedly finding this device. A FPD officer thereafter contacted Defendant by phone to ask him about this device, whereupon Defendant told the officer he had no comment. From on or about August 11, 2020 – approximately one week after Ms. Rabin allegedly found the GPS device in Silas’ stuffed toy – and lasting until June 2, 2021, Ms. Rabin and Defendant conducted twice-weekly -- Thursdays at 10:00 AM and Saturdays at 7:00 AM 1 -- custody exchanges in the parking lot of the YMCA. During none of these exchanges did Ms. Rabin request that FPD or any other law enforcement be present for a civil standby, and at none of these exchanges were any police officers present. On February 11, 2021 Ms. Rabin allegedly found a GPS device lying in the snow 1 The YMCA has been closed on weekends since around April of 2020 due to the Covid-19 pandemic. 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 on a remote forest service road outside of Kendrick Park in unincorporated Coconino County. She reported this to the Coconino County Sheriff’s Department (“CCSO”) and told the deputy who took the report that she believed that Defendant had placed the device on her car. At no time did she allege to the report-taker that she felt any fear for her safety or the safety of any other person, related to her allegedly finding this device. Thereafter, the case was transferred to FPD for investigation. On or about March 13, 2021 Ms. Rabin sent an email to follow-up with FPD on her report regarding the GPS device she allegedly found on February 11, 2021 and which she alleged had been placed on her car by Defendant. In this email she does not allege any fear for her safety or the safety of any other person, related to her allegedly finding this device. On or about May 12, 2021 Ms. Rabin was interviewed by Forsman by telephone regarding the February 11, 2021 report she made as to the GPS device she allegedly found in Kendrick Park, and which she had alleged was placed on her car by Defendant. At the start of this interview, Forsman read to Ms. Rabin the text of A.R.S. § 13- 2921 (harassment) and A.R.S. § 13-2923 (stalking) and stated to her that in order to arrest Defendant for stalking, he would need to meet the elements of the crime. Thereafter, Ms. Rabin, for the very first time ever , stated that she feared that Defendant was going to kill her and Silas . Near the conclusion of this interview, Forsman told Ms. Rabin that he would shortly be seeking a search warrant for the GPS device, and then told Ms. Rabin not to tell Defendant about the stalking investigation. At no time during or after this interview did Forsman urge Ms. Rabin to seek an Order of Protection, or to have police offices perform a civil standby during custody exchanges. Neither did Forsman notify DCS of Ms. Rabin’s alleged fear that Defendant was going to kill Silas. On or about June 7, 2021, nearly a month after conducting his interview with Ms. Rabin, Forsman applied for and was granted a search warrant by Division II of the 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Coconino Superior Court, “in connection to a stalking investigation,” related to the GPS device that Ms. Rabin alleged on February 11 was placed on her vehicle by Defendant. This search warrant was executed on the GPS device manufacturer later that day. On or about June 8, 2021 the GPS manufacturer provided the information to Detective Forsman as requested in the search warrant. Mr. McGhee was arrested for stalking by Detective Forsman that same day. II. LEGAL ARGUMENT A. EXCLUSION OF EVIDENCE OBTAINED THROUGH A SEARCH WARRANT Arizona Rules of Criminal Procedure set forth that when a Defendant seeks to suppress evidence obtained pursuant to a search warrant, the State’s burden of proof of the lawfulness of the acquisition of evidence arises only after the defendant alleges specific circumstances and establishes a prima facie case supporting the suppression of evidence at issue. Ariz.R.Crim.P. (b)(2)(C). There is a therefore a presumption in favor of the validity of a search warrant and the defendant bears the burden of rebutting this presumption. State v. Smith , 112 Ariz. 531, 544 P. 2d 2113 (1975). B. DETECTIVE FORSMAN DELIBERATELY FABRICATED EVIDENCE IN ORDER TO OBTAIN A SEARCH WARRANT There is a clearly established constitutional due process right not to be subjected to criminal charges on the basis of false evidence that was deliberately fabricated by the government. Devereaux v. Abbey , 263 F.3d 1070, 1074-1075, 2001 U.S. App. LEXIS 19674, *7-8, 2001. A police officer who fabricates evidence and forwards that evidence to a prosecutor (who then uses it against a defendant) is liable for the consequences of his misconduct. See, e.g., Stemler v. City of Florence , 126 F.3d 856, 872 (6th Cir. 1997); Ricciuti v. N.Y.C. Transit Authority , 124 F.3d 123, 130 (2d Cir. 1997); Jones, 856 F.2d at 993-94. 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 In order to support a deliberate-fabrication-of-evidence claim, a plaintiff must, at a minimum, point to evidence that supports at least one of the following two propositions: (1) the police continued their investigation of the plaintiff despite the fact that they knew or should have known that he was innocent; or (2) the police used investigative techniques that were so coercive and abusive that they knew or should have known that those techniques would yield false information. Id. A determination of “probable cause” based on fabricated evidence therefore presents a cognizable Fourth Amendment claim even if such determination is made, or later affirmed, by a judge or grand jury. Manuel v. City of Joliet, 137 S. Ct. 911 (2017). Detective Forsman fabricated material evidence. This is patently obvious in that the alleged victim, in spite of her multiple prior contacts with officers investigating her GPS stalking allegation, never once articulated any fear of Defendant, any fear for her safety, or any fear for the safety of any others. It was not until she was interviewed by Forsman on or about May 12, 2021, where he began the interview by reading her the text of the stalking statute and explicitly informed her that she needed to allege fear for her safety in order for Defendant to be arrested , 2 that Ms. Rabin ever articulated any fear as to Defendant. Prior to this interview, the alleged victim had three separate contacts with Flagstaff Police officers related to this matter and not once had alleged, even implicitly, that she feared for her safety or anyone else’s as to Defendant. Detective Forsman was well-aware of this fact, having reviewed the case file immediately prior to 2 Flagstaff Police Department Policy 333 – stalking investigations – sets forth that the investigating detective’s responsibilities include “determin[ing] the victim's state of mind. This means articulating how the incident affected the victim's sense of safety, fear of physical injury to self or family members.” Nothing in this policy holds that the investigating detective should begin the interview by informing the alleged victim of exactly what he or she needs to say in order to satisfy a necessary element of the stalking statute especially in the complete absence of any previous statements made by the alleged victim as to his or her state of mind. 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 his telephone interview with Ms. Rabin. He also unquestionably, as a Flagstaff Police detective, knew that without being able to allege the crucial element of fear by Ms. Rabin he would not be able to obtain a search warrant for the GPS device and that the stalking case against Defendant would have to be closed because the alleged conduct by Defendant constituting the “surveillance element” of stalking had already ceased more than six months prior. Detective Forsman knowingly and intentionally provided instruction to Ms. Rabin as to exactly what she needed to allege regarding her mental state during the interview in order for him to obtain a search warrant for the GPS device. It was not until the moments immediately following Forsman’s reading of the stalking statute to Ms. Rabin that she first alleged any fear related to the alleged GPS surveillance. Detective Forsman therefore fabricated the material evidence which was used to obtain the search warrant. This violated Defendant’s right to be free from unreasonable searches under the Fourth Amendment to the United States Constitution. C. THE RESULTS OF THE SEARCH WARRANT MUST BE SUPPRESSED. It is well-settled that a defendant may challenge a warrant by challenging the truthfulness of statements therein. Where a defendant (1) “makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard of the truth, was included by the affiant in the warrant affidavit,” and (2) demonstrates that “the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request.” Franks v. Delaware , 438 U.S. 154, 155-56 (1978) (“Franks”). To obtain a Franks hearing, the defendant need not demonstrate “clear proof” of deception; the question of proof is “reserved for the evidentiary hearing.” United States v. Stanert , 762 F.2d 775, 781 (9th Cir. 1985) (citing United States v. Chesher , 678 F.2d 1353, 1362 (9th Cir. 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 1982)). Proof that an affiant entertains serious doubts concerning the affidavit’s truth can be proven by obvious circumstances that impeach the credibility of the information in the affidavit. Here, the affidavit can be clearly shown to contain a knowing, intentional, or reckless falsehood: That the alleged victim, Dara Rabin, reasonably feared death or the death of another because of the alleged GPS surveillance by Defendant which had occurred more than six months prior. 1. WITH THE FALSE STATEMENTS CORRECTED, THE AFFIDAVIT DOES NOT SUPPORT A FINDING OF PROBABLE CAUSE. Without Forsman’s statement in the affidavit that Ms. Rabin was in fear for her life over the alleged surveillance by Defendant, which Detective Forsman in fact manufactured during his interview of her, what is left of the affidavit? (1) A GPS device allegedly found by Ms. Rabin in Silas’ stuffed animal 3 August of 2020; and (2) a GPS device allegedly found by Ms. Rabin on a dirt road in unincorporated Coconino County. Neither of these conditions, either separately or together, can in any manner support a finding of probable cause that the crime of stalking had occurred. Stalking necessarily requires an element of fear of death, or significant mental suffering or distress. See, e.g. A.R.S. § 13-2923(A)(1) (emotional distress), (A)(2) (fear of death). Until Detective Forsman’s leading interview of her, Ms. Rabin had never alleged any fear of Defendant related to this alleged GPS surveillance, in spite of the fact that she had spoken with police three prior times over this. Defendant has therefore made a “substantial preliminary showing” that Forsman’s affidavit contains deliberate false statements. With the false statements corrected, the 3 A.R.S. § 13-2923(D)(1)(b) explicitly exempts GPS surveillance of a minor child by the child’s parent or guardian. 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 affidavit does not provide probable cause to suspect Mr. McGhee of any criminal activity. Therefore, he is entitled to a Franks hearing. III. CONCLUSION For the reasons argued above, this court should suppress all evidence seized as a result of the June 7, 2021 search warrant and there execution thereof. Respectfully submitted, /s/ Joseph McGhee Joseph Martin McGhee P.O. Box 91 Flagstaff, Arizona 86002 Defendant, in Pro per The foregoing filed, and served electronically, via EFileAZ, and a COPY via email to: Ammon Barker Deputy Coconino County Attorney abarker@coconino.az.gov Sandra Klotz Legal Assistant to Prosecutor sklotz@coconino.az.gov Carrie Faultner Division II Judicial Assistant cfaultne@courts.az.gov