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1 JOSEPH MARTIN MCGHEE P.O. Box 91 2 Flagstaff, AZ 86002 (928) 600-0954 3 [email protected] Defendant, in Pro per 4 5 6 IN THE SUPERIOR COURT OF THE STATE OF ARIZONA 7 IN AND FOR THE COUNTY OF COCONINO 8 STATE OF ARIZONA, Case No.: CR2021-00508 9 Plaintiff, DEFENDANT’S MOTION TO 10 v. SUPPRESS EVIDENCE OBTAINED THROUGH EXECUTION OF 11 JOSEPH MARTIN MCGHEE, SEARCH WARRANT 12 Defendant. (Request for Oral Argument) 13 (Assigned to Hon. Dan Slayton, Div II) 14 15 16 Defendant, pursuant to Ariz.R.Crim.P. 16.2, moves the Court to exclude all 17 evidence obtained through the search warrant executed Flagstaff Police Detective Ryan 18 Forsman on or about June 7, 2021 due to the clearly unlawful conduct of Mr. Forsman in 19 securing this warrant. 20 As set forth in the accompanying Memorandum of Points and Authorities, 21 Detective Ryan Forsman deliberately fabricated material evidence which he then used as 22 the basis for “probable cause” in his affidavit the search warrant. The information 23 obtained through the execution of this warrant was then used to establish “probable 24 cause” to arrest Defendant for stalking. 25 Because the unlawful actions by Detective Forsman violated Defendant’s rights to 26 be free from unreasonable searches under the United States and Arizona Constitutions, 1 the evidence obtained through this search warrant must therefore be excluded. 2 I. FACTUAL BACKGROUND 3 Defendant and the alleged victim, Dara Rabin, share a child-in-common, Silas 4 McGhee, born February 14, 2015. 5 Around July of 2020 Division VI of the Coconino County Superior Court entered 6 an order as to a change in parenting time and custody exchange location as to Defendant 7 and Ms. Rabin, with regard Silas, who was five years-old at the time. In this order the 8 Court increased Defendant’s parenting time and ordered that all custody exchanges were 9 to occur in the parking lot of the YMCA on Turquoise Drive, in Flagstaff. 10 On or about August 6, 2020 Ms. Rabin made a report to FPD after allegedly 11 finding a GPS tracking device in Silas’ stuffed toy after Defendant dropped off the child 12 with Ms. Rabin in the parking lot of the YMCA for a custody exchange. In this report 13 Ms. Rabin alleged that Defendant placed the device into the child’s toy, but did not allege 14 that this conduct caused her any fear for her safety or the safety of any other person, 15 related to her allegedly finding this device. A FPD officer thereafter contacted Defendant 16 by phone to ask him about this device, whereupon Defendant told the officer he had no 17 comment. 18 From on or about August 11, 2020 – approximately one week after Ms. Rabin 19 allegedly found the GPS device in Silas’ stuffed toy – and lasting until June 2, 2021, Ms. 20 Rabin and Defendant conducted twice-weekly -- Thursdays at 10:00 AM and Saturdays 21 at 7:00 AM1 -- custody exchanges in the parking lot of the YMCA. During none of these 22 exchanges did Ms. Rabin request that FPD or any other law enforcement be present 23 for a civil standby, and at none of these exchanges were any police officers present. 24 On February 11, 2021 Ms. Rabin allegedly found a GPS device lying in the snow 25 1 26 The YMCA has been closed on weekends since around April of 2020 due to the Covid-19 pandemic. 2 1 on a remote forest service road outside of Kendrick Park in unincorporated Coconino 2 County. She reported this to the Coconino County Sheriff’s Department (“CCSO”) and 3 told the deputy who took the report that she believed that Defendant had placed the 4 device on her car. At no time did she allege to the report-taker that she felt any fear for 5 her safety or the safety of any other person, related to her allegedly finding this device. 6 Thereafter, the case was transferred to FPD for investigation. 7 On or about March 13, 2021 Ms. Rabin sent an email to follow-up with FPD on 8 her report regarding the GPS device she allegedly found on February 11, 2021 and which 9 she alleged had been placed on her car by Defendant. In this email she does not allege 10 any fear for her safety or the safety of any other person, related to her allegedly finding 11 this device. 12 On or about May 12, 2021 Ms. Rabin was interviewed by Forsman by telephone 13 regarding the February 11, 2021 report she made as to the GPS device she allegedly 14 found in Kendrick Park, and which she had alleged was placed on her car by Defendant. 15 At the start of this interview, Forsman read to Ms. Rabin the text of A.R.S. § 13- 16 2921 (harassment) and A.R.S. § 13-2923 (stalking) and stated to her that in order to 17 arrest Defendant for stalking, he would need to meet the elements of the crime. 18 Thereafter, Ms. Rabin, for the very first time ever, stated that she feared that Defendant 19 was going to kill her and Silas. Near the conclusion of this interview, Forsman told Ms. 20 Rabin that he would shortly be seeking a search warrant for the GPS device, and then told 21 Ms. Rabin not to tell Defendant about the stalking investigation. At no time during or 22 after this interview did Forsman urge Ms. Rabin to seek an Order of Protection, or to 23 have police offices perform a civil standby during custody exchanges. Neither did 24 Forsman notify DCS of Ms. Rabin’s alleged fear that Defendant was going to kill Silas. 25 On or about June 7, 2021, nearly a month after conducting his interview with Ms. 26 Rabin, Forsman applied for and was granted a search warrant by Division II of the 3 1 Coconino Superior Court, “in connection to a stalking investigation,” related to the GPS 2 device that Ms. Rabin alleged on February 11 was placed on her vehicle by Defendant. 3 This search warrant was executed on the GPS device manufacturer later that day. 4 On or about June 8, 2021 the GPS manufacturer provided the information to 5 Detective Forsman as requested in the search warrant. Mr. McGhee was arrested for 6 stalking by Detective Forsman that same day. 7 II. LEGAL ARGUMENT 8 A. EXCLUSION OF EVIDENCE OBTAINED THROUGH A SEARCH 9 WARRANT 10 Arizona Rules of Criminal Procedure set forth that when a Defendant seeks to 11 suppress evidence obtained pursuant to a search warrant, the State’s burden of proof of 12 the lawfulness of the acquisition of evidence arises only after the defendant alleges 13 specific circumstances and establishes a prima facie case supporting the suppression of 14 evidence at issue. Ariz.R.Crim.P. (b)(2)(C). There is a therefore a presumption in favor of 15 the validity of a search warrant and the defendant bears the burden of rebutting this 16 presumption. State v. Smith, 112 Ariz. 531, 544 P. 2d 2113 (1975). 17 B. DETECTIVE FORSMAN DELIBERATELY FABRICATED 18 EVIDENCE IN ORDER TO OBTAIN A SEARCH WARRANT 19 There is a clearly established constitutional due process right not to be subjected to 20 criminal charges on the basis of false evidence that was deliberately fabricated by the 21 government. Devereaux v. Abbey, 263 F.3d 1070, 1074-1075, 2001 U.S. App. LEXIS 22 19674, *7-8, 2001. A police officer who fabricates evidence and forwards that evidence 23 to a prosecutor (who then uses it against a defendant) is liable for the consequences of his 24 misconduct. See, e.g., Stemler v. City of Florence, 126 F.3d 856, 872 (6th Cir. 1997); 25 Ricciuti v. N.Y.C. Transit Authority, 124 F.3d 123, 130 (2d Cir. 1997); Jones, 856 F.2d at 26 993-94. 4 1 In order to support a deliberate-fabrication-of-evidence claim, a plaintiff must, at a 2 minimum, point to evidence that supports at least one of the following two propositions: 3 (1) the police continued their investigation of the plaintiff despite the fact that they knew 4 or should have known that he was innocent; or (2) the police used investigative 5 techniques that were so coercive and abusive that they knew or should have known that 6 those techniques would yield false information. Id. A determination of “probable cause” 7 based on fabricated evidence therefore presents a cognizable Fourth Amendment claim 8 even if such determination is made, or later affirmed, by a judge or grand jury. Manuel v. 9 City of Joliet, 137 S. Ct. 911 (2017). 10 Detective Forsman fabricated material evidence. This is patently obvious in that 11 the alleged victim, in spite of her multiple prior contacts with officers investigating her 12 GPS stalking allegation, never once articulated any fear of Defendant, any fear for her 13 safety, or any fear for the safety of any others. It was not until she was interviewed by 14 Forsman on or about May 12, 2021, where he began the interview by reading her the 15 text of the stalking statute and explicitly informed her that she needed to allege fear for 16 her safety in order for Defendant to be arrested,2 that Ms. Rabin ever articulated any 17 fear as to Defendant. Prior to this interview, the alleged victim had three separate 18 contacts with Flagstaff Police officers related to this matter and not once had alleged, 19 even implicitly, that she feared for her safety or anyone else’s as to Defendant. Detective 20 Forsman was well-aware of this fact, having reviewed the case file immediately prior to 21 22 2 Flagstaff Police Department Policy 333 – stalking investigations – sets forth that 23 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, 24 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 25 exactly what he or she needs to say in order to satisfy a necessary element of the 26 stalking statute especially in the complete absence of any previous statements made by the alleged victim as to his or her state of mind. 5 1 his telephone interview with Ms. Rabin. He also unquestionably, as a Flagstaff Police 2 detective, knew that without being able to allege the crucial element of fear by Ms. 3 Rabin he would not be able to obtain a search warrant for the GPS device and that the 4 stalking case against Defendant would have to be closed because the alleged conduct 5 by Defendant constituting the “surveillance element” of stalking had already ceased 6 more than six months prior. 7 Detective Forsman knowingly and intentionally provided instruction to Ms. Rabin 8 as to exactly what she needed to allege regarding her mental state during the interview in 9 order for him to obtain a search warrant for the GPS device. It was not until the moments 10 immediately following Forsman’s reading of the stalking statute to Ms. Rabin that she 11 first alleged any fear related to the alleged GPS surveillance. 12 Detective Forsman therefore fabricated the material evidence which was used to 13 obtain the search warrant. This violated Defendant’s right to be free from unreasonable 14 searches under the Fourth Amendment to the United States Constitution. 15 C. THE RESULTS OF THE SEARCH WARRANT MUST BE 16 SUPPRESSED. 17 It is well-settled that a defendant may challenge a warrant by challenging the 18 truthfulness of statements therein. Where a defendant (1) “makes a substantial 19 preliminary showing that a false statement knowingly and intentionally, or with reckless 20 disregard of the truth, was included by the affiant in the warrant affidavit,” and (2) 21 demonstrates that “the allegedly false statement is necessary to the finding of probable 22 cause, the Fourth Amendment requires that a hearing be held at the defendant’s request.” 23 Franks v. Delaware, 438 U.S. 154, 155-56 (1978) (“Franks”). To obtain a Franks 24 hearing, the defendant need not demonstrate “clear proof” of deception; the question of 25 proof is “reserved for the evidentiary hearing.” United States v. Stanert, 762 F.2d 775, 26 781 (9th Cir. 1985) (citing United States v. Chesher, 678 F.2d 1353, 1362 (9th Cir. 6 1 1982)). 2 Proof that an affiant entertains serious doubts concerning the affidavit’s truth can 3 be proven by obvious circumstances that impeach the credibility of the information in the 4 affidavit. Here, the affidavit can be clearly shown to contain a knowing, intentional, or 5 reckless falsehood: That the alleged victim, Dara Rabin, reasonably feared death or the 6 death of another because of the alleged GPS surveillance by Defendant which had 7 occurred more than six months prior. 8 1. WITH THE FALSE STATEMENTS CORRECTED, THE 9 AFFIDAVIT DOES NOT SUPPORT A FINDING OF PROBABLE 10 CAUSE. 11 Without Forsman’s statement in the affidavit that Ms. Rabin was in fear for her 12 life over the alleged surveillance by Defendant, which Detective Forsman in fact 13 manufactured during his interview of her, what is left of the affidavit? (1) A GPS device 14 allegedly found by Ms. Rabin in Silas’ stuffed animal3 August of 2020; and (2) a GPS 15 device allegedly found by Ms. Rabin on a dirt road in unincorporated Coconino County. 16 Neither of these conditions, either separately or together, can in any manner 17 support a finding of probable cause that the crime of stalking had occurred. Stalking 18 necessarily requires an element of fear of death, or significant mental suffering or 19 distress. See, e.g. A.R.S. § 13-2923(A)(1) (emotional distress), (A)(2) (fear of death). 20 Until Detective Forsman’s leading interview of her, Ms. Rabin had never alleged any fear 21 of Defendant related to this alleged GPS surveillance, in spite of the fact that she had 22 spoken with police three prior times over this. 23 Defendant has therefore made a “substantial preliminary showing” that Forsman’s 24 affidavit contains deliberate false statements. With the false statements corrected, the 25 3 26 A.R.S. § 13-2923(D)(1)(b) explicitly exempts GPS surveillance of a minor child by the child’s parent or guardian. 7 1 affidavit does not provide probable cause to suspect Mr. McGhee of any criminal 2 activity. Therefore, he is entitled to a Franks hearing. 3 III. CONCLUSION 4 For the reasons argued above, this court should suppress all evidence seized as a 5 result of the June 7, 2021 search warrant and there execution thereof. 6 7 Respectfully submitted, 8 /s/ Joseph McGhee 9 Joseph Martin McGhee P.O. Box 91 10 Flagstaff, Arizona 86002 Defendant, in Pro per 11 12 The foregoing filed, and served electronically, via EFileAZ, and a COPY 13 via email to: 14 Ammon Barker 15 Deputy Coconino County Attorney [email protected] 16 17 Sandra Klotz Legal Assistant to Prosecutor 18 [email protected] 19 Carrie Faultner 20 Division II Judicial Assistant [email protected] 21 22 23 24 25 26 8