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Judicial Watch • Stamped Complaint for DNA Matter

Stamped Complaint for DNA Matter

Stamped Complaint for DNA Matter

Page 1: Stamped Complaint for DNA Matter

Category:General

Number of Pages:25

Date Created:December 6, 2012

Date Uploaded to the Library:February 20, 2014

Tags:malpass, drenth, hanania, polombo, Brewer, sergeant, police, bureau, Phoenix, search, Plaintiffs, defendants, defendant, plaintiff, department, court, EPA, IRS, ICE, CIA


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Robert Kavanagh, State Bar Number 013573 Law Office Robert Kavanagh South Kyrene Road, Suite Chandler, 85226 Telephone: 480-831-3040 Facsimile: 480-456-0920 Email: robertkavanagh@azbar.org 
Attorney for Plaintiffs 
UNITED STATES DISTRICT COURT FOR THE DISTRICT ARIZONA 
DANIEL BILL; BRYAN HANANIA;  Case No.  
and MICHAEL MALPASS,  
COMPLAINT  
Plaintiffs,  (Fourth Amendment)  
WARREN BREWER; HEATHER  (Jury Trial Requested)  
POLOMBO; JOHN DOES I-V;  
and JANE DOES I-V,  
Defendants.  

Plaintiffs DANIEL BILL, BRYAN HANANIA, and MICHAEL MALPASS, counsel, hereby sue Defendants WARREN BREWER, HEATHER POLOMBO, JOHN DOES I-V, and JANE DOES I-V for violation Plaintiffs rights under the Fourth and Fourteenth Amendments the Constitution the United States. Plaintiffs bring this action pursuant U.S.C.  1983 and seek declaratory and injunctive relief and nominal damages.  
JURISDICTION AND VENUE The Court has jurisdiction over this action pursuant U.S.C.  1331. Venue this Court proper pursuant U.S.C.  1391(b) because substantial part the events omissions giving rise the claim issue occurred this judicial district and Defendants reside within this judicial district. 

PARTIES 
Plaintiff DANIEL BILL police officer the City Phoenix Police Department and employee the City Phoenix. Plaintiff BILL was and assigned the unit canine handler. 
Plaintiff BRYAN HANANIA police officer the City Phoenix Police Department and employee the City Phoenix.  Plaintiff HANANIA was and assigned the unit canine handler 
Plaintiff MICHAEL MALPASS police officer the City Phoenix Police Department and employee the City Phoenix.  Plaintiff MALPASS was and assigned the Special Assignment Unit, which the Phoenix Police Departments SWAT team. 
Defendant WARREN BREWER Detective the Phoenix Police Department and employee the City Phoenix.  Defendant BREWER was and assigned the Homicide Unit the Phoenix Police Departments Violent Crimes Bureau.  Defendant BREWER being sued his individual capacity, albeit for acting under color state law. 
Defendant HEATHER POLOMBO Detective the Phoenix Police Department and employee the City Phoenix.  Defendant POLOMBO was and assigned the Homicide Unit the Phoenix Police Departments Violent Crimes Bureau.  Defendant POLOMBO being sued his individual capacity, albeit for acting under color state law. 
Defendants JOHN DOES I-V and JANE DOES I-V, named fictitiously herein, are members the Phoenix Police Department and employees the City Phoenix. Defendants JOHN DOES I-V and JANE DOES I-V were personally involved engaged the same similar conduct Defendants BREWER and POLOMBO and/or caused, directed, ordered Defendants BREWER and POLOMBO undertake the conduct described herein. 

FACTUAL BACKGROUND October 18, 2010, Sergeant Sean Drenth the Phoenix Police Department (PPD) was found dead outside his patrol vehicle empty dirt lot near 1825  Jackson Street Phoenix, Arizona, just south the State Capitol. 

10. 
Sergeant Drenth had been shot the head. shotgun lay across his chest.  The muzzle the weapon pointed towards his chin. secondary weapon was lying the ground next Sergeant Drenths right ankle.  Sergeant Drenths handcuffs, flashlight, and cellular telephone lay the ground near his body. 

11. 
Shortly after Sergeant Drenths body was discovered, over 300 hundred persons  including PPD officers (including the Chief Police), City Phoenix fire fighters, other City Phoenix personnel (including the Mayor), and Arizona State Capitol 

Police officers and security personnel  converged the area where Sergeant Drenths body had been found. 

12. 
Plaintiffs BILL and HANANIA were restaurant central Phoenix with three other PPD officers when, approximately 10:54 p.m., they received emergency radio broadcast for officer down.  The officers had been the restaurant location for least thirty (30) minutes prior receiving the emergency broadcast. The locators the officers portable radios and the mobile digital communicators their vehicles confirmed their location, did their fellow officers. 

13. 
Plaintiff MALPASS was coffee shop 32nd Street and Camelback Street Phoenix with least one other PPD officer assigned the Special Assignment Unit when received the officer down emergency broadcast.  Plaintiff MALPASS and the other officer had been that location for least thirty (30) minutes prior receiving the emergency broadcast. Like Plaintiffs BILL and HANANIA, the locator Plaintiff MALPASSs portable radio and the mobile digital communicator his vehicle confirmed his location, did his fellow officers.  

14. 
Plaintiff BILL and HANANIA and the three other PPD officers the restaurant responded the emergency broadcast immediately and drove the scene separate vehicles.  They parked their vehicles 17th Avenue and walked over the lot the west side 18th Avenue where Sergeant Drenths body had been found.  

15. 
Plaintiff MALPASS and least one other PPD officer the coffee shop also responded the emergency broadcast immediately and drove the scene separate vehicles. Plaintiff MALPASS parked his vehicle public parking area north the lot 

where Sergeant Drenths body had been found, walked the area where temporary command center had been established, and waited for his assignment. 

16. 
The triangular-shaped dirt lot was surrounded two sides tall chain link fence. railroad track curved along the southern side the lot, the opposite side the fence.  The east side the lot was open, allowing access 18th Avenue.  Sergeant Drenths patrol car was parked approximately the center the lot. The drivers side door was open, and the keys were the ignition. Sergeant Drenths body lay the ground, beyond the patrol car, near tree the northwest corner the lot.  Aerial photographs the lot and the neighborhood surrounding the lot are attached hereto Exhibits and respectively. 

17. 
Plaintiffs BILL and and HANANIA entered the lot from 18th Avenue, but did not proceed beyond the deceased officers patrol car. point were Plaintiffs BILL and HANANIA ever closer than fifteen (15) feet from Sergeant Drenths body.  They never touched were closer than fifteen (15) feet from the shotgun that lay across Sergeant Drenths chest the secondary weapon that lay near Sergeant Drenths ankle. Nor did they ever touch enter Sergeant Drenths patrol car.  

18. 
Plaintiff MALPASS did not enter the lot. was never closer than thirty (30) feet from Sergeant Drenths body. never touched was closer than thirty (30) feet from the shotgun the secondary weapon found with Sergeant Drenths body, and never touched entered Sergeant Drenths patrol car. 

19. 
The temporary command center had been established parking lot the east side 18th Avenue, opposite the dirt lot which Sergeant Drenths body had been 

found. the temporary command center, two canine search teams were organized conduct grid search the surrounding area. accordance with usual PPD practice, each search team was assigned two canine handlers and their respective canine partners, well several Special Assignment Unit members provide support.  One search team consisted Plaintiff BILL and second canine handler, Officer Mary Zielinski, their respective canine partners, Plaintiff MALPASS, and four other Special Assignment Unit members.  The second search team consisted Plaintiff HANANIA, his canine partner, another canine handler and his canine partner, and four Special Assignment Unit members.  Each search team was assigned responsibility for searching particular area.  

20. 
Just the search was commencing, Sergeant Drenths service weapon was spotted near the railroad tracks south the lot, the opposite side the chain link fence. officer was posted near the weapon.  

21. 
Beginning approximately 11:30 p.m., the search team that included Plaintiff HANANIA searched the area the opposite side the chain link fence bordering the lot between 18th and 19th Avenues north Jefferson Street. order search the railroad tracks, was necessary for the team cut and roll back portion the chain link fence that bordered the lot. the team worked its way west along the railroad tracks 19th Avenue, they observed Sergeant Drenths service weapon lying the north side the tracks. The team moved the south side the tracks order avoid disturbing the area near the service weapon, until they reached 19th Avenue.  After searching along the railroad tracks, the team then searched the area between 18th and 19th Avenues from Lincoln Street south Grant Street and the railroad tracks between 19th and 
21st Avenues. The last area searched the team was the area between 20th and 21st Avenues from Jefferson Street south the railroad tracks. time during the search was Plaintiff HANANIA the other members the search team anywhere near Sergeant 
Drenths body his patrol vehicle weapons.  
22. Shortly thereafter, Plaintiff HANANIA prepared report detailing his actions and the actions the other members his search team, did another member the team, Special Assignment Unit Officer David Haas. all relevant times, both reports were readily available Defendants BREWER, POLOMBO, JOHN DOES I-V, and JANE DOES I-V, and, information and belief, Defendants BREWER, POLOMBO, JOHN DOES I-V, and JANE DOES I-V were aware and reviewed both Plaintiff HANANIAs report and Officer Hass report. 
23. The search team that included Plaintiffs BILL and MALPASS searched the area between 17th and 18th Avenues from Jefferson Street south Buchanan Street, including the railroad tracks.  The team then searched the area between 17th and 18th Avenues from Lincoln Street south Grant Street.  The last area searched the team was the area between 19th and 21st Avenues from Jefferson Street south the railroad tracks. time during their search were Plaintiffs BILL and MALPASS the other members their search team anywhere near Sergeant Drenths body his patrol vehicle weapons. 
24. Shortly thereafter, Officer Zielinski prepared report detailing her actions and the actions the other members her search team, including Plaintiffs BILL and 
MALPASS. all relevant times, Officer Zielinskis report was readily available 
Defendants BREWER, POLOMBO, JOHN DOES I-V, and JANE DOES I-V, and, information and belief, Defendants BREWER, POLOMBO, JOHN DOES I-V, and JANE DOES I-V were aware and reviewed Officer Zielinskis report. 
25. 
The PPD subsequently commenced homicide investigation into the death Sergeant Drenth.  Defendant BREWER was the lead officer Case Agent charge the investigation.  Defendant POLOMBO assisted Defendant BREWER Case Assist officer. 

26. 
During the course the investigation, full unknown male DNA profile was found Sergeant Drenths patrol vehicle and partial unknown male DNA was found Sergeant Drenths weapons.  

27. list all PPD officers who had responded the officer down emergency radio broadcast the night October 18, 2010 was subsequently compiled, and Defendants BREWER and POLOMBO began asking these officers voluntarily provide DNA samples for exclusionary purposes. 

28. information and belief, about December 20, 2010, Defendants JOHN DOES I-V and JANE DOES I-V assigned Defendant POLOMBO the task collecting DNA samples from list PPD officers, including Plaintiffs BILL, HANANIA, and MALPASS and the other members their respective search teams. 

29. 
Beginning about December 27, 2010 and over the next several months, Defendant POLOMBO communicated with Plaintiffs BILL, HANANIA, and MALPASS and the other members their respective search teams about obtaining DNA samples for what Defendant POLOMBO told the officers were exclusionary purposes.  Plaintiffs BILL, 

HANANIA, and MALPASS agreed principle provide the samples the condition that they receive satisfactory assurances about the use and disposition the samples and any subsequent analysis the samples. 

30. 
During the course these communications, Plaintiffs BILL, HANANIA, and MALPASS each informed Defendant POLOMBO their specific locations and activities the night October 18, 2010. Consequently, Defendant POLOMBO knew had substantial reason know that Plaintiffs BILL, HANANIA, and MALPASS could not have been the source(s) any DNA found Sergeant Drenths patrol vehicle and weapons, much less suspected any criminal wrongdoing Sergeant Drenths death. information and belief, Defendant POLOMBO shared this information with Defendants BREWER, JOHN DOES I-V, and JANE DOES I-V. 

31. April 14, 2011, Defendant POLOMBO sent email Defendant 
BREWER and several other officers within the Homicide Unit, stating, pertinent part, 
follows: have memo provide each employee who refused provide DNA. have been requested deliver memo each employee asap and obtain the swab they consent.  This needs done preferably today tomorrow, but the beginning next week the latest have meeting update the responses (emphasis added). 
32. information and belief, the memorandum referenced Defendant BREWER her April 14, 2011 email was prepared personnel the PPD Laboratory Services Bureau the request Defendants JOHN DOES I-V and JANE DOES I-V disseminated the employees from whom DNA samples had been requested. 

33. about April 18, 2011, Defendant POLOMBO met with Plaintiffs BILL, HANANIA, and MALPASS the Special Assignment Units offices. Also present the meeting were the other search team members from whom DNA samples had been requested. During the course the meeting, Defendant POLOMBO provided Plaintiffs BILL, HANANIA, and MALPASS and the other search team members with memorandum, PPD letterhead, entitled DNA Collection Fact Sheet  Drenth Investigation. The memorandum stated, pertinent part, follows: 

	 DNA samples have been recovered from the scene that have not been identified 
	 There were over 100 officers/detective/fire fighters that entered the scene near Sgt. Drenths vehicle and body. 
 date 115 DNA samples have been obtained and compared this case including officers, detectives, firefighters, mechanics, civilians and lab personnel 
	 DNA samples from all known people the scene are needed eliminate them contributors.  You are being requested provide sample your DNA based information that indicates you were the scene.  DNA samples will obtained buccal swabs  DNA samples will processed the lab accordance with established policy and procedure  DNA samples will retained the lab accordance with ARS regulations (ARS 13-[4221])  The results the DNA testing will documented the report.  These results are discoverable accordance with Arizona law 
34. 
During the course the April 18, 2011 meeting, Plaintiffs BILL, HANANIA, and MALPASS again informed Defendant POLOMBO their specific locations and activities the night Sergeant Drenths death. information and belief, Defendant POLOMBO again shared this information with Defendants BREWER, JOHN DOES I-V, and JANE DOES I-V. 

35. 
Also during the course the April 18, 2011 meeting, Defendant POLOMBO told Plaintiffs BILL, HANANIA, and MALPASS and the other search members that she knew that the officers were not involved Sergeant Drenths death because the locators their portable radios and the mobile digital communicators their vehicles confirmed their locations the night October 18, 2010. 

36. 
Subsequent the April 18, 2011 meeting, Plaintiffs BILL, HANANIA, and MALPASS retained counsel attempt negotiate compromise with the PPD. this end, counsel for Plaintiffs BILL, HANANIA, and MALPASS engaged several discussions with Violent Crimes Bureau Commander David Faulkner and PPD Legal Unit Lieutenant/Attorney Jennifer LaRoque about negotiated resolution. 

37. information and belief, while these negotiations were continuing, Defendants JOHN DOES I-V and JANE DOES I-V directed Defendants BREWER and POLOMBO apply the Superior Court for the County Maricopa, State Arizona (Maricopa County Superior Court) for detention orders, pursuant Ariz. Rev. Stat.  133905, authorizing the temporary detention Plaintiffs BILL, HANANIA, and MALPASS and the other search team members for purposes taking samples their DNA.  

38. about August 2011, Defendant BREWER applied the Maricopa County Superior Court for the detention orders for Plaintiffs BILL, HANANIA, and MALPASS and the other search team members. 

39. support these applications, Defendant BREWER executed five (5) separate affidavits (the Brewer Affidavits) that were identical but for the names and dates birth Plaintiffs BILL, HANANIA, and MALPASS and the other search team members. The Brewer Affidavits stated, pertinent part, follows: 

Your Affiant, Detective Warren Brewer, Peace Officer for the City Phoenix the State Arizona, being first duly sworn, upon oath, deposes and says that: engaged, within the scope his authority, the investigation alleged criminal offense punishable least one year the State Prison; There probable cause believe that about the 18th day October 2010, the County Maricopa, State Arizona, the felony Homicide violation A.R.S.  13-1105A1 was committed suspect/s unknown.  III The procurement saliva sample mouth swab from [names and dates birth Plaintiffs BILL, HANANIA, and MALPASS and the other search team members] may contribute the identification the individual who committed the felony offense described above; Such evidence cannot obtained our Affiant from the Law Enforcement Agency employing his (sic) from the Criminal Identification Division the Arizona Department Public Safety. 
Your Affiant further deposes and says that: October 18th, 2010 approximately 2255 hours, Phoenix Police Sergeant Sean Drenth was found deceased from single gunshot wound his chin area. was lying outside his patrol vehicle, dirt lot 1825 Jackson Street. shotgun was lying his chest, his duty weapon was found the opposite side fence and his secondary weapon was lying the ground next his right ankle [P]artial unknown male DNA found the weapons, 
and full unknown male profile collected from Sergeant Drenths patrol 
vehicle indicate this was homicide 
Approximately 300 City Phoenix Police Officers responded the call Capitol Police regarding injured City Phoenix Officer.  Approximately Phoenix Police Officers entered the scene where Sergeant Drenth was found. attempts identify the unknown DNA profile/s, investigators have collected buccal swabs from all but five the Phoenix Police Personnel that were inside the scene.  All Phoenix Fire Personnel and Capitol Police Personnel that entered the scene have voluntarily provided buccal swabs.  
Five the approximately Phoenix Police Officers that were inside the scene refused provide buccal swabs.  All five officers had the potential inadvertently deposit their DNA the collected evidence. The five officers were earlier contacted Investigators and were asked voluntarily provide buccal swabs for elimination purposes.  The five officers are Brian (sic) Hanania #6581, Patrick Clinton #7113, Daniel Bill #7540, Michael Malpass #6532 and Brian Milhone #6471 
This investigation has lead investigators believe that least two possible scenarios could have taken place.  The possible scenarios are the scene was homicide staged look like suicide suicide staged look like homicide 
Your affiant requests the issuance this court order allow investigators obtain saliva sample from [name birth Plaintiffs BILL, HANANIA, and MALPASS and the other search team members] analyzed for DNA and compared other evidence this investigation. 
40. information and belief, Defendant POLOMBO assisted the preparation 
and submission the applications for the detention orders, including the Brewer Affidavits, 
and read and was familiar with the contents the Brewer Affidavits.  
41. 
The applications and the Brewer Affidavits were completely devoid any fact establishing individualized suspicion that Plaintiffs BILL, HANANIA, MALPASS had committed criminal wrongdoing were otherwise responsible for the death Sergeant Drenth. 

42. addition, the time that Defendants BREWER and POLOMBO prepared and submitted the Brewer Affidavits the Maricopa County Superior Court, Defendants BREWER and POLOMBO knew had substantial reason know that the following assertions contained the Brewer Affidavits were false:  

	 that [t]he procurement saliva sample mouth swab from [Plaintiffs 
BILL, HANANIA, and MALPASS and the other search team members] may
 contribute the identification the individual who committed the felony
 offense described above;
	
	 that [a]pproximately Phoenix Police Officers entered the scene where 
Sergeant Drenth was found; and
	 that [a]ll five officers had the potential inadvertently deposit their DNA 
the collected evidence.
	
43. 
Moreover, Defendants BREWER and POLOMBO omitted from the applications and the Brewer Affidavits facts well known Defendants BREWER and POLOMBO establishing the locations and activities Plaintiffs BILL, HANANIA, and MALPASS and the other search team members the night October 18, 2010, including the fact that none the officers were sufficient proximity Sergeant Drenths body his patrol vehicle weapons have deposited their DNA either the vehicle any the weapons. 

44. about August 2010, judge the Maricopa County Superior Court, the Hon. Douglas Rayes, issued the detention orders requested Defendants BREWER 

and POLOMBO.  Like the affidavits executed Defendant BREWER, the orders were 
identical but for the names and dates birth Plaintiffs BILL, HANANIA, and MALPASS 
and the two other members the search teams.  The detention orders stated, pertinent 
part, follows: THE FINDING THIS COURT: 
That there probable cause believe that the crime Homicide had been committed, such offense being felony punishable more than one year the state prison; 
The procurement saliva sample mouth swab [names and dates birth Plaintiffs BILL, HANANIA, and MALPASS and the other search team members] may contribute the identification the individual who committed the offense; 
III 
That such evidence cannot obtained Detective Warren Brewer #6828 from either the Phoenix Police Department the Criminal Identification Division the Arizona Department Public Safety; HEREBY ORDERED: 
That [name and badge numbers Defendants BREWER and POLOMBO], Detective Darrell Branch #5986, Detective Brian Hansen #6250 the City Phoenix Police Department authorized effectuate this order; 
That saliva sample mouth swab from the person [names and dates birth Plaintiffs BILL, HANANIA, and MALPASS and the other search team members] obtained; 
III That this evidence obtained connection with the crime homicide; 
That this evidence used the identification exclusion [names and dates birth Plaintiffs BILL, HANANIA, and MALPASS and the other search team members] the perpetrator the offense listed herein. 
45. about August 15, 2011, Defendants BREWER and POLOMBO served Plaintiff BILL with the detention order and obtained buccal swab from him. Defendant BREWER and POLOMBO subsequently impounded the buccal swab evidence and provided the PPDs Laboratory Services Bureau for processing and analysis. 

46. about August 15, 2011, Defendant BREWER served Plaintiff MALPASS with the detention order and obtained buccal swab from him.  Defendants BREWER and POLOMBO subsequently impounded the buccal swab evidence and 

provided the PPDs Laboratory Services Bureau for processing and analysis.  
47. about August 17, 2011, Defendant BREWER served Plaintiff HANANIA with the detention order and obtained buccal swab from him.  Defendants BREWER and POLOMBO subsequently impounded the buccal swab evidence and 
provided the PPDs Laboratory Services Bureau for processing and analysis.  
48. 
Detention orders were served the other search team members and buccal swabs were obtained from them about August 15, 2011 and August 17, 2011. 

49. point did Plaintiffs BILL, HANANIA, and MALPASS consent the taking and subsequent processing and analysis their DNA. 

50. 
Also point did Defendants BREWER, POLOMBO, JOHN DOES I-V, JANE DOES I-V obtain search warrant for the DNA Plaintiffs BILL, HANANIA, and MALPASS. 

51. least two occasions, the PPD denied that the detention orders served Plaintiffs BILL, HANANIA, and MALPASS and the other search team members were search warrants that Plaintiffs BILL, HANANIA, and MALPASS and the other search team members were suspects the death Sergeant Drenth. 

52. Specifically, August 21, 2011, PPD spokesperson, Public Affairs Bureau 
Sergeant Trent Crump, responded follows inquiry from reporter about whether 
search warrants were served Plaintiffs BILL, HANANIA, and MALPASS and the other 
search team members and whether these officers were suspects the death Sergeant 
Drenth: 
No, this not true.  The fact the matter six1 court orders were served the last week so.  These are not search warrants and not require the same level cause. The six city employees involved, who are not all police officers, were critical scene areas and have refused provide exclusionary sample detectives after several attempts The Phoenix Police Department has said all along that suicide homicide are possibility 
53. addition, August 22, 2011, the PPD issued notice all PPD employees, through the PPDs Employee Notification System, again denying that the detention orders served Plaintiffs BILL, HANANIA, and MALPASS and the other search team members were search warrants: about August 2011, Defendant BREWER also applied for and obtained detention order for sixth person, mechanic employed the City Phoenix, who had serviced Sergeant Drenths patrol vehicle some time before Sergeant Drenths death. 
Within the last week, six city employees were served with court orders (not search warrants) obtain identifying characteristics (DNA) related the death investigation Sergeant Sean Drenth.  These court orders are based reasonable cause Members some media and other outlets may make claims these employees are considered suspects.  This not true.  These employees were determined within critical area within the scene and their DNA was collected strictly for comparative analysis Six employees exercised their constitutional right and refused provide their DNA, necessitating court order 
54. 
The PPDs Laboratory Services Bureau subsequently processed the buccal swaps taken from Plaintiffs BILL, HANANIA, and MALPASS, analyzed the DNA Plaintiffs BILL, HANANIA, and MALPASS extracted therefrom, and prepared reports the analysis.    

55. 
Defendants BREWER, POLOMBO, JOHN DOES I-V and JANE DOES I-V continue maintain control over the Laboratory Services Bureau reports. 

56. 
The buccal swabs used take DNA samples from Plaintiffs BILL, HANANIA, and MALPASS remain impounded the PPD, albeit each swab impounded two separate pieces.  The stick portions the buccal swabs are impounded evidence bags the PPDs Property Management Bureau.  The tip portions the buccal swabs, which contain the DNA samples, are impounded freezer the PPDs Laboratory Services Bureau. 

57. 
Defendants BREWER, POLOMBO, JOHN DOES I-V, and JANE DOES I-V continue maintain control over both the impounded stick and the tip portions the buccal swabs. 

58. information and belief, the DNA samples taken from Plaintiffs BILL, HANANIA, and MALPASS will retained the PPD for long fifty-five years, until 2066, pursuant Ariz. Rev. Stat. 13-4221. 

COUNT
 (Violation the Fourteenth Amendment  U.S.C.  1983)
 
59. Plaintiffs hereby reallege paragraphs 1-58 fully stated herein. 
60. Plaintiffs enjoy the right secure their persons against unreasonable searches and seizures, guaranteed the Fourth and Fourteenth Amendments the U.S. Constitution. 
61. The act taking buccal swab for purposes DNA analysis clearly and unquestionably constitutes search subject the protections the Fourth and Fourteenth Amendments the U.S. Constitution.  See, e.g., Friedman Boucher, 568 F.3d 1119, 1124 (9th Cir. 2009) (There question that the buccal swab constituted search under the Fourth Amendment.). 
62. 
Defendants BREWER, POLOMBO, JOHN DOES I-V, and JANE DOES I-V, acting within the course and scope their authority and under color state law, deprived Plaintiffs BILL, HANANIA, and MALPASS their rights under the U.S. Constitution subjecting them buccal swabs for purposes DNA analysis without obtaining search warrants, without probable cause, and without having non-law enforcement special need. 

63. addition, Defendants BREWER, POLOMBO, JOHN DOES I-V, and JANE DOES I-V, acting within the course and scope their authority and under color state law, deprived Plaintiffs BILL, HANANIA, and MALPASS their rights under the U.S. 

Constitution omitting material information from the Maricopa County Superior Court when seeking orders detention Plaintiffs BILL, HANANIA, and MALPASS for purposes taking samples their DNA. 

64. 
Defendants BREWER, POLOMBO, JOHN DOES I-V, and JANE DOES I-V, acting within the course and scope their authority and under color state law, continue deprive Plaintiffs BILL, HANANIA, and MALPASS their rights under the U.S. Constitution continuing retain samples DNA from Plaintiffs BILL, HANANIA, and MALPASS, well analyses and reports these samples, which were derived from the unlawful searches and seizures. 

65. 
Plaintiffs BILL, HANANIA, and MALPASS are being irreparably and substantially injured direct and proximate result the unlawful deprivation their constitutional rights Defendants BREWER, POLOMBO, JOHN DOES I-V, and JANE DOES I-V. 

66. Plaintiffs have adequate remedy law.
 WHEREFORE, Plaintiffs respectfully request that the Court:
 
(1) Declare the searches and seizures Plaintiffs DNA unlawful; 
(2) Enjoin Defendants from continuing maintain possession, custody, control Plaintiffs DNA samples and order Defendants expunge destroy the buccal swabs containing Plaintiffs DNA samples and any analyses and reports Plaintiffs DNA samples; 
(3) Award Plaintiffs nominal damages the amount one dollar ($1.00) each; 
(4) Award Plaintiffs reasonable attorneys fees and costs; and 
(5) Grant such other relief the Court may deem just and proper. 

DEMAND FOR JURY TRIAL 
Plaintiffs request trial jury all issues triable. 
RESPECTFULLY SUBMITTED this 7th day December, 2012. 
/s/ Robert Kavanagh Robert Kavanagh State Bar Number 013573 Law Office Robert Kavanagh South Kyrene Road, Suite Chandler, 85226 Telephone: 480-831-3040 Facsimile: 480-456-0920 Email: robertkavanagh@azbar.org 
Attorney for Plaintiffs Counsel: 
Paul Orfanedes Michael Bekesha JUDICIAL WATCH, INC. 425 Third Street, S.W., Suite 800 Washington,  20024 Telephone: (202) 646-5172 Facsimile:  (202) 646-5199



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