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Judicial Watch • Bill v Brewer 02613

Bill v Brewer 02613

Bill v Brewer 02613

Page 1: Bill  v Brewer 02613

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Number of Pages:25

Date Created:December 6, 2012

Date Uploaded to the Library:December 08, 2015

Tags:malpass, drenth, Redacted1, hanania, polombo, Brewer, sergeant, police, Phoenix, Plaintiffs, search, defendants, defendant, filed, plaintiff, document, department


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Case 2:12-cv-02613-LOA Document Filed 12/07/12 Page
Attorney for Plaintiffs
UNITED STATES DISTRICT COURT
FOR THE DISTRICT ARIZONA
DANIEL BILL; BRYAN HANANIA;
and MICHAEL MALPASS,
Case No.
COMPLAINT
Plaintiffs,
(Fourth Amendment)
(Jury Trial Requested)
WARREN BREWER; HEATHER
POLOMBO; JOHN DOES I-V; Requested)
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.
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Case 2:12-cv-02613-LOA Document Filed 12/07/12 Page
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 Department
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 Department Violent Crimes Bureau.
Defendant BREWER being sued his individual capacity, albeit for acting under color
state law.
-2-
Case 2:12-cv-02613-LOA Document Filed 12/07/12 Page
Defendant HEATHER POLOMBO Detective the Phoenix Police
Department and employee the City Phoenix. Defendant POLOMBO was and
assigned the Homicide Unit the Phoenix Police Department 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 Drenth right ankle. Sergeant Drenth handcuffs, flashlight, and
cellular telephone lay the ground near his body.
11.
Shortly after Sergeant Drenth 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
-3-
Case 2:12-cv-02613-LOA Document Filed 12/07/12 Page
Police officers and security personnel converged the area where Sergeant Drenth 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
MALPASS 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 Drenth 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
-4-
Case 2:12-cv-02613-LOA Document Filed 12/07/12 Page
where Sergeant Drenth 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
Drenth patrol car was parked approximately the center the lot. The driver side door
was open, and the keys were the ignition. Sergeant Drenth 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 officer patrol car. point were Plaintiffs BILL
and HANANIA ever closer than fifteen (15) feet from Sergeant Drenth body. They never
touched were closer than fifteen (15) feet from the shotgun that lay across Sergeant
Drenth chest the secondary weapon that lay near Sergeant Drenth ankle. Nor did they
ever touch enter Sergeant Drenth patrol car.
18.
Plaintiff MALPASS did not enter the lot. was never closer than thirty (30)
feet from Sergeant Drenth body. never touched was closer than thirty (30) feet from
the shotgun the secondary weapon found with Sergeant Drenth body, and never
touched entered Sergeant Drenth patrol car.
19.
The temporary command center had been established parking lot the
east side 18th Avenue, opposite the dirt lot which Sergeant Drenth body had been
-5-
Case 2:12-cv-02613-LOA Document Filed 12/07/12 Page
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 Drenth 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 Drenth 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
-6-
Case 2:12-cv-02613-LOA Document Filed 12/07/12 Page
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
Drenth 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 HANANIA 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 Drenth 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 Zielinski report was readily available
-7-
Case 2:12-cv-02613-LOA Document Filed 12/07/12 Page
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 Zielinski 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 Drenth patrol vehicle and partial unknown male DNA was found
Sergeant Drenth 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,
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Case 2:12-cv-02613-LOA Document Filed 12/07/12 Page
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 Drenth patrol vehicle and weapons,
much less suspected any criminal wrongdoing Sergeant Drenth 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.
-9-
Case 2:12-cv-02613-LOA Document Filed 12/07/12 Page
33. about April 18, 2011, Defendant POLOMBO met with Plaintiffs BILL,
HANANIA, and MALPASS the Special Assignment Unit 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. Drenth 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
-10-
Case 2:12-cv-02613-LOA Document Filed 12/07/12 Page
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 Drenth 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 Drenth 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. 13-
3905, authorizing the temporary detention Plaintiffs BILL, HANANIA, and MALPASS
and the other search team members for purposes taking samples their DNA.
-11-
Case 2:12-cv-02613-LOA Document Filed 12/07/12 Page
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.
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Case 2:12-cv-02613-LOA Document Filed 12/07/12 Page
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 Drenth 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.
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Case 2:12-cv-02613-LOA Document Filed 12/07/12 Page
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 Drenth 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
-14-
Case 2:12-cv-02613-LOA Document Filed 12/07/12 Page
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
-15-
Case 2:12-cv-02613-LOA Document Filed 12/07/12 Page
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 PPD 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 PPD 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 PPD 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.
-16-
Case 2:12-cv-02613-LOA Document Filed 12/07/12 Page
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 PPD 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 Drenth patrol vehicle some time
before Sergeant Drenth death.
-17-
Case 2:12-cv-02613-LOA Document Filed 12/07/12 Page
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 PPD 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 PPD Property Management Bureau. The tip portions the buccal swabs,
which contain the DNA samples, are impounded freezer the PPD 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.
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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.
-19-
Case 2:12-cv-02613-LOA Document Filed 12/07/12 Page
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
-20-
Case 2:12-cv-02613-LOA Document Filed 12/07/12 Page
(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
-21-
Case 2:12-cv-02613-LOA Document Filed 12/07/12 Page
Case 2:12-cv-02613-LOA Document Filed 12/07/12 Page
Case 2:12-cv-02613-LOA Document Filed 12/07/12 Page
Case 2:12-cv-02613-LOA Document Filed 12/07/12 Page