By Howard Fischer
Twitter: @azcapmedia

PHOENIX — A Tucson man will get a new chance to seek financial damages from the city for an illegal search of his east side home more than a decade ago.

In a unanimous decision Monday, a three-judge panel of the 9th Circuit Court of Appeals overturned a trial judge’s ruling that the police officers were entitled to qualified immunity in obtaining a search warrant of the home of Richard Brubaker.

The appellate judges said there was sufficient evidence for jurors, had they been allowed to hear the case, to conclude the Tucson police officers intended to mislead the judge who issued the search warrant. They also said there was evidence of recklessness, including an officer making false statements in the request for the affidavit and withholding certain information from the judge who issued the warrant.

In that same ruling, the appellate court said Brubaker is entitled to seek damages against Tucson police for trespass.

Court records show Brubaker’s problems arose when Michael Pelton, a Tucson police officer working a bicycle squad in the neighborhood of S. Wilmot and E. Golf Links roads, had been told through a tip line that there were burglaries and drug deals occurring within a two-block area.

He later came across a man who identified himself as Donald Deal. While Deal first said he was in the neighborhood looking for work, Pelton eventually searched Deal and found a crack pipe.

Deal later told police he was there to buy drugs. And while initially failing to identify a specific house, he later pointed to the one occupied by Brubaker.

That led to a search warrant. Police, finding no one home, broke into the house and threw in a “flashbang” stun grenade.

They found no drugs.

U.S. District Judge David Bury granted a motion by the city to dismiss the complaint of an illegal search. Bury concluded there was no evidence that either Pelton or Sgt. Jack Woolridge, who also worked the case, intentionally or recklessly mislead the judge who authorized the search.

“We disagree,” the appellate panel said in the unsigned opinion, saying there was evidence for a jury to believe otherwise. And the appellate court said there was plenty from which to pick.

It starts, they said, with Pelton making false statements in his telephonic request for the warrant implying police had received reports of drugs being sold at Brubaker’s address. Then there was the reliance on the single source, including their failure to uncover and disclose Deal’s extensive criminal history of lying to the police.

And they said the police failed to obtain “meaningful corroboration.”

The appellate court also reinstated the trespass claim Bury had dismissed.

“Because the jury could have reasonably concluded that defendants procured the search warrant through judicial deception, it similarly could have concluded that defendants’ entry onto Brubaker’s property was an unauthorized trespass,” the judges wrote.

In sending the case back for trial, the appellate court said Brubaker is entitled to seek compensation for everything from the physical damages to the premises to his emotional distress and his loss of the house during the search.

But what he cannot seek, the appellate court said, is any damages from the loss of the dozens of cats that police said they found in the home following their illegal entry.

Graham said his client was preparing to take the animals, who were in cages, to a property he owns in Tombstone.

Instead, they were seized by Pima County Animal Control after being called there by police.

According to Graham, his client was never convicted of any abuse charges. But he said most of the animals later died in county custody after Brubaker lacked the funds to fight the forfeiture.

As the appellate court sees it, it’s legally irrelevant to Brubaker’s lawsuit that the cats were seized only after the search that never should have occurred in the first place.

The judges said even if the initial search warrant were unlawfully obtained, once police were inside they had the right to call animal control.

The key, said the appellate judges, is the difference between criminal and civil cases.

“Unlawfully obtained evidence may provide probable cause for a search or seizure,” they wrote.

“Although such evidence may be suppressed in the context of criminal proceedings, the same is not true in (civil rights) actions,” the judges continued. And that allows defendants, as in this case, to justify their decision to call animal control even though they should not have been in the house in the first place.

It now is up to Bury to set a date for a new trial.