1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Greg Moore; et al., ) No. CV 19-0290 TUC RM (LAB) 9 ) Plaintiffs, ) ORDER 10 ) vs. ) 11 ) ) 12 Sean Garnand; et al., ) ) 13 Defendants. ) ) 14 ) 15 Pending before the court is the defendants’ motion, filed on November 7, 2019, to 16 submit ex parte, in camera evidence and argument in their anticipated dispositive motions. 17 (Doc. 47) 18 As of this date, only two defendants remain in the case – Detective Sean Garand and 19 Sergeant Dain Salisbury. See (Doc. 1); (Doc. 38) Both men are employed by the Tucson 20 Police Department (TPD). (Doc. 1) The plaintiffs are in the residential real estate business. 21 (Doc. 1, pp. 4-5) 22 The plaintiffs in this action claim their constitutional rights were violated when the 23 defendants sought and executed search warrants in connection with an arson investigation 24 into the destruction of the Forgeus Apartments on June 8, 2017. (Doc. 1) They bring this 25 action pursuant to 42 U.S.C. § 1983. (Doc. 1, p. 4) Among other things, the plaintiffs claim 26 that the search warrant 17SW1017, executed on June 9, 2017, was procured without probable 27 cause. (Doc. 1, pp. 15-16) The defendants apparently believe that the plaintiffs may be 28 1 responsible for the fire that destroyed these apartments. (Doc. 1) The investigation into that 2 fire is ongoing. 3 On December 13, 2019, this court granted the defendants’ motion to stay discovery 4 of the arson investigation police files pursuant to the law enforcement investigatory privilege. 5 (Doc. 74) Among the documents withheld from discovery is the affidavit that the defendants 6 used to procure the search warrant 17SW1017, executed on June 9, 2017. (Doc. 47) This 7 affidavit has been disclosed to the plaintiffs only in redacted form. 8 In the pending motion, the defendants move for permission to submit the unredacted 9 affidavit ex parte and in camera to this court. (Doc. 47) They then propose to file 10 dispositive motions challenging several of the plaintiffs’ claims arguing, among other things, 11 that there was probable cause to issue the warrant executed on June 9, 2017. Id. They intend 12 to file part of their motions in open court but will submit ex parte and in camera those 13 arguments that rely on the unredacted affidavit. Id. In other words, the defendants want the 14 court to entertain dispositive motions based, in part, on a document the plaintiffs are not 15 allowed to see and arguments to which the plaintiffs cannot respond. 16 17 Discussion 18 “[J]udges . . . are necessarily wary of one-sided process: democracy implies respect 19 for the elementary rights of men and must therefore practice fairness; and fairness can rarely 20 be obtained by secret, one-sided determination of facts decisive of rights.” Am.-Arab 21 Anti-Discrimination Comm. v. Reno, 70 F.3d 1045, 1069 (9th Cir. 1995). “[T]he very 22 foundation of the adversary process assumes that use of undisclosed information will violate 23 due process because of the risk of error.” Id. “It is therefore the firmly held main rule that 24 a court may not dispose of the merits of a case on the basis of ex parte, in camera 25 submissions.” Id. 26 In the past, courts have acknowledged exceptions to the main rule “when the 27 submissions involve compelling national security concerns or the statute granting the cause 28 of action specifically provides for in camera resolution of the dispute.” Vining v. Runyon, 1 99 F.3d 1056, 1057 (11th Cir. 1996). Neither of these exceptions are present in the pending 2 action. Accordingly, the court finds that the “main rule” governs the pending motion. See 3 Am.-Arab Anti-Discrimination Comm., 70 F.3d at 1069. The court will not “dispose of the 4 merits of this case on the basis of ex parte, in camera submissions.” Id. The pending motion 5 will be denied. 6 The parties in this case dispute whether probable cause supported the search warrant 7 executed on June 9, 2017. The defendants move that this court resolve the issue by 8 employing an ex parte, in camera procedure. They maintain this is proper because criminal 9 courts routinely do so when making probable cause determinations. This argument, however, 10 compares apples to oranges. 11 When criminal courts entertain motions to suppress evidence, they sometimes make 12 probable cause determinations based on ex parte, in camera proceedings, but the purpose of 13 these proceedings is to determine what evidence will be admissible at the trial. They are not 14 deciding the merits of the case. See United States v. Raddatz, 447 U.S. 667, 678, 100 S. Ct. 15 2406, 2413 (1980) (“[T]he interests underlying a voluntariness hearing do not coincide with 16 the criminal law objective of determining guilt or innocence.”). Here, the defendants want 17 to use an ex parte, in camera proceeding to determine the existence of probable cause and, 18 in turn, the merits of the plaintiffs’ claims. The due process concerns are different. 19 The defendants further argue that an ex parte, in camera proceeding “is even more 20 permissible in the civil context, where the parties have less stringent due process rights than 21 in the criminal context.” (Doc. 47, p. 12) This argument is difficult to follow. The 22 defendants seem to be arguing that if ex parte, in camera proceedings are permitted in the 23 criminal context, then they must be permissible in the civil context because due process 24 protections in the former context are more stringent than in the later. This argument elides 25 the fact that all criminal procedures are not accorded the same level of due process 26 protection. The procedure at a criminal suppression hearing does not require the same level 27 of due process that is afforded the defendant at his trial. U.S. v. Raddatz, 447 U.S. 667, 679, 28 100 S.Ct. 2406, 2414 (1980). “At a suppression hearing, the court may rely on hearsay and 1 other evidence, even though that evidence would not be admissible at trial.” Id. The 2 identities of confidential informants may be withheld at the suppression hearing, but they 3 must be disclosed before trial if they are “relevant and helpful to the defense.” Id. In sum, 4 “the process due at a suppression hearing may be less demanding and elaborate than the 5 protections accorded the defendant at the trial itself.” Id. This is because a criminal 6 suppression hearing is focused on determining what evidence will be admissible at trial, not 7 on the ultimate question of guilt or innocence. See Id. at 677-679. 8 So while the due process protections in the criminal context generally exceed the 9 protections afforded in the civil context, one cannot say that the due process protections 10 afforded at a criminal suppression hearing also exceed the level of due process required in 11 the civil context. And while ex parte, in camera procedures may be employed in a criminal 12 suppression hearing, that does not mean that the same procedure would pass constitutional 13 muster when resolving a civil claim. See Anti-Discrimination Comm. v. Reno, 70 F.3d 1045, 14 1069 (9th Cir. 1995). 15 In fact, the Ninth Circuit has already held to the contrary that ex parte, in camera 16 procedures are not permitted when deciding the merits of a civil claim absent special 17 circumstances not present in this case. Anti-Discrimination Comm. v.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Greg Moore; et al., ) No. CV 19-0290 TUC RM (LAB) 9 ) Plaintiffs, ) ORDER 10 ) vs. ) 11 ) ) 12 Sean Garnand; et al., ) ) 13 Defendants. ) ) 14 ) 15 Pending before the court is the defendants’ motion, filed on November 7, 2019, to 16 submit ex parte, in camera evidence and argument in their anticipated dispositive motions. 17 (Doc. 47) 18 As of this date, only two defendants remain in the case – Detective Sean Garand and 19 Sergeant Dain Salisbury. See (Doc. 1); (Doc. 38) Both men are employed by the Tucson 20 Police Department (TPD). (Doc. 1) The plaintiffs are in the residential real estate business. 21 (Doc. 1, pp. 4-5) 22 The plaintiffs in this action claim their constitutional rights were violated when the 23 defendants sought and executed search warrants in connection with an arson investigation 24 into the destruction of the Forgeus Apartments on June 8, 2017. (Doc. 1) They bring this 25 action pursuant to 42 U.S.C. § 1983. (Doc. 1, p. 4) Among other things, the plaintiffs claim 26 that the search warrant 17SW1017, executed on June 9, 2017, was procured without probable 27 cause. (Doc. 1, pp. 15-16) The defendants apparently believe that the plaintiffs may be 28 1 responsible for the fire that destroyed these apartments. (Doc. 1) The investigation into that 2 fire is ongoing. 3 On December 13, 2019, this court granted the defendants’ motion to stay discovery 4 of the arson investigation police files pursuant to the law enforcement investigatory privilege. 5 (Doc. 74) Among the documents withheld from discovery is the affidavit that the defendants 6 used to procure the search warrant 17SW1017, executed on June 9, 2017. (Doc. 47) This 7 affidavit has been disclosed to the plaintiffs only in redacted form. 8 In the pending motion, the defendants move for permission to submit the unredacted 9 affidavit ex parte and in camera to this court. (Doc. 47) They then propose to file 10 dispositive motions challenging several of the plaintiffs’ claims arguing, among other things, 11 that there was probable cause to issue the warrant executed on June 9, 2017. Id. They intend 12 to file part of their motions in open court but will submit ex parte and in camera those 13 arguments that rely on the unredacted affidavit. Id. In other words, the defendants want the 14 court to entertain dispositive motions based, in part, on a document the plaintiffs are not 15 allowed to see and arguments to which the plaintiffs cannot respond. 16 17 Discussion 18 “[J]udges . . . are necessarily wary of one-sided process: democracy implies respect 19 for the elementary rights of men and must therefore practice fairness; and fairness can rarely 20 be obtained by secret, one-sided determination of facts decisive of rights.” Am.-Arab 21 Anti-Discrimination Comm. v. Reno, 70 F.3d 1045, 1069 (9th Cir. 1995). “[T]he very 22 foundation of the adversary process assumes that use of undisclosed information will violate 23 due process because of the risk of error.” Id. “It is therefore the firmly held main rule that 24 a court may not dispose of the merits of a case on the basis of ex parte, in camera 25 submissions.” Id. 26 In the past, courts have acknowledged exceptions to the main rule “when the 27 submissions involve compelling national security concerns or the statute granting the cause 28 of action specifically provides for in camera resolution of the dispute.” Vining v. Runyon, 1 99 F.3d 1056, 1057 (11th Cir. 1996). Neither of these exceptions are present in the pending 2 action. Accordingly, the court finds that the “main rule” governs the pending motion. See 3 Am.-Arab Anti-Discrimination Comm., 70 F.3d at 1069. The court will not “dispose of the 4 merits of this case on the basis of ex parte, in camera submissions.” Id. The pending motion 5 will be denied. 6 The parties in this case dispute whether probable cause supported the search warrant 7 executed on June 9, 2017. The defendants move that this court resolve the issue by 8 employing an ex parte, in camera procedure. They maintain this is proper because criminal 9 courts routinely do so when making probable cause determinations. This argument, however, 10 compares apples to oranges. 11 When criminal courts entertain motions to suppress evidence, they sometimes make 12 probable cause determinations based on ex parte, in camera proceedings, but the purpose of 13 these proceedings is to determine what evidence will be admissible at the trial. They are not 14 deciding the merits of the case. See United States v. Raddatz, 447 U.S. 667, 678, 100 S. Ct. 15 2406, 2413 (1980) (“[T]he interests underlying a voluntariness hearing do not coincide with 16 the criminal law objective of determining guilt or innocence.”). Here, the defendants want 17 to use an ex parte, in camera proceeding to determine the existence of probable cause and, 18 in turn, the merits of the plaintiffs’ claims. The due process concerns are different. 19 The defendants further argue that an ex parte, in camera proceeding “is even more 20 permissible in the civil context, where the parties have less stringent due process rights than 21 in the criminal context.” (Doc. 47, p. 12) This argument is difficult to follow. The 22 defendants seem to be arguing that if ex parte, in camera proceedings are permitted in the 23 criminal context, then they must be permissible in the civil context because due process 24 protections in the former context are more stringent than in the later. This argument elides 25 the fact that all criminal procedures are not accorded the same level of due process 26 protection. The procedure at a criminal suppression hearing does not require the same level 27 of due process that is afforded the defendant at his trial. U.S. v. Raddatz, 447 U.S. 667, 679, 28 100 S.Ct. 2406, 2414 (1980). “At a suppression hearing, the court may rely on hearsay and 1 other evidence, even though that evidence would not be admissible at trial.” Id. The 2 identities of confidential informants may be withheld at the suppression hearing, but they 3 must be disclosed before trial if they are “relevant and helpful to the defense.” Id. In sum, 4 “the process due at a suppression hearing may be less demanding and elaborate than the 5 protections accorded the defendant at the trial itself.” Id. This is because a criminal 6 suppression hearing is focused on determining what evidence will be admissible at trial, not 7 on the ultimate question of guilt or innocence. See Id. at 677-679. 8 So while the due process protections in the criminal context generally exceed the 9 protections afforded in the civil context, one cannot say that the due process protections 10 afforded at a criminal suppression hearing also exceed the level of due process required in 11 the civil context. And while ex parte, in camera procedures may be employed in a criminal 12 suppression hearing, that does not mean that the same procedure would pass constitutional 13 muster when resolving a civil claim. See Anti-Discrimination Comm. v. Reno, 70 F.3d 1045, 14 1069 (9th Cir. 1995). 15 In fact, the Ninth Circuit has already held to the contrary that ex parte, in camera 16 procedures are not permitted when deciding the merits of a civil claim absent special 17 circumstances not present in this case. Anti-Discrimination Comm. v. Reno, 70 F.3d 1045, 18 1069 (9th Cir. 1995); see also Lynn v. Regents of Univ. of California, 656 F.2d 1337, 1346 19 (9th Cir. 1981); Abourezk v. Reagan, 785 F.2d 1043, 1061 (D.C. Cir. 1986), aff'd, 484 U.S. 20 1, 108 S. Ct. 252 (1987); Vining v. Runyon, 99 F.3d 1056, 1057 (11th Cir. 1996); but see 21 Meridian Int'l Logistics, Inc. v. United States, 939 F.2d 740, 745 (9th Cir. 1991) (District 22 Court could consider ex parte/in camera evidence when determining whether agent “was . 23 . . acting within the course and scope of his employment for the United States of America.”). 24 The defendants’ arguments, even if this court were to find them persuasive, are precluded by 25 Ninth Circuit precedent. 26 27 28 1 IT IS ORDERED that the defendants’ motion, filed on November 7, 2019, to submit 2 || ex parte, in camera evidence and argument in their anticipated dispositive motions 1s 3 || DENIED. (Doc. 47) 5 DATED this 8" day of January, 2020. 7 8 Reals A. Bowman 9 Leslie A. Bowman 10 United States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 _5-