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Daschke v. Hartenstein

United States District Court, D. Arizona

September 27, 2019

Karl Daschke, et al., Plaintiffs,
v.
Theodore Hartenstein, et al., Defendants.

          ORDER

          Jennifer G. Zipps, Judge

         In 2016, the Pima County Sherriff s Department investigated a series of break-ins at unoccupied homes listed for sale, which came to be known as “mansion parties.” At some point during the Department’s investigation, detectives began focusing on a juvenile, ZD, and ultimately obtained a warrant to search ZD’s home, his family’s vehicles, and all electronics. Following that search, the Sherriff s Department contacted Arizona’s Department of Child Services, and various members of that agency took actions that resulted in the removal of ZD and his younger brother ND from the Daschke home. ZD, ND, and the rest of the Daschke family then sued members of the Sherriff s Department and Department of Child Services. Before the Court are five motions for summary judgment filed by various parties seeking judgment in their favor. The Court heard arguments on these Motions on August 20, 2019.

         Factual Background [1]

         I. The Investigation and Arrest

         Law enforcement started to receive reports of unauthorized house parties in the Tucson area during the summer of 2016. These events tended to take place in unoccupied homes, often entailed alcohol and drug use by minors, and sometimes resulted in significant damage to the homes. The parties were, at times, attended by hundreds of adolescents, and the date and location of each event was disseminated via various forms of social media. The Pima County Sheriff’s Department assigned Detective Theodore Hartenstein to lead an investigation into the parties. (Doc. 155, ¶ 37.) Detective Jonathan Siress joined the investigation in October 2016 as a member of the Department’s Community Problems Unit. (Doc. 155-9, pg. 5.)[2]

         Following a mid-August break-in and party at one particular residence, 660 N. Mountain Side Way, which resulted in extensive damage to the home, law enforcement interviewed several adolescents who had attended the event. One attendee, LD, stated that a person named “Z” had attended the party at 660 N. Mountain Side Way, but LD did not recall Z causing any damage to the home. (Doc. 162-1, exh. 5, pg. 38.) Another female student, AC, identified ZD as a white male who possibly ran the private Twitter account, “Tucson Addies”[3] or “Town Addies or something like that.” (Doc. 157-9, pgs. 4-5.) Finally, a female student named TC informed law enforcement that she knew ZD. (E.g., Doc. 157-7, pg. 3.) Law enforcement did not specifically ask TC if a person named ZD ever attended one of the house parties, but when TC was asked for the names of people who had caused damage to 660 N. Mountain Side Way, she replied that a student named “Z” had caused damage.[4] (Doc. 157-6, pg. 10.) She added, however, that she did not know “Z’s” last name, and that he went by “Brizo (ph).” (Doc. 155, ¶¶ 45-46, 53; Doc. 157-6, pg. 10.) Law enforcement downloaded the contents of TC’s phone. (Doc. 155, ¶ 48.) In the downloaded contents, law enforcement recovered a photo of an African American male under the contact name “Breezo Slaughter.” (Doc. 155, ¶ 56.)

         Law enforcement also retrieved from the download one screenshotted photo from Snapchat of a naked male, whom TC identified as ZD. (Doc. 155, ¶¶ 57, 60.) TC told law enforcement that another friend had sent her the photo and further stated that she was friends with ZD. (Doc. 157-6, pgs. 21-22.) TC explicitly denied any form of a sexual relationship with ZD each time Officer Hartenstein asked about the nature of their relationship. (Id.; Doc. 155, ¶¶ 59-60.) Law enforcement also retrieved a text communication from “Z”-no last name specified-sent to TC on August 11, 2016, before the 660 N. Mountain Side Way party. (Doc. 162, ¶ 10; Doc. 162-1, exh. 7, pg. 48.) The text offered to “provide for that party” and stated that the sender could “go on some bottle runs” and “buy some bud.”[5] (Id.) TC’s phone download reflected 12 people named “Z” in her contact list. (Doc. 155, ¶ 64.)

         In addition to the photo and text, law enforcement obtained various random images of drugs, paraphernalia, alcohol, and mansion party-related social media activity. (Docs. 156-5, 156-6.) Law enforcement likewise obtained metadata from a snapchat conversation spanning from June 12, 2016, to August 19, 2016. (Doc. 156-7.) Most text entries in the conversation contained residential Tucson addresses, with no other information. (Id.) One participant on the conversation thread with a username resembling ZD’s full name sent numerous messages with addresses to the other participants, but a different participant in the conversation shared the address “660 N. Mountain Side Way” with the group.[6] (Id.)

         On November 30, 2016, Detective Hartenstein contacted ZD’s father, Karl Daschke, to set up an appointment with the Department to interview ZD. Detective Hartenstein indicated that he had probable cause to charge ZD with a felony and would present the case for an arrest warrant if he did not hear back from Karl, but that he wanted to provide ZD with an opportunity to present his side first. Karl Daschke returned Detective Hartenstein’s call to say that he did not consent to ZD attending any interview without an attorney or a parent present. (See Doc. 155-8, pgs. 29-30; Doc. 175-9.)

         On December 13, based on the interviews with and the downloads obtained from TC, LD, and AC, Detectives Hartenstein and Siress filed an affidavit seeking a warrant to search ZD’s person, his family’s home, and all four vehicles kept at the home.[7] (Doc. 155-6). The affidavit contained the following statements: fingerprints and other DNA swabs had been collected at “several of the incidents”; ZD was known as an associate of several juveniles already arrested, and specifically, TC “identified [ZD] as a person she had an intimate sexual relationship with during an interview”; TC’s cellphone contained images of alcohol, illegal drugs, and drug paraphernalia, as well as text conversations about drug use and sexual activity in connection with the mansion parties; one of the Twitter accounts that law enforcement had been monitoring, “Tucsonparties, ” had advertised the addresses where the mansion parties were to take place, and encouraged alcohol consumption, drug usage, and sexual activity; TC and AC said that ZD operated “Tucsonparties, ” and further stated that they had seen ZD at the party where the most criminal activities occurred, and that he was an active participant in the events of that party. The affidavit concluded by stating that “[t]he use of social media accessed through computers, cellular telephones[, ] and other electronic devices” was “key to the advertising and promotion of” the illegal activities at the mansion parties, and that it was likely there is more evidence of this activity contained within the cellular phone and other electronic devices to which [ZD] has access.” (Id.)

         That same day, based on the information supplied in the affidavit, an Arizona Superior Court judge signed a warrant authorizing the detectives to search: 1) ZD’s person for prints and buccal swabs, 2) the family home where ZD resided, and 3) four cars kept at the residence-three registered to Karl and Gretchen Daschke, and one registered to Joshua Daschke. In the home and vehicles, the warrant authorized law enforcement to seize any narcotics or paraphernalia, any items that could identify suspects or co-conspirators as yet unidentified, and all cell phones or other electronic devices. The warrant further authorized law enforcement to complete a forensic download of all texts, photos, and other media contained on any of the cell phones or electronic devices, and to retain any evidence of burglary, criminal trespass, criminal damage, alcohol-related offenses, curfew violations, narcotics possession, criminal nuisance or disorderly conduct, and evidence of “permitting life, health, or morals of minor to be imperiled by neglect, abuse or immoral associations.” (Doc. 155-5.)

         Detectives Hartenstein and Siress were both part of the team that subsequently executed the warrant. (Doc. 162, ¶ 36.) During their search, the detectives retrieved a packet of cocaine in ZD’s wallet and four partially filled liquor bottles in a van that ZD occasionally drove. (Doc. 162, ¶ 20.) ZD was later charged with burglary, criminal damage, criminal trespass, narcotics possession, and minor in possession. (Doc. 164-9, ¶ 39.) He pled guilty to criminal trespass and the remaining counts were dismissed. (Doc. 162, ¶ 31.)

         II.

         Subsequent Involvement by Child Services and Removal

          On December 15, 2016, Detective Hartenstein reported the Daschke household to Arizona’s Department of Child Services (DCS) hotline. (Doc. 128, ¶ 1; Doc. 128-4.) He detailed the criminal charges that ZD was facing and indicated that ZD had been caught with cocaine on his person, alcohol in a car he operated, and vaping supplies in his bedroom. Detective Hartenstein reiterated much of the information submitted in the warrant affidavit, supplemented by what he had uncovered when searching the home. (Doc. 113, ¶ 6.) After calling DCS’s hotline, Detective Hartenstein had a phone conversation with a DCS investigative case manager, Gerardo Talamantes, during which Hartenstein told Talamantes that another mansion party location had been publicized following the search of the Daschke home. (Doc. 113, ¶¶ 2, 7.) DCS assigned Talamantes to investigate Hartenstein’s report, with the approval of Talamantes’s supervisor, Mildred Jimenez. (Doc. 113, ¶¶ 2, 8.)

         The Parties dispute much of what happened during DCS’s investigation. In short, however, on December 20, Talamantes began interviewing members of the Daschke family, starting with the Daschke’s 14-year old son, ND, while ND was at school. (Doc. 113, ¶¶ 1, 8; Doc. 1, ¶ 86.) According to Defendants, Talamantes spoke with the school counselor and assistant principal, who informed Talamantes that ND had cut his arms with a razor blade the day before, but that ND was nevertheless performing well in school. (Doc. 113 ¶ 8; Doc. 128-8, pg. 7.) Talamantes did not at any point actually see the damage to ND’s arm, because ND did not disclose the incident to Talamantes. (Doc. 175-10, pg. 10.) Talamantes also met with Joshua, Karl, Gretchen Daschke, and ZD, and learned that ZD had a history of substance abuse dating back at least three years, starting with the use of a bong and vaping products (Doc. 164, ¶ 12), and progressing to oxycodone in 2015. (Doc. 175-10, pg. 4.) Gretchen Daschke informed Talamantes that ND had cut his arm because of something to do with his relationship with a girl, and that ND had told her that he would not do it again. (Doc. 113, exh. 1.) Talamantes concluded that Gretchen Daschke’s only reaction to ND cutting himself was her decision to “keep an eye on him, ” and to meet with a school counselor, who could not provide self-help services. (Doc. 178, ¶¶ 11-12.) With regard to ZD, Talamantes learned that Gretchen and Karl had been aware of his drug use and had responded by grounding ZD, drug testing him, and threatening to take him to a drug rehabilitation center. (Doc. 175-10, pg. 4.)

         According to Plaintiffs, they were reluctant to be too candid with Talamantes because they believed that he was conducting an investigation that paralleled law enforcement’s. For this reason, Karl declined to comment on any of the allegations that ZD had been involved in criminal behavior and repeated his belief that law enforcement had sent DCS to their home on a fishing expedition, for lack of evidence against them. (Doc. 128-10, pg. 2.) Gretchen stated that a few years ago, she and Karl had found a bong in their home belonging to ZD and had grounded ZD for a month. (Doc. 128-9, pgs. 2-3.) The parents had ZD complete a monthly drug test and, as a result, learned that he had tested positive for oxycodone once in the previous year. (Id.) In response, they threatened to place ZD in rehab. (Doc. 175-3, pg. 4.) They also began to track his location on an IPhone app, grounded him, and monitored his appearance when he returned home from going out with friends. (Id.) As to ND, Gretchen states that she informed Talamantes that she had met with school officials to discuss ND’s cutting, and that the parents were going to set up a meeting after the holiday break to discuss any further actions required. (Doc. 128, ¶ 11; Doc. 128-9, pg. 3.) Gretchen perceived ND’s cuts to be “three small scratches.” (Doc. 175-3, pg. 5; attached exh. 72.)

         Based on Talamantes’s conversation with ND and school officials, and the report filed by Detective Hartenstein, DCS decided to convene a “Team Decision Making” meeting to address the well-being of ZD and ND. On December 22, 2016, Talamantes, Jimenez, Detective Hartenstein, and a DCS “Team Decision Making” facilitator, Valerie Brown, met at the Daschke family home with Karl and Gretchen Daschke. (Doc. 113 ¶¶ 3, 8-9.) The parties dispute what occurred at the meeting, but based on the conversation, DCS officials concluded that they needed to remove ND and ZD from the home.[8] (Doc. 113, ¶ 11; Doc. 175, ¶ 20.) According to the DCS officials, removal was appropriate because it became apparent during the meeting that the parents were unwilling to take action in response to ZD’s reported drug use and ND’s recent cutting. (Doc. 175, ¶¶ 20, 25, 30.) According to the parents, the DCS officials conducted a hurried meeting consisting of under-explained intervention proposals, and the parents were unwilling to speak candidly because Detective Hartenstein was at the meeting and DCS officials were probing into the same activity for which ZD was then under investigation. (Doc. 128, ¶ 23, 27-29.)

         DCS removed ZD that day, and ND the following day. (Doc. 113, ¶ 11.) ZD was placed in residential group home La Paloma Victoria House. ND was initially placed in Our Family Services homeless shelter, and then transferred to La Paloma Victoria House. On December 28, 2016, DCS filed a petition with the Arizona Superior Court, alleging that ND and ZD were dependent minors. (Doc. 113, ¶ 12.) The court issued a temporary order committing ND and ZD to DCS’s custody. (Doc. 113, ¶ 13.) Two days later, during a temporary custody hearing, Talamantes testified that ZD should not return to his parents because in response to ZD’s recent behavior, Gretchen and Karl were “trying the same methods and the same things, ” such as grounding ZD and drug testing him, while “expecting different results, ” even though his substance abuse had “escalated.” (Doc. 175-10, pgs. 7-8.) With respect to ND, Talamantes testified that he had grown concerned after speaking to Gretchen Daschke that “her plan, or her action, was just to take [ND’s] word for it that he would never” cut his arm again. (Doc. 175-10, pg. 11.)

         At the conclusion of the hearing, the court ordered that ND and ZD be returned to the family home. (Id.) The dependency action was ultimately dismissed on March 8, 2017. (Doc. 113, ¶ 13.)

         III. The Lawsuit

         Shortly after, Plaintiffs brought suit. ZD, ND, Joshua, Karl, and Gretchen Daschke each allege that Detectives Hartenstein and Siress committed various Fourth Amendment violations during the course of searching the family home and other property, and, in ZD’s case, for also failing to correct misinformation previously provided to the District Attorney’s Office. (Counts I-VII). ZD and ND also allege Fourth Amendment violations against Department of Child Services Defendants (DCS Defendants)-Gerardo Talamantes, Mildred Jimenez, and Valerie Brown-for removing ZD and ND from their parents (Counts VIII-IX). ZD, ND, Karl, and Gretchen Daschke additionally allege that Hartenstein, Siress, and the DCS Defendants violated their familial association rights and committed procedural and substantive due process violations by removing ZD and ND (Counts X, XII-XIII). Finally, ZD, ND, and Karl and Gretchen Daschke allege that Hartenstein, Siress, and the DCS Defendants retaliated against Plaintiffs for counseling ZD not to answer questions without an attorney present or otherwise cooperate with law enforcement’s investigation (Count XI).

         Before the Court are the Parties’ various motions for summary judgment. Plaintiffs have filed a Motion for Summary Judgment on their first four Fourth Amendment claims against Hartenstein and Siress, [9] and on their familial association claim against the DCS Defendants. Hartenstein and Siress have filed a Motion for Summary Judgment on all claims pertaining to them (Counts I-VII, X-XIII). And the DCS Defendants have filed a Motion for Summary Judgment on all claims against them (Counts VII-XIII). The DCS Defendants have also filed a Partial Motion for Summary Judgment on all claims other than the retaliation claim, arguing that they are immune from suit.

         Summary Judgment Standard

          Summary judgment is appropriate when: (1) the movant shows that there is no genuine dispute as to any material fact; and (2) that after viewing the evidence most favorably to the non-moving party, the movant is entitled to prevail as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th Cir. 1987). “Only disputes over facts that might affect the outcome of the suit under governing [substantive] law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A “genuine issue” of material fact arises only “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.

         When considering a motion for summary judgment, the court accepts as true the non-moving party’s evidence, if it is supported by affidavits or other evidentiary material. Celotex, 477 U.S. at 324; Eisenberg, 815 F.2d at 1289. The non-moving party may not merely rest on its pleadings; the non-moving party must produce some significant probative evidence tending to contradict the moving party’s allegations, thereby creating a material question of fact. Anderson, 477 U.S. at 256-57 (holding that plaintiff must present affirmative evidence to defeat properly supported motion for summary judgment); First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968); see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (nonmovant must present more than “some metaphysical doubt as to the material facts”). “A summary judgment motion cannot be defeated by relying solely on conclusory allegations unsupported by factual data.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). “Summary judgment must be entered ‘against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.’” United States v. Carter, 906 F.2d 1375, 1376 (9th Cir. 1990) (quoting Celotex, 477 U.S. at 322).

         Discussion

         I. Hartenstein and Siress

         Plaintiffs collectively bring eleven claims against Detectives Hartenstein and Siress-seven involving alleged Fourth Amendment violations, and four involving alleged violations of other constitutional rights. Hartenstein and Siress move for Summary Judgment on all counts, arguing in part that they are entitled to qualified immunity from suit and in part that Plaintiffs fail to state a claim as to some of the counts. Plaintiffs move for Summary Judgment on four of the alleged Fourth Amendment violations.

         a. Fourth Amendment Claims

         The Complaint alleges that Hartenstein and Siress violated ZD’s, Joshua Daschke’s, Karl Daschke’s, Gretchen Daschke’s, and ND’s Fourth and Fourteenth Amendment rights by including false information and omitting material facts from the warrant application, and then searching each family members’ belongings, and in ZD’s case, his person, without probable cause (Counts I-IV, VI). Similarly, the Complaint alleges that the Defendants further violated ZD’s Fourth, Fifth, and Fourteenth Amendment rights by failing to report to the prosecuting attorneys when the detectives learned from Twitter that ZD was not associated with any of the Twitter accounts they believed him to have been associated with, thereby allowing the state to continue wrongfully prosecuting ZD (Count V).

         i. The Search Warrant

         Defendants argue that ZD is barred from bringing suit for civil damages under Heck v. Humphrey, 512 U.S. 477 (1994), because ZD pled guilty to criminal trespass. Defendants further argue that the other family members “have no standing” as a result of Heck, because “[t]heir constitutional claims hinge on [ZD’s] constitutional claims.” (Doc. 181, pg. 5.) Heck holds that a plaintiff may not recover civil damages for an alleged constitutional violation where, in order to prevail in his suit, he would have to negate an element of an offense for which he had been convicted. Id. at 486.

         Heck is not implicated by ZD’s criminal trespass guilty plea. As an initial matter, Defendants do not describe what evidence, of the evidence seized pursuant to the search of the home, family members’ electronic devices, and family cars, would have supported a guilty plea for criminal trespass.[10] See Id . at 487 (“the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence”); Schwartz v. City of Phoenix, 83 F.Supp.2d 1102, 1104 (D. Ariz. 2000) (“Plaintiff can seek damages for an allegedly unreasonable search and seizure that did not produce evidence introduced at his criminal trial.”). Moreover, ZD’s “guilty plea in no way constituted an admission that the search . . . was proper under the Fourth Amendment.” Haring v. Prosise, 462 U.S. 306, 318 (1983). “[I]t is impermissible for a court to assume that a plea of guilty is based on a defendant’s determination that he would be unable to prevail on a motion to suppress evidence.” Id.; see also Ove v. Gwinn, 264 F.3d 817, 823 (9th Cir. 2001) (“Their convictions derive from their pleas, not from verdicts obtained with supposedly illegal evidence. The validity of their convictions [for driving under the influence] does not in any way depend upon the legality of the blood draws.” (emphasis omitted)). And even if ZD’s civil suit was barred by Heck, Defendants offer no support for Defendants’ claim that the other Plaintiffs should be precluded from arguing that the executed search was unreasonable as to their own Fourth Amendment rights.[11] See Whitaker v. Garcetti, 486 F.3d 572, 581 (9th Cir. 2007) (holding that Heck did not bar plaintiff from bringing suit to recover for Fourth Amendment violation where law enforcement tapped into plaintiff’s call, because though the other person on the line was convicted, plaintiff “never was arrested or charged with a crime”).

         Defendants also argue that they are immune from suit. The doctrine of qualified immunity shields government officials “from liability for civil damages” where “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “Qualified immunity balances two important interests-the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). When evaluating a claim for qualified immunity, the court determines whether the facts alleged or demonstrated make out a constitutional violation, and whether the right at issue was clearly established at the time of the defendants’ alleged misconduct. Id. at 232, 236. A clearly established right is one that is sufficiently clear that any reasonable official would understand that what he is doing violates that right. Reichle v. Howards, 566 U.S. 658, 664 (2012).

         Plaintiffs argue that Defendants Hartenstein and Siress should not be immune from liability stemming from Plaintiffs’ Fourth Amendment claims-first because the Defendants obtained the warrant through judicial deception, and additionally because the warrant affidavit, on its face, lacked sufficient information to support a finding of probable cause, in that it did not include enough relevant information linking ZD to the house parties or indicate any causal connection between ZD’s behavior and the places to be searched in the warrant.

         “It is clearly established that judicial deception may not be employed to obtain a search warrant.” KRL v. Moore, 384 F.3d 1105, 1117 (9th Cir. 2004) (citing Franks v. Delaware,438 U.S. 154, 155–56 (1978)). To demonstrate that law enforcement officers obtained a warrant through judicial deception, a plaintiff must make a substantial showing “that the defendant deliberately or recklessly made false statements or omissions that were material to the finding of probable cause.” Ewing v. City of Stockton, 588 F.3d 1218, 1223 (9th Cir. 2009) (quoting KRL, 384 F.3d at 1117); Butler v. Elle, 281 F.3d 1014, 1024 (9th Cir. 2002). “Omissions or misstatements resulting from negligence or good faith mistakes will not invalidate an affidavit which on its face establishes probable cause, ” and a claim of judicial deception likewise may not be based on an officer’s erroneous assumptions about the evidence he has received. United States v. Smith, 588 F.2d 737, 739-40 (9th Cir. 1978). If a party makes a ...


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