Arizona Authorities Concede Texas Raid Illegal

2010-02-10 22:57:20

By Donald Richter

On February 4, 2010, Mohave County Superior Court Judge Steven Conn granted the motion to suppress evidence seized during the Texas raid on the YFZ Ranch in April of 2008 and vacated the hearing scheduled for February 17, 2010. The opening phrase in this order indicated that it was being issued “Upon stipulation of the parties and good cause appearing.”[1] In other words, a neutral judge has ruled that the evidence presented in the suppression motion made the case that the raid itself was illegal. The State of Arizona has agreed not to use any of the evidence seized in the raid either “directly or indirectly…for any purpose whatsoever.”

The motion to suppress is quite lengthy because of the inclusion of numerous evidence exhibits; however, the summary points near the beginning of the motion do an admirable job of clarifying the major areas of illegality concerning the raid:

1. The Texas Child Protective Services Orders And Subsequent Search Were Illegal Because The Judge Was Falsely Informed That CPS Had Been Denied Admittance.

2. Texas Law Enforcement Officials Exceeded The Scope Of The Warrants And Other Court Orders By Falsely Claiming To Have An Order To Round Up And Interview All Females Aged 7 To 17.

3. Texas Law Enforcement Officials Executed An Overbroad General Search Of The FLDS Community.

4. [The] Entire FLDS Community Was Treated As A Single Household Resulting In [An] Overbroad, General Search.

5. The Search Conducted Illegally Exceeded The Scope Of The Warrant And Resulted In The Seizure of Items Not Authorized To Be Seized.

6. The Search Warrants Were Not Supported By Probable Cause Because They Were Based On False Information And Material Omissions In Violation Of Franks v. Delaware.[2]

These points are established using much of the same evidence that was presented in Judge Walther’s court in the suppression hearing conducted in May of 2009.

In regard to point #1 above, we noted in a previous article that the Texas Family Code Section 261.303 states the condition under which the Court must issue an order to investigate: “If admission to the home, school, or any place where the child may be cannot be obtained, then for good cause shown the court having family law jurisdiction shall order the parent, the person responsible for the care of the children, or the person in charge of any place where the child may be to allow entrance for interview, examination, and investigation.”

In an attempt to satisfy this provision of the Code, the CPS “Petition for Orders in and of Investigation of a Report of Child Abuse or Neglect,” included the following passage: “As more particularly shown in the attached affidavit, the Department has attempted to make a thorough investigation of the report, but cannot obtain admission to the home or school, or access to the children, or cooperation of the parents or others responsible for the care of the children.”

The attached affidavit by Ruby Gutierez merely related the “Sarah” story and made no reference to investigators ever being denied access to the Ranch. Indeed, no attempt had even been made to gain admittance to the Ranch to investigate the report. Had the request been made, it would have been treated with the same consideration already given to requests by other government officials. Sheriff Doran had visited the Ranch on approximately twenty occasions, being invited to be present whenever any State or Federal agency had business there. The most recent of these visits occurred a week before the raid, when he accompanied County Tax Appraiser Jani Mitchell on March 26, 2008.

At the hearing in Judge Walther’s Court in May of 2009 on the motion to suppress evidence seized in the raid, the following interchange took place with CPS attorney Dan Edwards on the witness stand:

Q. [Referring to the paragraph quoted above] Did you include that Paragraph 2.2 in Defendant’s Exhibit 27, which you filed with this Court?

A. Yes, sir, it’s in there….

Q. (By Mr. Goldstein) Is it a true statement…is that anywhere in the affidavit attached to this?

A. No, sir.

In her order denying the motion to suppress, Judge Walther refused even to consider the fact that the CPS Petition was based on a deliberate falsehood and merely stated:

The Court finds that the Department of Family and Protective Services…on April 3, 2008, filed a Petition For Orders in Aid of Investigation of a Report of Child Abuse or Neglect…

The Court finds that a district judge signed an Order for Investigation of Child Abuse dated April 3, 2008.[3]

In regard to point #6 above, Judge Walther refused to hear the testimony of the defense’s expert witness and ruled, “The Court concludes that the Probable Cause Affidavits contained no deliberate falsehoods and that they were not made with a reckless disregard for the truth.”[4]

Such behavior on the part of Judge Walther is reminiscent of her ruling at the 14-day hearing in April of 2008, where she concluded that there had been sufficient evidence presented “to satisfy a person of ordinary prudence and caution” that the three conditions in the Texas Family Code had been met and that the YFZ children should be placed in CPS custody. The Texas Third District Court of Appeals ruled that the Department had failed to satisfy even one of the three conditions mandated by section 262.201 of the Texas Family Code: they “did not present any evidence of danger to the physical health or safety” of the children; they “failed to establish that the need for protection…was urgent and required immediate removal of the children”; and “there was no evidence that the Department made reasonable efforts to eliminate or prevent the removal” of the children.[5]

Judge Walther already was bench slapped by both the Court of Appeals and the Texas Supreme Court. In light of the recent Arizona ruling on the illegality of the Texas raid, she is in line for another reprimand.

[1] State of Arizona vs. Warren Steed Jeffs, “Order,” No. CR-2007-743, Mohave County, Arizona, Superior Court, 4 Feb. 2010. Emphasis added.

[2] State of Arizona vs. Warren Steed Jeffs, “Memorandum and Supporting Evidence Establishing Prima Facie Case for Suppression of Evidence,” No. CR-2007-743, Mohave County, Arizona, Superior Court, 1 Feb. 2010.

[3] State of Texas vs. Raymond Merril Jessop, Schleicher County, Texas, 51^st Judicial District Court, Cause No. 991, 2 Oct. 2009, “Findings of Fact,” ¶6, ¶7.

[4] Ibid., “Conclusions of Law,” ¶9.

[5] In re Sara Steed. Et al, “Memorandum Opinion,” No. 03-08-00235-CV, Texas Court of Appeals, Third District, at Austin, 22 May 2008.

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