i'd like to touch upon three issues in my argument this morning your honor first why this case is so unique factually and legally second the elephant in the room how probable cause should be interpreted here and third of the public policy implications of affirming a district court's ruling that a private investigator may be prosecuted based on fabricated manufactured evidence and that that is not malicious prosecution or at least something that a disputed fact should be decided by a jury and not by a judge would you agree counsel that at least for purposes of our panel the whole issue revolves around probable cause whether there is you agree that if there is probable said i'm and i'm siding specifically gonzales versus city of phoenix which is an arizona case two thousand and two and defines probable causes as an absolute defense for malicious prosecution is to demonstrate how the record prison decide at trial right thank you on what is unique about this case we have a state criminal court determining that the manufactured perjured evidence that the defendant officer was so significant that it remanded an indictment by a grand jury to really evaluate the issue of probable cause in my practice as a civil rights lawyer i've never heard of anything like this it's quite significant i couldn't find any case like it in my search of cases in this country number two the statute defining stalking in arizona specifically excludes first amendment protected activity that therefore would specifically exclude the conduct rico excuse me the conduct that scott did relating to his web sites critical of the family  arizona number three in arizona the state gives a license to private investigators specifically to quote conduct investigations to obtain information relating to their habits contacts movements affiliations associations etc of third parties under arest thirty two dash two for a one year friend mary friend the defendant officer knew the discovery of his websites and the concern that she had regarding the websites content as it related to a sealed order in a family court that this would be a violation of a family court order relating to sealed records nothing at all relating to stocking and with me of course we're looking at probable cause and that must be viewed from the perspective of an objective officer who had the information that this friend had at the time of this indictment june twelfth two thousand and seven the court must then decide based on these facts exercising the manufactured in perjured evidence whether there would be sufficient probable that reasonable officer with the same information to cause someone to be prosecuted or indicted the district court failed to follow well established law to it make inferences in favor of the nonmoving party as to the probable cause record let's start with the date december eighteenth two thousand and six now why is key date because my friend put that date in her search warrant as the beginning time from which scotty conducted anything that was illegal it was the basis for her search warrant it is the basis of every criminal allegation against glenn scottie and why well because the family court issued an order on that date now that order was filed under seal because that record has been sealed however a very close examination of that order will show unequivocally that there was nothing in that order that when scottie violated plans got he wasn't even a party to that order he was never served with that order he was not a party to that family court proceeding but but the husband and i  and the officer when i say the officer why wasn't reasonable for her to interpret that order as barring mr reiko from hiring a private investigator to you know presumably do what private investigators do which could eat him  harassing his his wife or seemed to be ex wife that doesn't strike me as a reasonable interpretation of what the state court had ordered thank you for coming here scott he was accused of violating the the anti war as an aider and abettor though i mean it's not the actions that scotty needs to take to be good to be viable or to be guilty of the crime with which he was charged he doesn't have to personally put miss lewis in fear of death you just have to personally be in close proximity to or he just has to help mr ray go do those things and so that's why i'm saying that the officer looks at that order and says very clearly that he's bartlett mystery goes barred from harassing miss lois she finds out that oh mr eco's hired this private investigator to do the kinds of things that private investigators normally do like go through someone's trash i mean unfortunately here it looks like there might even wiretapping as well  those are the kinds of things that typically lead to harassment would you agree with that i weigh ok so that's what i'm saying that it strikes me as a reasonable interpretation of what the state court order for the office sort of say that oh the mere hiring of a private investigator  might be problematic in terms of what the state court prohibited it might be but here friend didn't say that the order as it's written was what was problematic friend said that the order pick who did the hiring for that mean that a person who is covered by a family court injunction like that could contract with another party to do everything that in this case he was prohibited from doing and he's got free now well isn't that though the very concerned that was raised here as my colleague mentioned in effect this is an aider and abettor question whether it was just god it was hired to do the very thing that his employer could not do i thought on his behalf it's just got to be obviously didn't do this just because he was having fun doing it he was hired to do this by a client and thank you for clarifying that because that's comes full circle back to december eighteenth two thousand and six assuming my friend had the interpretation that your honour's have suggested that any contact after december eighteenth two thousand and six would be something we would be looking at very carefully in this court so let's do that what occurred after december eighteenth two thousand and six that we can associate or connect to my client led scotty i am not here to defend mr rico i personally am offended by mr rico's conduct that's in this record and that's not what we're here to discuss my client is glen scotty a licensed private investigator what did he do and what evidence is there after december eighteenth two thousand  what we have is a death threat that was manufactured and a perjured or manufactured testimony about an anti surveillance or anti private investigator order which did not exist all we have are websites are we e mails all of that happened before december eighteenth two thousand and six those were allegations relating to two thousand and two and two thousand and three those did not really to conduct after december eight looking at what the objective lee reasonable officer knew at the time based on what friend knew at the time friend knew that she had to prove specific intent friend knew that that specific intent had to be proved to the accomplice statute in arizona and he must have probable cause for that specific elephant a specific intent and that's under united states versus lopez for a to f third ten sixty seven at ten seventy two thirteen seventy three that's a ninth circuit decision or again two thousand and seven so she needed to have specific intent evidence to tie scotty to this conduct of rico's she did not have are you say his name that if you did these things and if louis felt that she or her daughter's life was threatened thereby that independently that your client could potentially be subject to a shocking allegation well i'm missing the law in arizona that was in effect of two thousand and seven which was amended in two thousand and eight in this maybe where the district court was mistaken i don't know  number one on page ten of my reply brief i distinguish that the law required evidence on accomplice liability to show he was quote an accomplice of such other person in the commission up the specific offense it was expanded this accomplice liability law was expanded in two thousand and eight to include the natural or probable or reasonable forseeable consequences of an accomplices conduct so here we have a private investigator doing his job collecting trash in two thousand and two watching and  taking pictures from a public place we're not talking about breaking and entering we're talking about a public dance studio taking pictures in the public we're talking about things that private investigators do every day with no evidence whatsoever that his daughter's classes repeatedly photograph them and i did and i'm just give an example and kind of skulked around taking pictures you bet i'd be concerned you bet i would wonder what they were doing and why they were doing it hear whether he had a lawful purpose and the lawful purpose was in the divorce proceedings because the mother was using not using the father's last name and the purpose of that particular single incident a videotaping related to the fact that on the program of that particular dance recital it proved that the mother was violating the family court order by allowing the daughter not to use her father's last name it was simply evidence of name a lot for perpetrating averages of the dance recital first off preceded this is number eighteenth but second off even if it were relevant what's relevant about it is its lawful purpose in a custody battle proceeding regarding the name used by a child a father is permitted to show evidence lawyer does his job a lawyer is somebody who is licensed by the state they are in to do a job just like a private investigator this case would present a very dangerous precedent a lawyers privilege can be invaded if there's a crime fraud is action however a lawyer would not be accused of being an accomplice to a crime unless there is proof that that lawyer did something specifically with specific intent to do that scotty filed a declaration in opposition to summary judgment that is in the record at volume seven tab fifty eight e r six o eight through six twelve specifically denying that there is any wiretapping evidence none has been presented other than morning i'm nicholas to say what i'm arguing today on behalf of the applebee's a lot has been said today about the order that was issued in december two thousand and six that order is not this is not relevant directly relevant to the stalking charge against rico it is directly relevant to the aggravated harassment charge and the way that that aggravated harassment charge was pled i'm it's aggravated because the harassment violated a court order the record does show that detective throwing informed mr sky about that order when she first came across the websites she told him this is violating a court order to get an injunction against harassment and i asked him to take it down and i refused i think it might be best if you proceed in this fashion let's hear your explanation for why the officer here and let's forget about the other officers underlying mr rico's arrest was not disputed in the district court that was not raised in the briefing let's take the grey fiasco out of the picture ok because that is a total fiasco just take that out of the picture tell me even though it's not disputed tell me what evidence establish probable cause that rico had taken actions in the way that the statute defines the course of conduct that put mrs lewis or her daughter in fear of death because of andrew's rico and mr rico's conduct he was added to a database monitored by the domestic violence unit so that's that's the baseline is that he's already on the radar and because of his conduct  over the years and throughout the litigation of his family court case he made unfounded allegations against lewis he accused her of accusing him of molesting their injunction against harassment and they were so bad that the family law judge had to say look you can't even make disparaging remarks about her stop communicating to anyone about this case the spite that order he continued to violate it and continued to talk to various people about the case we know that he hired mr ricca mr scott and assisted in posting items on that website including his daughter's name her age and the child molestation accusations and scotty were both stocking her and that she feared that rico quote may go off and will come into her dance studio and try to kill her or hire someone to do so ok i'm with you i forgot about that but i have one question so was miss lewis to post matter there's no evidence in this record of of her death i'm saying if you take her deposition because it would have seemed critical to bolster what miss what the officer is saying with the testimony of the person who allegedly made those statements  don't i don't believe that there was a deposition a civil deposition in this case ok because as you know given the grave fiasco the officers credibility is in serious doubt and so you're right i forgotten that the officer does say that miss lewis told me these things which would seem to qualify under the statute but it seems that seem like a glaring hole in your record for your client th which if you're driving on the on the road your tire pops you could crash and die they found their dog drowned in the pool mystery scotty admitted that he was on south mountain taking photographs of miss lewis is pool so there's this course of conduct and again we're just we're just talking about a reasonable suspicion that there may have been a crime committed you know there's probable cause what we're talking about which under the gonzales case is to find as a reasonable suspicion so we just need to show where she just needed to have a reasonable suspicion that he satisfied that mr rico satisfy the elements of that statute ok and again that wasn't disputed below ok so now let's switch to scotty and what evidence is there that scott he knew that rico was engaging in the conduct that constitutes the principle violation the statute and then what steps did scottie take to that endeavor and i have a list here i'll just again pr with there was no challenge to the elements of the accomplice statute below the only the only argument in the district court by mr scottie was that his conduct didn't constitute a course of conduct therefore the stocking statute was not satisfied he didn't even cite the accomplice liability statute his argument was two sentences and the district court relied on those admissions consider them essentially confessions concessions and built upon that it's only now actually in her opening brief that they try to attack each of those findings which was our position that that is waived but i'll go through count on who were on the record are these admissions you have that right off your head motion for summary judgment laid out the elements of accomplice liability and went through all of the evidence which the district court adopted going to the trash the wiretapping which there were there were e mails found in scotty's home between scotty and is to simply set simply so that it was not relevant her focus was scott precise focus was there was no course of conduct by me which is the stalking statute but as i as we've established stated need just to  happened ok are you with agreement with your opponent that that happened years before the time period that's relevant here i don't see how that that's i don't see how that's possible mr scottie mr rico knew each other for going back to college i believe that he hired him closer to two thousand and six but if you hired him to surveil lewis sometime in two thousand and six or certainly before there were e mails obviously related to that employment regarding wiretapping and it's our position your honor that the december sixty eighth is not a start date for evidence we know that he does through this is trash he film film didn't take photographs he filmed mrs lewis's daughter at her recital now he's saying after the fact well we just wanted to know if the name was changed on the brochure because you're not supposed to use rico's last name or lewis's last name whatever that excuse is true or not i mean that might be a some defense evidence to to negate guilt but it doesn't undermine probable cause he took as i mentioned photographs of lewis's pool he took photographs of louis dance studio he had a sexually explicit videotape of miss lewis he hosted the two black robe websites and they want to try to minimize that because in their opinion that there was no threat direct threat made against miss lewis we disagree with that i mean these websites were intended to threaten and intimidate miss lewis the family law judge detective point of lewis's attorney they posted the home addresses and google maps of detective freud and the family law judge and it was clear that scottie was going through their trash the documented the days in which the trash pickup was the websites again had the name and age of lewis's daughter and recount of the child molestation accusations that's sickening and as you said i just know that any any person with children would would be flabbergasted by that i mean hear listen none of us is terribly sympathetic to mr scott if any of what's been alleged you know the terms of his conduct but it's not we're not just sitting here trying to figure out whether he's a good or a bad person we're trying to figure out whether there was probable cause to believe that he violated the statute doesn't it in a better and i guess it maybe you have more but everything you tick through doesn't seem to me to in any way suggest that scott even knew that reiko was on this campaign to put mr lewis in fear of death and that the actions he was taking which otherwise is i think your opponent said this is the kinds of things that private investigators normally do that scotty knew that that was aiding this evil endeavor that mr reiko had at undertaking and that's what i guess i'm still waiting to hear from you what what is it that you can latch on to that shows a problem cause to believe that well i think if we go back to the statute your honor the accomplice liability statute the conduct required is just that he aided or abetted or provided a means or opportunity and i think what i just read off satisfies that but your seems like you're focusing on what his intent  think will am i wrong in thinking that your opponent is right that at least at the time the statute was and was version that was in effect at the time that's relevant here that it's not enough that just us as a non princip took actions that help somebody to be needed or better you have to actually know that that's what the principal is doing and that your intent is to aid that person in accomplishing the objective that the the criminal law prohibits right i don't believe that the statute requires that he had the intent to commit an offense and if you look at the statute on stocking well let's look at this point of the compost actually because i guess i'm still stuck maybe i'm missing something that you're trying who with the intent to promote or facilitate the commission of an offense offense that the principal is committing right that's correct ok so that's what i'm saying but and then if you look at the what the the that the principal was committing stalking right that only requires that he intentionally or not knowingly engaged in the course of conduct that put miss lewis in fear of death and that that conduct would cause a reasonable person to fear death not that rico intended to cause her death but that he no intentionally or knowingly engaged in the course of conduct and that that conduct would cause a personal best so the stalking statu is doing something engaging a course of conduct that a reasonable person would be put in fear of death at least to know that that's what rico is doing right and so what do you got that shows that he knew that well he did know that he was being investigated for a crime he did know that by maintaining these websites that violated and injunction against harassment and circumstantially i think we can infer from his relate his simply his relationship with rico and all of the all of the surveillance that he did which they contend it any private investigators licensed to do well that doesn't give you carte blanche permission to break the law he may have been doing things that he would do on any other job but there was at least probable cause a reasonable suspicion that he and rico were in cahoots and were doing this to cause her fear of death and again i go back to detective i'm sorry kimberly lewis is statements to detect she believed that they were both harassing that they were both stalking and she also said that she felt that rico and scotty were behind all of these mysterious nails in the tires the criminal property damage and the doctor and that those are all statements to detective front and when we're talking about probable cause we have to focus on what she was aware of at the time what she was aware of what she's told she can't sit on information and when it's involving a woman and her children and a history of litigation that she was the case man in the case of text of a sign of that case all of that all of that in totality is at least a reasonable suspicion i do agree with you that the most powerful evidence supporting your client is the statements that mr lewis made to her but tell me tell me if i'm wrong in thinking this on this record a jury would have to believe your client your client's account of what miss lewis told her because we don't have any independent cooperation from miss lewis herself couldn't a reasonable jury on this record have serious doubts about whether your client has been truthful given that she fabricated the the stuff about gray that would just be based on an inference your honor there would be no underlying supporting evidence for that inference and they keep saying that that rico and lewis manufactured and created created the sandra gray information but it's the at the end of the day it's their burden of proof to show that detective from in the city of phoenix maliciously prosecuted her it's not the city's proof all we have to do is show that detective freud have probable cause and when you look at detective points police report she documented everything that she saw and heard including the statements by a missile and if they want to go after the credibility of miss lucy statements it was their burden to lister as a witness and oppose her and elicit that evidence but i mean it's pure speculation what she would have said i mean i don't believe in this is in the record but there has there was extensive litigation on why there was an order against arrest in the first place there was a petition for a violation of that order which the court ultimately found after the charge was was be healthy held rico and content because he did violate it ultimately the questions raised by my colleagues were have do they not go more to what would occur if there were an actual charge and then a trial and these would be defenses as opposed to whether or not there was probable cause yes your honor and again any defense evidence that wouldn't maybe nick would not undermine any probable cause reasonable suspicion the detect affect our thinking in this case very much so you know we've raised qualified immunity as a defense from the beginning and the case is uniformly hold that even if it's later determined that there was not probable cause if the because even to sandra great information on it was it reasonable for her to believe that the information she was told was true whether dr gray was a psychologist or not everybody referred to her as dr gray she knew that the family court had appointed a psychologist to conduct a psychosexual examination and dr sandra gray's role was one part of that examination that was a reasonable mistake last point there was there her report only said that gray gave an opinion she never represented that gray gave a professional opinion that was something injected by the prosecutor during the grand jury indictment was an opinion given to her yes by lewis and byron there and it was confirmed in her interview with gray later on ok thank you both for the question but my colleagues we thank both counsel for their arguments