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Jason D. Lamm (018454)

Law Office of Jason Lamm

2501 North Seventh Street

Phoenix, Arizona 85006-1062

Tel: (602) 222-9237

Fax: (602) 222-2299

Email: jlamm@cyberlawaz.com

Attorney for Plaintiff Leslie A. Merritt, Jr.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Leslie A Merritt, Jr., a single man,

Plaintiff,

vs.

State of Arizona, et al.

Defendants.

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Case No.: CV17-4540-PHX-DGC

PLAINTIFF’S RESPONSE TO 

DEFENDANT’S SEVENTH 

MOTION IN LIMINE RE: AARON 

SAUCEDO (DOC 330)

The plaintiff, through undersigned counsel, opposes the defendant’s Seventh 

Motion In Limine Re: Aaron Saucedo (Doc 330) because the evidence showing 

Saucedo's responsibility dissipates any claims against Merritt and impeaches the 

defendant's claim of probable cause under Rules 401 and 403.

Introduction

The defendant knew Saucedo was responsible for the Freeway Shootings 

before they arrested Mr. Merritt. Before arresting the plaintiff, the defendant had 

license plate reader (LPR) data, showing a high likelihood that Saucedo’s vehicle 

was identified at two–if not more–of the Freeway Shootings. They knew that 

Saucedo’s gun was not in pawn at the time of the four shootings, and they had 

information linking Saucedo to a homicide that occurred in August of 2015, 

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involving the same caliber of weapon that Christopher Kalkowski identified as 

having fired the evidentiary bullets.

Because of the defendant's rush to judgment of Mr. Merritt based on his 

Facebook posting, the State disregarded the evidence. The DPS crime lab never 

scientifically compared test-fired bullets from Saucedo’s gun to the evidentiary 

bullets. Instead, the DPS investigative supervisor lied to a prosecutor and told her 

that LPR’s were not used with the defendant’s investigation of the Freeway 

Shootings.

The defendant has maintained that it had probable cause to arrest the plaintiff 

(Doc 34 at ¶ 80). The jury should hear not only facts the defendant chose to consider

but also the facts they knew and chose to ignore and obfuscate.

Statement of Material Facts

1. Aaron Saucedo has been indicted for the murder of Raul Romero, his 

mother’s boyfriend, which occurred on August 16, 2015 (Exhibit 1).

2. According to police reports, multiple 9mm casings were recovered at the 

scene of the murder. (Exhibit 2). The Phoenix Police Crime Lab determined that 

the casings came from a Hi-Point Model C9 9mm handgun. (Exhibit 3).

4. The defendant arrested plaintiff without a warrant for, among others: 1) 

shooting a Cadillac Escalade at 11:03 a.m. on August 29, 2015, on the I-10 Freeway 

near 19th Avenue, and 2) shooting a Vanar Bus at 11:03 a.m. on August 29, 2015, on 

the I-10 Freeway near 43rd Avenue. The defendant’s trajectory analysis of the two 

shootings suggests that the shooter was driving westbound at the time of both 

shootings.

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5. On Saturday, August 29, 2015, at 10:47 a.m., Saucedo purchased 50 rounds 

of 9mm ammunition from Mo Money Pawn Shop, at 11:52 E. Indian School Road in 

Phoenix. (Exhibit 4).

6. It is reasonable to believe that, after purchasing ammunition on August 29, 

2015, it would take about a minute for Saucedo to leave the store and get into his 

car, and an additional minute or two for him to load the magazine of his Hi-Point 

C9 handgun. (Exhibit 5, Declaration of Clark at p.3, ¶ 17).

7. Saucedo would have needed approximately 12 minutes to drive from Mo 

Money to I-10 and 19th Avenue. It would take an additional two minutes after the 

Escalade shooting to drive westbound on the I-10 to the location of the 43rd Avenue 

shooting. (Id. at ¶ 19). This information places Saucedo near the two shootings 

immediately after he bought the bullets. Id.

8. On September 8, 2015, Sgt. Tony Mapp received a memorandum from the 

DPS Arizona Vehicle Theft Task Force discussing the use of LPR’s in the 

investigation of the Freeway shootings. That memorandum discussed DPS’s

analysis of 3493 license plates, detecting over 800 at two or more shooting locations.

(Exhibit 6).

9. Details of the recurrent license plates were in a further report dated 

September 10, 2015. Per this LPR data in the defendant’s possession before the 

plaintiff’s arrest, a vehicle bearing the license plate BLA 7520 was captured at the 

scene of both shootings. (Exhibit 7).

10. According to a Phoenix Police report generated concerning additional firstdegree murder charges against Saucedo, at the time of the Escalade and Bus 

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shootings (on August 29, 2015), Saucedo owned a 2001 BMW bearing Arizona 

license plate BLA 7920. (Exhibit 8).

11. LPR’s use Optical Character Recognition (OCR) that can translate plate 

information into digital text. OCR is not exact; thus, the police expect some errors 

in character recognition, though the more characters of a license plate identified–

particularly alphabetical characters as they are more statistically weighty than 

numerical characters–the greater the investigative significance of the scan or read 

by the LPR. (Exhibit 5, ¶ 12).

12. On or about September 4, 2015, Kalkowski opined that the evidentiary bullets 

were fired from a single Hi-Point Model C9 handgun. (Doc 334 at (c)(1)(4)).

13. On September 14, 2015, Detective Graff checked a pawnshop database to 

locate any Hi-Point Model C9 handguns in local pawn shops. Among them was 

Aaron Saucedo’s. (Exhibit 9). The records Graff recovered list Saucedo’s home 

address as 4620 N. 10th Street in Phoenix.

14. Those same records showed that Saucedo pawned his gun on Tuesday, 

September 1, 2015, and that it was available (and not in pawn) for all of the shootings 

with which plaintiff was criminally charged, including shooting Alfred Hackbarth’s 

BMW on Sunday, August 30, 2015, at 9:45–some 4 hours after Merritt’s gun was 

pawned. Id.

15. On September 17, 2015, Detective Graff collected seven (7) Hi-Point Model 

C9 handguns from local pawn shops, including Saucedo’s. (Exhibit 10).

16. According to a DPS-generated internal PowerPoint presentation, background 

checks were done on all the seized guns and their owners, including cross-checks 

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through COPLINK and the Phoenix Police Departments Report Management 

System. (Exhibit 11).

17. “COPLINK is a data sharing and crime analytics platform that is designed to 

help law enforcement organizations solve crimes faster by providing tactical, 

strategic, and command-level access to vast quantities of seemingly unrelated data. 

With task-oriented features, the COPLINK program helps law enforcement 

professionals search the expansive inter-agency database for leads and suspects.”1

18. Saucedo’s home address is identical with his mother's, who was listed in a 

recent Phoenix Police report concerning her boyfriend’s murder, which would have 

caused an alert in both COPLINK and in the check of Phoenix Police records. This 

alert would have caused reasonable investigators to investigate Saucedo further and 

not to arrest the plaintiff until this investigation excluded Saucedo as a suspect. 

(Exhibit 5 at ¶ 12).

19. Reasonable police officers would have conducted a background investigation 

on all of the individuals who pawned the gun in Exhibit 10, including a check into 

all vehicles registered to them, and compared that information to the LPR data 

acquired on September 10, 2015, for any commonalities. Id.

20. A reasonable police officer would have not only noticed that 6 or 7 characters 

in Saucedo’s license plate matched the vehicles observed at both shootings, but also 

would have immediately conducted further investigation into his involvement in the 

1 https://forensiclogic.com/coplink (last visited March 1, 2020).

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Freeway Shootings. The LPRs matching six of the seven characters suggest high 

reliability and accuracy. It would be unreasonable not to investigate Saucedo further

and to focus purely upon the plaintiff, particularly because the plaintiff’s gun was 

not available for the BMW shooting. Id.

21. Sgt. Mapp diverted the crime lab away from Saucedo’s gun by directing the 

crime lab to test Merritt’s gun first. (Exhibit 12).

22. Kalkowski never compared test fires from Saucedo’s gun to the evidentiary 

bullets. (Exhibit 13, Deposition of Kalkowski at 123:9-20; 133:24-134:3).

23. According to the prosecutor who handled Merritt’s case, DPS Sgt. Tony Mapp 

(the supervisor over the investigation) lied to her and told her LPR’s were not used 

in the Freeway Shooter Investigation, although he received two reports (Exhibits 6 

and 7) demonstrating that they were. (Exhibit 14, Deposition of Cuevas at 123:6-14).

Applicable Law and Argument

Probable cause depends on the objective facts and circumstances of an 

arrest. United States v. Cannon, 29 F.3d 472, 476 (9th Cir. 1994). The 

“standard of probable cause is not a subjective standard but an objective one.” 

State v. Vaughn, 471 P.2d 744, 746 (Ariz.Ct.App.1970); see Whren v. United 

States, 517 U.S. 806, 813, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996). The officer's 

subjective opinion is, therefore, not material. Id. A police officer, however, 

“may not disregard facts tending to dissipate probable cause,” United States 

v. Ortiz-Hernandez, 427 F.3d 567, 574 (9th Cir. 2005), and he or she “may 

not close her or his eyes to facts that would help clarify the circumstances of 

an arrest.” BeVier v. Hucal, 806 F.2d 123, 128 (7th Cir.1986). “Reasonable 

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avenues of investigation must be pursued. ...” Id. An officer cannot "ignore 

substantial exculpatory evidence" in determining probable cause. Radvansky 

v. City of Olmsted Falls, 395 F.3d 291, 305-06 (6th Cir.2005).

Plaintiff has squarely put at issue whether, before his arrest, the defendant 

had knowledge or information that someone other than the plaintiff committed the 

crimes for which he was arrested. See Doc. 334 at 8:19. The defendant possessed the 

evidence about Aaron Saucedo before Merritt’s arrest, and it is part of the totality of 

the circumstances that would lead a prudent person to investigate further. But in a 

rush to judgment, the defendant arrested the plaintiff without investigating 

Saucedo, despite obvious indicia of his commission of numerous violent crimes. The 

information is relevant under both Rules 401 and 403 to impeach the defendant’s 

claim of having conducted an adequate investigation before arresting the plaintiff 

and, also, to impeach the defendant’s claim of probable cause to arrest.

Conclusion

Because the jury must decide whether, objectively, the defendant had 

probable cause, the evidence known to the defendant about Aaron Saucedo, before 

the plaintiff’s arrest, is highly relevant and admissible under Rule 401 and 403. And 

while such evidence may be potentially harmful to the defendant’s claims, it has 

previously conceded that “Not all harmful evidence, however, is unfairly 

prejudicial.” State v. Mott, 931 P.2d 1046, 1055-56 (Ariz.1997). (Doc 302 at 3-7:9). 

The Court should deny the defendant’s Seventh Motion In Limine.

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DATED THIS 2nd day of March 2020.

/s/ Jason D. Lamm

Jason D. Lamm

Attorney for Plaintiff Leslie Merritt, Jr.

CERTIFICATE OF SERVICE

I certify that on this 2nd day of March 2020 I electronically transmitted the 

attached document to the Clerk’s Office using the CM/ECF system for filing and 

transmittal of a Notice of Electronic Filing to the following CM/ECF registrants:

Clerk of the Court

United States District Court, District of Arizona

Sandra Day O’Connor Courthouse

401 W. Washington St.

Phoenix, AZ 85003

Edward F. Novak, Esq.

Melissa Ho, Esq.

Jonathan G. Brinson, Esq.

Andrew Fox, Esq.

Polsinelli PC

One East Washington Street, Suite 1200

Phoenix, AZ 85004

enovak@polsinelli.com; mho@polsinelli.com, jbrinson@polsinelli.com

Attorneys for Defendant State of Arizona, Heston Silbert, Christopher Kalkowski, 

Frank Milstead, Ken Hunter, Kelly M. Heape, Jennifer Pinnow, Anthony Falcone

By: /s/ Kathryn A. Miller

Kathryn A. Miller

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