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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Leslie A. Merritt, Jr.,

Plaintiff,

v. 

State of Arizona, et al.,

Defendants.

No. CV-17-04540-PHX-DGC

ORDER 

The Court held an extended conference call with the parties on October 15, 2020, 

on the record, regarding the admissibility of evidence that Plaintiff made a phone call to 

his grandfather from Glendale, Arizona, at 11:04 a.m. on August 29, 2015 (the “Subject 

Call”). Plaintiff asserts that the call is exculpatory because it was made between two of 

the alleged freeway shootings that day – one at 11:03 a.m. and the other at 11:05 a.m. – and 

could not have been made if he was the shooter. Plaintiff seeks to admit evidence of the 

call to support his assertion that Defendant lacked probable cause to arrest him at 6:47 p.m. 

on September 18, 2015. Defendant denies that it knew of the Subject Call when it arrested 

Plaintiff. 

Because the existence of probable cause and the validity of Plaintiff’s arrest must 

be based on information known to arresting officers at the time of the arrest, the Court 

concluded during the conference call that evidence of the Subject Call would be relevant 

only if Plaintiff could present evidence sufficient to support a reasonable jury finding that 

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Defendant knew of the Subject Call at the time of the arrest. If Plaintiff cannot show that 

Defendant knew of the call, then the call is not relevant to whether Defendant had probable 

cause at the time of the arrest. Both parties agreed with this conclusion. 

The Court’s conclusion aligns with Federal Rule of Evidence 104. That rule 

provides that “[t]he court must decide any preliminary question about whether . . . evidence 

is admissible.” Fed. R. Evid. 104(a). “When the relevance of evidence depends on whether 

a fact exists” – in this case, whether Defendant knew of the Subject Call at the time of 

Plaintiff’s arrest – “proof must be introduced sufficient to support a finding that the fact 

does exist.” Id. 104(b) (emphasis added). The Supreme Court has explained how this rule

is to be applied: 

the trial court neither weighs credibility nor makes a finding that the 

[proponent of the evidence] has proved the conditional fact by a 

preponderance of the evidence. The court simply examines all the evidence 

in the case and decides whether the jury could reasonably find the conditional 

fact . . . by a preponderance of the evidence.

Huddleston v. United States, 485 U.S. 681, 690 (1988).

The Court accordingly set a schedule for the parties to present all evidence on 

whether Defendant knew of the Subject Call at or before 6:47 p.m. on September 18, 2020. 

The parties have completed that briefing. Docs. 429, 431, 434. The Court concludes that 

Plaintiff has satisfied the factual predicate needed to make the Subject Call relevant to his 

false arrest claim. The Court will rule on any other objections to the evidence at trial.

The Court will address each item of evidence and provide a conclusion at the end.

1. Plaintiff presents evidence that Defendant, on September 9, 2015, received a 

“cell tower dump” showing mobile phone traffic “within a five-mile radius of various 

freeway shootings at the approximate time of their occurrence.” Doc. 429 at 3. Plaintiff 

asserts that his cell number – 480-532-3937 – was not in the cell tower dump. Id. at 4. He 

further asserts that once Defendant learned his cell number, it “knew that his phone was 

not near the scene of the shootings.” Id. at 4. But even if these assertions are true, they do 

not show that Defendant knew of the Subject Call from Glendale on August 29, 2015. 

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Plaintiff does not assert that the Glendale location of the call was in the area covered by 

the cell tower dump.

2. Plaintiff asserts that on September 10, 2015, Detective Falcone applied for 

another cell tower dump that “primarily duplicated the data produced on 

September 9, 2015,” but added the BMW shooting. Id. at 5. Plaintiff again argues that 

“when the Defendant learned of Plaintiff’s phone number before his arrest, [it] also knew 

that his phone was not near the scene of the BMW shooting.” Id. Again, this evidence 

does not show that Defendant knew of the Subject Call from Glendale on August 29, 2015.

3. Plaintiff cites a log maintained by Defendant on the day of his arrest, 

September 18, 2015. See Doc. 429-2. Plaintiff notes that an entry at 9:25 a.m. includes 

his phone number, showing that Defendant had the number by that time. Id. at 4. Plaintiff 

highlights an entry at 12:17 p.m. which states that “480 POS phone [h]as not been turned 

on all day per Verizon.” Id. at 6. Plaintiff argues that this entry shows Defendant was 

monitoring the use of his phone that day, knew the phone had a Verizon account, and knew 

it was an inexpensive flip phone, suggesting that Defendant had obtained additional 

information about the phone from Verizon.

1

 

Plaintiff particularly focuses on an entry at 1:22 p.m. indicating that Sergeant Mapp, 

one of the investigators, had “rec’d records on 480 and going through it now.” Id. at 7. 

Plaintiff argues that his phone number was the only 480 number being investigated

(something Defendant does not dispute), so this entry had to relate to his phone. He asserts 

that Mapp was reviewing records of his calls at this time. 

Defendant responds that Plaintiff has no information about what records Mapp was 

reviewing. (Plaintiff notes in reply that Defendant has never produced the documents 

Mapp was reviewing.) Defendant argues that Plaintiff does not cite any deposition 

testimony from Mapp confirming Plaintiff’s assertion that the records being reviewed by 

1 Plaintiff asserts that the acronym “POS” means “piece of sh-t,” reflecting that 

officers working the case knew Plaintiff had an inexpensive flip phone. Plaintiff provides 

no citation for this assertion, but Defendant does not dispute it. See Doc. 431.

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Mapp included the Subject Call. Defendant asserts that nothing in the log indicates Mapp 

was looking at historical call records, rather than current records for Plaintiff’s phone. 

4. Plaintiff cites a one-page document from Verizon Wireless, titled 

Surveillance Confirmation Form, dated September 18, 2015. The document shows a 

request by ATF Special Agent Livingstone for location information related to the phone. 

Doc. 429-5 at 2. The form includes a time entry of 3:38 p.m. Plaintiff asserts that this 

shows Defendants had location information for his phone on the day of his arrest.

Defendant assets that the form reflects real time surveillance of Plaintiff’s phone. 

Defendant notes, for example, that the information is “PR/TT.” Id. Defendant asserts, 

without citation to evidence, that this refers to a pen register/trap and trace investigation, 

which obtains only real time call information. Defendant asserts that this real time 

monitoring of Plaintiff’s phone would have been the reason agents could say the phone had 

not been turned on by mid-day, and that it does not show Defendant had any historical 

information that would include the Subject Call. 

5. Plaintiff asserts that Phoenix Police Commander Edward DeCastro, who was 

also working on the investigation, went to Defendant’s Emergency Operations Center on 

September 18, 2015. DeCastro testified that he spoke with Lieutenant Colonel Ken 

Hunter. Although he was somewhat uncertain on everything he was told and by whom, he 

remembered learning that the investigators had identified the gun used in the shootings. 

Doc. 434-3 at 3-4. He further testified: “They said that they had something about GPS on 

the car, I believe, or phone on the – and that they were in the process of trying to establish 

some sort of surveillance on him and anybody else that was involved. And ‘him’ being 

Merritt.” Id. at 4. He later clarified: “I was told that they had GPS on his phone that –

that put him near the scenes, I believe, is what the – is what they said.” Id. at 5.

Plaintiff asserts that this testimony shows Defendant, on the day of his arrest, had 

location information from his phone. There are two problems with this argument. First, 

DeCastro does not say that Defendant had historical call information, only that it had GPS 

information. Even if true, this does not show that Defendant knew of the Subject Call from

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August 29, 2015. Second, the information DeCastro recalled appears to be incorrect. 

Plaintiff himself notes that the cell tower data obtained near the freeway shooting sites did 

not include his phone. Thus, it appears Defendant did not have GPS data placing his phone 

near the shootings. And even if it did, such evidence would say nothing about the Subject 

Call.

6. Plaintiff cites a report completed by FBI Special Agent Geoffrey Young, 

which specifically addressed the location of the Subject Call. See Doc. 429-10. But 

Plaintiff himself asserts that “[t]he report was dated Tuesday, September 22, 2015,” several 

days after his arrest. Doc. 429 at 8. The report does not show that Agent Young had this 

information before Plaintiff’s arrest.2

7. Plaintiff cites anticipated testimony from his grandfather and aunt who will 

testify about the call he made on August 29, 2015. This evidence, of course, says nothing 

about whether Defendant knew of the call before Plaintiff was arrested.

8. Plaintiff notes that Agent Livingstone obtained a court order on 

September 18, 2015, at 1:56 p.m., which sought “all incoming and outgoing calls” from 

Plaintiff’s phone. Doc. 431-1, Ex. C at 32-33. But the return for this order, signed by the 

judge who issued the order, indicates that Livingstone executed the order on September 19, 

2015, the day after Plaintiff’s arrest. Doc. 431-1 at 59. The return is dated September 22, 

2015. Id. 

Plaintiff attempts to show that the information was actually received on 

September 18, 2015 by citing a screenshot of information provided by Defendant to one of 

its experts. See Doc. 434-2 at 1. The screenshot includes a file name for “Incoming” and 

“Outgoing” cell information that includes the following numbers: 2015_09_18-

14_56_31.291.” Id. Plaintiff surmises that this shows the information was received at 2:56 

p.m. (14:56 hours) on September 18, 2015. 

2 Plaintiff seems to argue that this evidence would at least be admissible to show 

that Defendant had this information during the six-day damages period in this case, which 

spans September 18-24, 2015. But Plaintiff does not develop this argument. He cites no 

authority suggesting that a claim for false arrest can arise midway through an incarceration 

that began with a lawful arrest. If Plaintiff intends to pursue the September 22, 2015

argument, he must present further analysis and authority. 

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Conclusion.

As noted above, the Court’s task is not to weigh the evidence or make credibility 

determinations. The Court must instead decide whether Plaintiff has presented sufficient 

evidence for a reasonable jury to find that Defendant knew of the Subject Call before 6:47 

p.m. on September 18, 2015. 

Much of the evidence presented by Plaintiff – the cell tower dumps, testimony of 

DeCastro, Agent Young’s report, and the testimony of Plaintiff’s grandfather and aunt –

does not support a finding that Defendant knew of the Subject Call before the arrest. 

Evidence that arguably supports such a finding includes the following: Defendant 

had Plaintiff’s cell number on the morning of September 18, 2015; Defendant referred to 

the phone as a “POS” phone, suggesting it had more information about the phone that just 

the 480 number; Sergeant Mapp was reviewing “records” on Plaintiff’s cell number at 1:22 

p.m. that day; Defendant has never disclosed the information Mapp was reviewing, in the 

criminal case or this case; the Surveillance Confirmation Form shows that Defendant was 

obtaining information directly from Verizon on the day of the arrest; and the file name on 

electronic information Defendant later provided to its expert contains numbers that could 

correspond with 2:56 p.m. on September 18, 2015. 

To be sure, this is neither clear nor convincing evidence that Defendant knew of the 

Subject Call before Plaintiff’s arrest. But that is not the test. The Court must determine 

whether any reasonable jury could make such a finding by a preponderance of the evidence. 

Although it is a close question, the Court concludes that a reasonable jury could make such 

a finding. Before Plaintiff’s arrest, Defendant knew his cell number, knew something 

about his phone, was in communication with Verizon, and reviewed “records” about his 

phone that likely came from Verizon and have never been produced by Defendant. 

Depending on the tenor and credibility of other evidence presented during the trial, a

reasonable jury might find from this evidence that Defendant knew of the Subject Call 

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before Plaintiff’s arrest. The Court therefore will not exclude evidence of the Subject Call 

on relevancy grounds.

Dated this 22nd day of October, 2020.

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