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Edward F. Novak (#006092) 

enovak@polsinelli.com 

Melissa Ho (#023269) 

mho@polsinelli.com 

Jonathan G. Brinson (#025045) 

jbrinson@polsinelli.com 

Andrew T. Fox (#034581) 

afox@polsinelli.com 

POLSINELLI PC 

CityScape 

One East Washington Street, Suite 1200 

Phoenix, AZ 85004 

Phone: (602) 650-2000 │ Fax: (602) 264-7033 

Attorneys for Defendants State of Arizona, Silbert,

Kalkowski, Milstead, Hunter, Heape, Pinnow, and Falcone 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Leslie A Merritt, Jr., a single man, 

Plaintiff, 

vs. 

State of Arizona, a body politic; Bill 

Montgomery, the elected Maricopa 

County Attorney, in his official and 

individual capacities; Maricopa County, 

a body politic; Heston Silbert, in his 

individual capacity; Christopher 

Kalkowski, in his individual capacity; 

Frank Milstead, in his individual 

capacity; Ken Hunter, in his individual 

capacity; Kelly M. Heape, in his 

individual capacity; Jennifer Pinnow, in 

her individual capacity, Anthony 

Falcone, in his individual capacity; 

Edward Leiter, in his individual 

capacity; Vanessa Losicco, in her 

individual capacity. 

Defendants. 

Case No. CV17-4540-PHX-DGC 

DEFENDANT STATE OF ARIZONA’S 

MOTION IN LIMINE (THIRD): RE 

DISMISSAL OF CRIMINAL CHARGES 

AND DURATION OF DETENTION 
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The primary issue at trial is whether Defendant’s Officers had probable cause to 

arrest Leslie Merritt Jr. The jury must determine, based on the evidence presented, whether 

the circumstances confronting the investigating DPS officers established probable cause to 

arrest Merritt. The Maricopa County Attorney’s Office’s (“MCAO”) subsequent decision 

to dismiss charges against Merritt is not relevant to whether probable cause existed at the 

time of arrest. “Since probable cause for a warrantless arrest is determined in terms of the 

circumstances confronting the arresting officer at the time of seizure, the validity of such an 

arrest is not undermined by subsequent events in the suspect’s criminal prosecution, such as 

dismissal of charges or acquittal.” Pino v. Higgs, 75 F.3d 1461, 1469 (10th Cir. 1996) 

(citing Summers v. Utah, 927 F.2d 1165, 1166-67 (10th Cir. 1991)). 

 Given the conceptual separation between probable cause and guilt, the fact that a 

prosecutor elected to drop the charges does not make it more or less probable that the 

arresting officers had probable cause for an arrest. See, e.g., Borunda v. Richmond, 885 

F.2d 1384, 1387-88 (9th Cir. 1988) (citing S. Gard, 2 Jones on Evidence § 12:25, at 391 

(6th ed. 1972)) (“Evidence of an acquittal is not generally admissible in a subsequent civil 

action between the same parties since it constitutes a ‘negative sort of conclusion lodged in 

a finding of failure of the prosecution to sustain the burden of proof beyond a reasonable 

doubt.’”); See Wisler v. City of Fresno, No. CV F 06–1694 AWI SMS, 2008 WL 2880442, 

*2 (E.D. Cal. July 22, 2008) (“Considering the multitude of reasons why the district 

attorney may have been willing to dismiss the assault charge and the unnecessary 

expenditure of time that would be necessary to discuss the criminal justice system, the 

probative value of the dismissal is substantially outweighed by its unfair prejudice to 

Defendants and the undue consumption of Court time.”). That is to say, “[t]he state’s 

failure to prove guilt beyond a reasonable doubt does not mean in connection with the 

arrests that it did not meet the lesser probable cause standard—a reasonable belief that an 

offense has been committed and that the criminal defendant committed the crime.” 

Borunda, 885 F.2d at 1389 (citing United States v. Moses, 796 F.2d 281, 283 (9th Cir. 

1986)). 
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 Even assuming evidence of the MCAO’s dismissal is relevant—which it is not—the 

danger of unfair prejudice and confusion of the issues substantially outweighs its probative 

value. See Fed. R. Evid. 403. Armed with the knowledge that the charges against Merritt 

were subsequently dropped, the jury might improperly infer that the arresting officers 

should not have arrested Merritt. Such an inference would be unduly prejudicial to 

Defendant because probable cause depends on the circumstances known to the officers at 

the time of the arrest. Similarly, knowledge of the dismissed charges may cause juror 

confusion. Jurors may confuse the question whether Merritt was actually guilty of the 

crimes for which he was arrested with the true standard of probable cause—whether the 

facts and circumstances within the officers’ knowledge were sufficient to constitute 

probable cause.1

 Likewise, the date of Merritt’s release is likely to confuse the jury given the Court’s 

limit of damages to the six-day window between arrest and grand jury indictment. The 

Court has already limited the period of damages to six day. (Doc. 278 (“Plaintiff’s damages 

on the arrest-related claims [] will be limited to the period between Plaintiff’s arrest on 

September 18, 2015, and his indictment on September 24, 2015.”).) Any mention of 

Merritt’s period of detention beyond those six days is unduly prejudicial, likely to confuse 

the issues, and mislead the jury. 

 Accordingly, the State requests the following order: The Parties are precluded from 

arguing or introducing evidence regarding MCAO’s dismissal of charges against Leslie 

 

1

 In Borunda, the Ninth Circuit found that the trial court did not abuse its discretion in 

allowing evidence of the plaintiffs’ acquittals “solely for the purpose of showing that the 

plaintiffs incurred damages in the form of attorneys’ fees in successfully defending against 

the state criminal charges.” 885 F.2d at 1388. Here, unlike in Borunda, Plaintiff has never 

identified attorney’s fees as part of his claim for damages. Moreover, the Ninth Circuit 

observed that, even for that limited purpose, the potential for prejudice was “not 

insubstantial” and that the trial court “must exercise great care in formulating appropriate 

limiting instructions if it chooses to venture forth into this hazardous area.” Id. at 1389. 

There is even greater danger in this case, where Plaintiff has no purpose to introduce the 

dismissal other than to confuse the issues on liability. 

 
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Merritt Jr or that Merritt was never convicted. The Parties are also precluded from arguing 

or introducing evidence regarding Merritt’s date of release from custody or the duration of 

his detention.2 

 RESPECTFULLY SUBMITTED this 27th day of February, 2020. 

POLSINELLI PC 

By: /s/ Jonathan G. Brinson 

Edward F. Novak 

Melissa Ho 

Jonathan G. Brinson 

Andrew T. Fox 

One E. Washington Street, Suite 1200 

Phoenix, AZ 85004 

Attorneys for Defendant State of Arizona 

 

2

 The State has complied with LRCiv. 7.2(l), and certifies that it had a meet and confer in an 

effort to resolve the disputed evidentiary issue. 
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CERTIFICATE OF SERVICE 

 I hereby certify that on this 27th day of February, 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 Street 

Phoenix, AZ 85003 

Jason D. Lamm 

Law Office of Jason Lamm 

2501 N. Seventh Street 

Phoenix, Arizona 85006 

jlamm@cyberlawaz.com 

 By: /s/ Erika Cano