Opinion
1 CA-CV 24-0106
12-12-2024
GARY KAPLAN, Plaintiff/Appellant, v. PAUL PENZONE, Defendant/Appellee.
Law Office of David J. Don PLLC, Phoenix By David J. Don Counsel for Plaintiff/Appellant Struck Love Bojanowski &Acedo, PLC, Chandler By Daniel P. Struck, Nicholas D. Acedo, Ashlee B. Hesman, Kristina Rood Counsel for Defendant/Appellee
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. CV2021-015581 The Honorable Danielle J. Viola, Judge
Law Office of David J. Don PLLC, Phoenix By David J. Don Counsel for Plaintiff/Appellant
Struck Love Bojanowski &Acedo, PLC, Chandler By Daniel P. Struck, Nicholas D. Acedo, Ashlee B. Hesman, Kristina Rood Counsel for Defendant/Appellee
Judge David D. Weinzweig delivered the decision of the Court, in which Presiding Judge Brian Y. Furuya and Judge James B. Morse Jr. joined.
MEMORANDUM DECISION
WEINZWEIG, JUDGE
¶1 Gary Kaplan appeals the superior court's order granting summary judgment to Maricopa County Sheriff Paul Penzone on claims of false arrest and false imprisonment. Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Kim (pseudonym) accused her boyfriend of assault in 2020 and reported him to the Maricopa County Sheriff's Office ("MCSO"), where Kaplan was a detective. Kaplan was assigned to investigate Kim's allegations. During his investigation, Kaplan twice had sexual relations with Kim.
¶3 Kim later claimed she was raped by an unknown MCSO detective and her boyfriend contacted law enforcement. MCSO investigated the boyfriend's report and learned about the sexual relationship between Kim and Kaplan.
¶4 MCSO determined it had probable cause to arrest Kaplan for violating A.R.S. § 13-1412(A), which prohibits a peace officer from knowingly engaging in sexual contact with the "subject of an investigation." MCSO prepared a sworn probable cause statement for the offense and arrested Kaplan without a warrant. Kaplan was released from jail after an initial appearance.
¶5 The next day, MCSO applied for a search warrant based on the same facts used to arrest Kaplan. The superior court granted that search warrant, finding probable cause to believe Kaplan violated § 13-1412(A).
¶6 The Maricopa County Attorney's Office ("MCAO") declined to prosecute Kaplan because it believed the statute did not cover his actions. MCAO interpreted § 13-1412(A) to only prohibit sexual relations between a detective and the person "suspected of criminal activity."
¶7 Kaplan sued Penzone for false arrest and false imprisonment. Kaplan and Penzone filed dueling motions for summary judgment on whether MCSO had probable cause to arrest Kaplan under § 13-1412(A). The superior court ruled for Penzone, finding that § 13-1412(A) was ambiguous and MCSO's interpretation was objectively reasonable. Kaplan timely appealed. We have jurisdiction. A.R.S. § 12-2101(A)(1).
DISCUSSION
¶8 We review the grant of summary judgment de novo, and view the facts and all reasonable inferences in the light most favorable to the nonmoving party. See, e.g., Espinoza v. Schulenburg, 212 Ariz. 215, 216, ¶ 6 (2006). Summary judgment is appropriate if "there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law." Ariz. R. Civ. P. 56(a). We interpret statutes de novo, too, seeking to "determine the plain meaning of the words the legislature chose to use, viewed in their broader statutory context." See Columbus Life Ins. Co. v. Wilmington Tr., N.A., 255 Ariz. 382, 385, ¶ 11 (2023). Whether probable cause exists is a question of law for the court. See Cullison v. City of Peoria, 120 Ariz. 165, 168 (1978).
¶9 To prevail on his claims for false arrest and false imprisonment, Kaplan must show he was detained "without his consent and without lawful authority." Slade v. City of Phoenix, 112 Ariz. 298, 300 (1975). A person arrested or detained with probable cause has no claim for false arrest or false imprisonment. Cullison, 120 Ariz. 165, 169-70 (1978).
¶10 A person may be arrested without a warrant if law enforcement has probable cause to believe a "felony has been committed and probable cause to believe the person to be arrested has committed the felony." A.R.S. § 13-3883(A)(1). Probable cause "may exist despite the fact that the charges are subsequently dismissed or the accused is found to be innocent." Hockett v. City of Tucson, 139 Ariz. 317, 320 (App. 1983).
¶11 Arizona law makes it a felony for a detective to "knowingly engag[e] in sexual contact, oral sexual contact or sexual intercourse with any person who is in the officer's custody or a person who the officer knows or has reason to know is the subject of an investigation." A.R.S. § 13-1412(A) (emphasis added).
¶12 Kaplan argues the statute is clear and the "subject of an investigation" is the suspect or target of an investigation, not the crime victim or a witness. MCSO argues the statute is ambiguous because the "subject of an investigation" might reasonably include crime victims or witnesses.
¶13 We need not interpret the statute if we determine that MCSO's interpretation was objectively reasonable, even if a mistake of law. Heien v. North Carolina, 574 U.S. 54, 66 (2014) ("The Fourth Amendment tolerates only reasonable mistakes, and those mistakes-whether of fact or of law-must be objectively reasonable.") (emphasis in original).
¶14 We hold that MCSO's interpretation of § 13-1412(A) was objectively reasonable for five reasons. First, just two days after Kaplan's arrest, a superior court judge interpreted the word "subject" to cover crime victims, finding probable cause and granting a search warrant based on facts available to MCSO when it arrested Kaplan. Kaplan does not contend that judge was biased or unreasonable. Because a trial judge made the same legal interpretation challenged here, we cannot say that MCSO's interpretation was objectively unreasonable. Cf. Messerschmidt v. Millender, 565 U.S. 535, 546 (2012) ("Where the alleged Fourth Amendment violation involves a search or seizure pursuant to a warrant, the fact that a neutral magistrate has issued a warrant is the clearest indication that the officers acted in an objectively reasonable manner or, as we have sometimes put it, in 'objective good faith.'" (citing United States v. Leon, 468 U.S. 897, 922-23 (1984)).
¶15 Second, the statute is ambiguous. The statute does not define "subject" or "subject of an investigation." We must construe words and phrases "according to the common and approved use of the language." A.R.S. § 1-213. Penzone interprets the "subject of an investigation" to include the subject of any inquiry within the overall criminal investigation, and that interpretation is supported by the dictionary definitions of "subject" and "investigation." American Heritage Dictionary (5th ed. 2011) (defining "subject" as "[o]ne that experiences or is subjected to something" and "investigation" as "[a] careful examination or search in order to discover facts or gain information"). Applied here, it was objectively reasonable for MCSO to conclude the "subject of an investigation" includes suspects and crime victims because both groups are subject to the search for facts and information.
¶16 Third, Arizona courts had not interpreted the scope of "subject" under § 13-1412 before MCSO arrested Kaplan. See Heien, 574 U.S. at 64 (recognizing that when the defendant was arrested, courts had not yet interpreted the relevant statute as unconstitutional).
¶17 Fourth, unlike here, Arizona law uses the word "suspect" elsewhere in the criminal code. See, e.g., A.R.S. §§ 13-410(B), -2413(D) and -4405.
¶18 Fifth, it is reasonable to think that Arizona law would prohibit criminal investigators from having sexual relations with crime victims. Cf. Sylvester v. Fogley, 465 F.3d 851, 859 (8th Cir. 2006) ("[W]e conclude that a police force has a compelling interest in precluding a criminal investigator from having sexual relations with witnesses or victims involved in an underlying criminal investigation."). A criminal investigator who sleeps with the crime victim of his investigation sexually exploits that victim, undermines the public's respect and trust of the criminal justice system, and compromises the prosecution of the target. Id. ("If a criminal investigator freely engaged in sexual relations with the victims and witnesses involved in the underlying investigation, claims by criminal defendants of unreliable evidence and false accusations would be plentiful.").
¶19 We are unpersuaded by Kaplan's other arguments. First, Kaplan argues the rule of lenity compels us to read § 13-1412(A) narrowly. That argument misses the mark. The issue is whether MCSO's interpretation of the statute was objectively reasonable. Because it was, we affirm. Second, Kaplan argues the superior court improperly considered post-arrest evidence at summary judgment to find probable cause, citing Reams v. City of Tucson, 145 Ariz. 340 (App. 1985). We disagree. The court considered the post-arrest search warrant only to determine whether MCSO's legal interpretation of § 13-1412(A) was objectively reasonable. In Reams, the superior court was reversed after it admitted evidence of a subsequent indictment in a jury trial for false arrest.
CONCLUSION
¶20 We affirm. Penzone is awarded his reasonable costs upon compliance with ARCAP 21.