Opinion
No. 1 CA-CV 15-0767
12-30-2016
ERICA RAHN, an individual, Plaintiff/Appellant, v. CITY OF SCOTTSDALE, Defendant/Appellee.
COUNSEL Robbins & Curtin PLLC, Phoenix By Joel B. Robbins Counsel for Plaintiff/Appellant Holloway Odegard & Kelly PC, Phoenix By Peter C. Kelly, II and Jesse M. Showalter Counsel for Defendant/Appellee
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CV2012-017693
The Honorable David B. Gass, Judge
AFFIRMED
COUNSEL Robbins & Curtin PLLC, Phoenix
By Joel B. Robbins
Counsel for Plaintiff/Appellant Holloway Odegard & Kelly PC, Phoenix
By Peter C. Kelly, II and Jesse M. Showalter
Counsel for Defendant/Appellee
MEMORANDUM DECISION
Presiding Judge Andrew W. Gould delivered the decision of the Court, in which Judge Peter B. Swann and Judge Patricia A. Orozco joined. GOULD, Judge:
¶1 Appellant Erica Rahn appeals the superior court's order granting summary judgment in favor of Appellee City of Scottsdale. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
We view the facts in the light most favorable to the party against whom summary judgment was entered. First Am. Title Ins. Co. v. Johnson Bank, 239 Ariz. 348, 350, ¶ 8 (2016).
¶2 In September 2011, police were investigating Rahn's husband, Justin Rahn ("Justin"), for operating an illegal telemarketing business; police suspected the business had defrauded several individuals. On September 28, 2011, police spoke with Justin. Although Justin claimed that his telemarketing business was legal, he admitted that he had not registered the business, nor posted a bond. Based on this information, police had probable cause to believe Justin had violated Arizona Revised Statutes ("A.R.S") sections 44-1277 and 44-1272, which provide it is a class 5 felony to run an unregistered and unbonded telemarketing company.
¶3 On October 6, 2011, police executed a search warrant at Justin's business offices. Police arrested Justin, and he was charged with fraudulent schemes, unlawful telephonic solicitation, and first-degree money laundering. He was released the next day, October 7, 2011.
¶4 On October 13, 2011, police discovered that on the day Justin was released from jail, $70,000 in cash had been withdrawn from one of his business accounts. Police were concerned Justin had withdrawn the money to prevent it from being seized as part of their investigation. As a result, the police obtained a search warrant for Justin's residence.
¶5 On October 13, 2011, officers executed a search warrant at the Rahns' home. Rahn was present during the execution of the warrant, and police spoke with her about Justin's telemarketing business. Rahn stated that she did not talk to her husband about his work and did not care about it, but she knew he owned a telemarketing business and that he sold "business opportunities" or "biz ops." She stated her husband had told her the police were "cracking down on biz ops," and that his company was one of the businesses they were investigating. She also knew Justin's business had been "raided" twice, and that he had been arrested during the second raid.
¶6 The officers asked Rahn whether she knew about the large sums of money that had recently been withdrawn from Justin's business accounts. Rahn stated that on the day Justin was arrested, she withdrew cash from their savings account because "he told me if anything happened I needed to take it out." When asked how much she withdrew, she stated she did not know the amount. The officers asked Rahn several more times how much she had taken out, but she would only say "less than a hundred thousand." Rahn also told the officers that she only worked part-time, and that her mortgage was paid from one of the joint accounts she shared with Justin; she stated Justin deposited his "money" into the account.
¶7 An officer then advised Rahn of her Miranda rights, and continued questioning her about the bank withdrawal. Rahn said that she withdrew the funds at her husband's direction, and that there was a mutual understanding between them that if something happened to him, she should take the money out. Rahn stated she withdrew the money because "[Justin] was worried that things would get like - everything would get seized. Like his work." She continued her explanation, stating "'Cause they were investigating everything about him. So when you do that you're gonna look at all these different things. He was worried that he wouldn't be able to take care of his family, pay the bills if anything happened to him." She then explained that she put the cash in her truck, and when Justin was released from jail, she told him about the location of the money and the truck. Although she did not see Justin take the money from the truck, she was sure he took it.
¶8 Based on her statements, police arrested Rahn. She was released from jail later that day.
¶9 An officer testified before a grand jury against Rahn and Justin on November 8, 2011. The grand jury indicted Rahn for money laundering in the second degree, a class 3 felony, and hindering prosecution in the first degree, a class 5 felony. Pursuant to the grand jury indictment, the court issued a warrant for her arrest. Rahn was arrested on November 30, 2011, and released from jail three days later.
¶10 In June 2012, the superior court granted the State's motion to dismiss the charges against Rahn without prejudice. On October 1, 2012, Justin and another individual, in their capacity as "Representative(s) of Global Fortune Network," signed a plea agreement. Under the plea agreement, the company agreed to plead guilty to attempted unlawful telephone solicitation, a class 1 misdemeanor, and pay approximately $64,000 in restitution to the victims.
¶11 After the case was dismissed, Rahn filed a complaint against the City of Scottsdale for the actions of its police officers, alleging causes of action for wrongful arrest, malicious prosecution, abuse of process, and false light invasion of privacy. The City moved for summary judgment on all causes of action, and the court granted the motion. The court based its ruling on its finding that the police had probable cause to arrest Rahn for both hindering prosecution and money laundering. Rahn timely appealed.
In its ruling, the court determined that Rahn waived her false light claim because she did not address it in her Response to the City's motion. Rahn does not challenge the court's dismissal of this claim on appeal. --------
DISCUSSION
¶12 Rahn argues the superior court erred in granting the City's motion for summary judgment on her claims of wrongful arrest, malicious prosecution, and abuse of process.
¶13 Summary judgment is appropriate "if the moving party shows that 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); see Torrez v. Knowlton, 205 Ariz. 550, 551, ¶ 2 (App. 2003) (citation omitted). We review a trial court's granting of summary judgment de novo, and view the facts in the light most favorable to the party against whom judgment was entered. First Am. Title Ins. Co. v. Johnson Bank, 239 Ariz. 348, 350, ¶ 8 (2016) (citations omitted). But, we will affirm summary judgment if it is correct for any reason. S & S Paving & Const., Inc. v. Berkley Reg'l Ins. Co., 239 Ariz. 512, 514, ¶ 7 (App. 2016) (citation omitted). I. Wrongful Arrest
¶14 Rahn contends the superior court erred in granting summary judgment on her claim of wrongful arrest because the police lacked probable cause to arrest her on both October 13, 2011, and on November 30, 2011.
¶15 Wrongful arrest occurs "when a person is unlawfully detained without consent." Torrez, 205 Ariz. at 552, ¶ 4. However, an officer is not liable for wrongful arrest if he had probable cause to make the arrest. Hockett v. City of Tucson, 139 Ariz. 317, 320 (App. 1983) (citations omitted). Because a claim for wrongful arrest turns on the validity of the arrest, and "not on the validity of each individual charge made during the course of the arrest," if there is probable cause supporting any of the charges, the claim fails. Lacy v. Cty of Maricopa, 631 F. Supp. 2d 1183, 1194 (D. Ariz. 2008) (citations omitted).
¶16 To make a warrantless arrest, an officer "must have probable cause to believe both that a crime has been committed and that the person to be arrested committed the crime." State v. Keener, 206 Ariz. 29, 32, ¶ 15 (App. 2003). Probable cause is "a flexible, nontechnical, and practical concept," id. at ¶¶ 15-16 (citing Gerstein v. Pugh, 420 U.S. 103, 112, (1975)), and "does not demand the certainty we associate with formal trials," or "finely tuned standards such as proof beyond a reasonable doubt or [] a preponderance of the evidence." Illinois v. Gates, 462 U.S. 213, 235, 246 (1983); State v. Sisco, 239 Ariz. 532, 535, ¶ 8 (2016) (citations omitted); see also State v. Aleman, 210 Ariz. 232, 238, ¶ 15 (App. 2005). Rather, when assessing whether probable cause to arrest exists, courts deal with probabilities, which are not technical; such probabilities involve factual and practical considerations of everyday life on which reasonable and prudent people, not legal technicians, act. State v. Moran, 232 Ariz. 528, 532, ¶ 10 (App. 2013) (citations omitted).
¶17 Probable cause is defined as "reasonably trustworthy information and circumstances [that] would lead a person of reasonable caution to believe that a suspect has committed an offense." Keener, 206 Ariz. at 32, ¶ 15 (citation omitted). Whether probable cause existed at the time of arrest depends on the facts and circumstances known at the time, including the collective knowledge of all of the officers involved in the case. Id. (citing State v. Lawson, 144 Ariz. 547, 553 (1985)). In addition, an officer is not required to have probable cause regarding each element of a crime to make an arrest. Gasho v. United States, 39 F.3d 1420, 1428 (9th Cir. 1994) (holding probable cause for arrest does not require an officer to have probable cause for every element of the offense).
A. October 13 Arrest
¶18 Rahn was arrested for hindering prosecution on October 13. Under A.R.S. § 13-2512 (2016), "[a] person commits hindering prosecution in the first degree if, with the intent to hinder the apprehension, prosecution, conviction or punishment of another for any felony, the person renders assistance to the other person." "Rendering assistance" includes "knowingly . . . [p]roviding the other person with money" or "[s]uppressing by an act of concealment . . . any physical evidence that might aid in the . . . prosecution or conviction of the other person." A.R.S. § 13-2510.
¶19 Based on the record, the police had probable cause to arrest Rahn for hindering their investigation of Justin's telemarketing business. Rahn told police she knew they were investigating Justin's business, and that his business had been "raided" twice. She admitted that on the day Justin was arrested, she withdrew $70,000 from their joint savings account because he was afraid the money might be "seized" by the police. Based on Justin's direction, she withdrew the money and placed it in a truck so that it was available to him when he was released from jail.
B. November 30 Arrest
¶20 After Rahn was indicted, she was arrested for hindering prosecution pursuant to an arrest warrant on November 30. Rahn argues that the arrest warrant lacked probable cause, and was therefore wrongful, because the officer who testified to the grand jury presented false and misleading testimony.
¶21 We reject Rahn's argument. The November 30 arrest was made pursuant to a valid arrest warrant after she was indicted by a grand jury. If an arrest "occur[s] pursuant to valid legal process, the fact that the action was procured maliciously and without probable cause" does not constitute wrongful arrest. Slade v. City of Phoenix, 112 Ariz. 298, 300 (1975) (citations omitted). Rather, "the proper remedy under such circumstances is an action for malicious prosecution." Id. (citations omitted).
¶22 Accordingly, we affirm the superior court's summary judgment order dismissing Rahn's claim for wrongful arrest. II. Malicious Prosecution
¶23 Rahn contends the superior court erred in granting summary judgment on her claim of malicious prosecution because the officer who testified before the grand jury gave false and misleading testimony. She argues the officer misled the grand jury by (1) stating Rahn withdrew the money from a business account when she had told the officers that it was from their savings account, (2) implying the term "biz ops" necessarily involved criminal activity, and (3) stating Rahn did not give "the real proper name" of her husband's business when she actually told the officers that she did not know the name of the business.
¶24 "The essential elements of malicious prosecution are (1) a criminal prosecution, (2) that terminates in favor of plaintiff, (3) with defendants as prosecutors, (4) actuated by malice, (5) without probable cause, and (6) causing damages." Slade, 112 Ariz. at 300 (citation omitted); see Bird v. Rothman, 128 Ariz. 599, 602 (App. 1981). Probable cause to institute the prosecution is "a complete and absolute defense." Slade, 112 Ariz. at 301 (citation omitted).
¶25 Rahn's claim for malicious prosecution fails. The police had probable cause to arrest Rahn on October 13; there was no material change in the evidence supporting probable cause prior to the grand jury proceeding. In short, despite the officer's allegedly inaccurate grand jury testimony, police had the same probable cause to pursue an indictment on November 8 as they had on October 13. See supra ¶¶ 18-22. We find no error. III. Abuse of Process
¶26 Rahn also contends the superior court erred in granting summary judgment on her abuse of process claim. Specifically, Rahn argues that based on the lack of probable cause to arrest her, the officer's misleading testimony to the grand jury, and the State's weak case against Justin, a jury could reasonably have concluded police arrested and pursued charges against her to "extort" a guilty plea from Justin.
¶27 The elements of an abuse-of-process claim are "(1) a willful act in the use of judicial process; (2) for an ulterior purpose not proper in the regular conduct of the proceedings." Crackel v. Allstate Ins. Co., 208 Ariz. 252, 257, ¶ 11 (App. 2004) (citation omitted). The term "process" is "limited to an act done under the authority of a court," and includes the "entire range of procedures" available under the legal process. Id. at 271, ¶ 69; Nienstedt v. Wetzel, 133 Ariz. 348, 352 (App. 1982).
¶28 To establish an ulterior motive, a claimant "must present more than mere speculation to support the assertion that the defendant has used court processes with an improper intent." Crackel, 208 Ariz. at 259, ¶ 18 (citation omitted). In addition, the claimant must also "show that the defendant's improper purpose was the primary motivation for its actions, not merely an incidental motivation." Id. (citation omitted). Moreover, the claimant must show that the defendant's actions "could not logically be explained without reference to the defendant's improper motives." Id. at 259, ¶ 19 (emphasis added).
¶29 Here, the police officers had probable cause to arrest Rahn at her home for hindering prosecution, and to pursue an indictment before the grand jury. Supra ¶¶ 18-22, 25. Therefore, the officers' actions can be "logically explained" apart from any alleged ulterior purpose of using Rahn to extort a guilty plea from Justin. See Crackel, 208 Ariz. at 259, ¶ 19.
¶30 Consequently, the superior court did not err in granting summary judgment on Rahn's abuse of process claim.
CONCLUSION
¶31 For the above reasons, we affirm the superior court's order granting summary judgment in favor of the City.