Free Response to Motion - District Court of Arizona - Arizona

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TERRY GODDARD Attorney General Lisa Maxie-Mullins State Bar Number: 020883 Assistant Attorney General Transportation Section 1275 West Washington Street Phoenix, Arizona 85007-2926 Phone: (602) 542-1680 Fax: (602) 542-3646 [email protected] Attorney for Arizona Department of Public Safety UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA UNITED STATES OF AMERICA, Case No. CR-04-487-PHX-ROS Plaintiffs, v. TEDDY LEE LOWE, Defendants. Hon. Roslyn Silver The Arizona Department of Public Safety (Department), a non-party to the abovecaptioned matter, by and through undersigned counsel appears and submits its response to the Defendant's Motion for Accelerated Hearing/Ruling on Motion to Quash Subpoena. The Department respectfully requests this Court, pursuant to Fed.R.Crim.P.17(c)(2) to enter an Order quashing the subpoena issued to Teresa Fuentes, Arizona Department of Public Safety Custodian of Records. This request is based on the accompanying Memorandum of Points and Authorities. DEPARTMENT'S RESPONSE TO DEFENDANT'S MOTION FOR ACCELERATED HEARING/RULING ON MOTION TO QUASH SUBPOENA

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1 2 MEMORANDUM OF POINTS AND AUTHORITIES 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 by Defendant is criminal justice information as defined by A.R.S. § 41-1750(Y)(7) because the information is "needed for the performance of their [criminal justice agencies] legally authorized and required functions." As such this information is needed for Defendant has requested the disclosure of Arizona Criminal Justice Information System (ACJIS) log searches on April 15, 2004, regarding temporary license plate TP7830 and any and all ACJIS queries made by Phoenix Police Department regarding Defendant's driver license status, also on April 15, 2004. The information requested the performance of their legally authorized functions . . ." Criminal justice information may only be released to specific entities and/or persons as set forth by statute. See A.R.S. § 41-1750(G). The release of criminal justice information to an entity or person not specifically listed in A.R.S. § 41-1750(G) is a crime. See A.R.S. § 41-1756. Any and all log searches for April 15, 2004 of Arizona temporary license TP7830, a 1998 Buick passenger car. In addition, any and all records documenting any query by the Phoenix Police Department on April 15, 2004 for information related to the driver license status of Teddy Low, DOB: 7/19/67. Defendant's subpoena duces tecum requests the disclosure of information that is protected by statute. Arizona Revised Statute § 41-1750 defines criminal justice information as "information that is collected by criminal justice agencies and that is needed for A. Pursuant to A.R.S. § 41-1750, DPS is statutorily prohibited from releasing criminal justice information. However, the City of Phoenix is not bound by A.R.S. § 41-1750 and may release this information to the Defendant. Defendant's subpoena duces tecum specifically requests that the Department provide:

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criminal justice agencies to perform legally prescribed functions and per A.R.S. § 41-1750(G) may only be released to authorized entities and/or persons. Defendant is not one of those authorized entities/persons as set forth by A.R.S. § 41-1750(G). However, the Defendant may obtain this information from the City of Phoenix Police Department or the ATF. These agencies should retain their data and they are not bound by A.R.S. § 41-1750. In fact, City of Phoenix Police Department has provided log search information to the Defendant. For these reasons, this Court should quash the subpoena duces tecum issued by the Defendant. B. If the Defendant is requesting "actual" criminal history information and MVD registration information, then this Court should quash the subpoena duces tecum. In a recent conversation between undersigned counsel and the defense counsel, it appears that the Defendant also wants the Department to produce actual criminal history records and the actual MVD registration information i.e. the results of the queries run by Phoenix Police Department or federal agents. This request should be denied for several reasons. First, Defendant failed to request this information in his written subpoena duces tecum. The subpoena duces tecum only requests log searches and any queries. It does not request the results of the searches/queries. Second, A.R.S. § 41-1750 only permits the disclosure of criminal history records to certain entities. See § 41-1750(G). The Defendant is not one of the listed entities. The statute does allow the Department to release criminal history record information to a person who asserts that the criminal history record information is inaccurate. See A.R.S. § 41-1750(G)(7) Defendant in this case has not claimed that the criminal history information is inaccurate. Thus, A.R.S. § 41-1750(G) (7) is

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not applicable. Considering the clear language of A.R.S. § 41-1750(G) the Department may not release the criminal history records to the Defendant. Finally, the Department is not the holder of the MVD registration information. If the Defendant is requesting actual MVD registration information, then this information should be obtained from the Arizona Motor Vehicle Division and not the Arizona Department of Public Safety. For the above reasons, the Court should deny any requests regarding the results of any search or query made by Phoenix Police Department or federal agents regarding this matter. In conclusion, the Department respectfully requests that this Court issue an order quashing the subpoena duces tecum. DATED this ______ day of ________________ 2005. TERRY GODDARD Attorney General s/Lisa Maxie-Mullins____________________________ Lisa Maxie-Mullins Assistant Attorney General

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CERTIFICATE OF SERVICE I hereby certify that on August 19, 2005, 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: Bill Solomon, Esq. Assistant U.S. Attorney Two Renaissance Square 40 N. Central, Ste. 1200 Phoenix, Arizona 85004 [email protected] Counsel for the United States Michael J. Bresnehan 1761 E. McNair Drive, Ste. 101 Tempe, Arizona 85283-5002 [email protected] Counsel for the Defendant

By s/ Lisa Maxie-Mullins Lisa Maxie-Mullins Attorney for the Department of Public Safety ____________________________

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