PHOENIX — The state Court of Appeals gave the owner of a chain of Phoenix area restaurants a chance to undermine — and possibly escape — charges he knowingly hired undocumented workers, after finding evidence of false statements by sheriff's investigators.
Judge Kenton Jones said there were "seemingly pervasive misstatements of basic facts'' made by Maricopa County investigators when they obtained search warrants for the home of Brett Frimmel and the Uncle Sam's restaurants he owns.
The judge said last week that there was evidence of "numerous misrepresentations and omissions of material facts.''
What all that means, Jones said, is Frimmel is entitled to a hearing before a trial judge to see whether the evidence gathered from those warrants was obtained illegally, a hearing which was originally denied.
And if the evidence is thrown out, all the charges against Frimmel could be dismissed.
There was no immediate comment from the Maricopa County Sheriff's Department.
But Jerry Cobb, spokesman for the Maricopa County Attorney's Office, said the appellate court considered only Frimmel's version of events. Cobb said that provides an opportunity for prosecutors to argue the search warrants were legally justified when the case goes back before a trial judge.
Last year, after a year-long investigation, sheriff's investigators obtained warrants to search the Phoenix and Peoria locations of Uncle Sam's as well as Frimmel's home. During the execution of those warrants, 10 employees were arrested; four ultimately were convicted of identity theft.
Frimmel himself was arrested in January and charged with multiple felonies related to knowingly hiring and employing individuals with false identification.
Paul Charlton, Frimmel's attorney, sought to have the evidence seized suppressed. When Maricopa County Superior Court Judge Teresa Sanders refused to grant a hearing, Charlton appealed.
The judge said Arizona law requires the magistrate who issued the search warrants be given all the relevant information. He said that appears not to be the case.
For example, the affidavits given to the magistrate do not disclose two of the initial informants actually were married to each other. Beyond that, the husband was later convicted of embezzling funds from Uncle Sam's, a fact not disclosed to the magistrate.
Other missing information includes that:
• No employee vehicles were ever observed at Frimmel's residence;
• Presenting irrelevant information about the lack of photocopying employee identifications;
• Suggestions of unrelated criminal drug activity.
Jones said all that is important.
He said magistrates must rely those providing sworn statements "to provide truthful, accurate and complete information to substantiate the existence of probable cause.'' That, said Jones, appears to have been missing here.
Charlton acknowledged that Tuesday's ruling does not mean the charges against Frimmel will be dropped. But it does give him a chance to contest whether the warrants were valid in the first place.
"We are entitled to a hearing where we can cross-examine the officers under oath as to why it is these omissions and misstatements were made,'' he said.
Prosecutors have had other problems with the case related to former deputy Ramon Armendariz, who was involved in the case.
Armendariz, who has since died, was found to be hiding drugs, IDs and license plates in his home. And Charlton said he made statements to sheriff's officials which alleged wrongdoing by others in the department's human-smuggling unit.