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7 Dennis I. Wilenchik, Esq. #005350
Davis P. Bauer, Esq. #035529
8 admin@wb-law.com
Attorney for Defendants
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10 IN THE UNITED STATES DISTRICT COURT

11 DISTRICT OF ARIZONA
12 Timothy Olmos,
Case No. CV 20-00034-PHX-GMS
13 Plaintiff,
v. DEFENDANTS’ MOTION
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FOR JUDGMENT ON THE PLEADINGS
Armida Hernandez, Erwinn Prieto,
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Defendants. (Oral Argument Requested)
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18 Pursuant to Rule 12(c), FRCP, Defendants Armida Hernandez (“Hernandez”) and Erwinn
19 Prieto (“Prieto”) (collectively, “Defendants”) submit the following Motion for Judgment on the
20 Pleadings and asks the Court to enter judgment in favor of Defendants against Plaintiff Timothy
21 Olmos (“Olmos”) on Count Six in the First Amended Complaint. This motion is supported by the
22 following Memorandum of Points and Authorities, as well as Defendant’s previous filings in this
23 action and any exhibits attached thereto, along with any oral argument permitted on this motion.
24 MEMORANDUM OF POINTS AND AUTHORITIES
25 I. FACTUAL HISTORY
26 Plaintiff is a convicted sex offender with a minor. Plaintiff is attempting to put a complete
27 stop to most of his current probation conditions.

28 To force his hand, Plaintiff brought a suit against a litany of defendants, including against
 1 his assigned probation officers, Hernandez and Prieto.
2 Plaintiff alleges that Defendants “enforced a policy, practice, and custom” of subjecting
3 Plaintiff to “unreasonable searches and seizures” pursuant to the Fourth Amendment.
4 Since there are no constitutional issues invoked by Count Six of Plaintiff’s Complaint, and
5 no constitutional violations of any rights of convicted sex offenders that this Court should
6 entertain, the Court should grant Defendant’s motion for judgment on the pleadings.
7 II. LEGAL ARGUMENT
8 This is a case brought by Plaintiff against Defendants for an alleged illegal search and
9 seizure of Defendant’s cell phone. Plaintiff Timothy Olmos is under supervised release in
10 connection with a sex offense conviction involving a minor. He is assigned to probation officers
11 at the Maricopa County Adult Probation Department (“APD”) for the rest of his life. Defendant
12 is entitled to judgment in this case because there is no dispute that Plaintiff was illegally seized or
13 had his phone searched pursuant to Fourth Amendment considerations. The entire event in
14 question took place during a scheduled, in-person probation meeting at APD on November 20,
15 2019.
A. Standard for Judgment on the Pleadings
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“After the pleadings are closed…a party may move for judgment on the pleadings.” Fed.
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R. Civ. P. 12(c). A party may file a motion for judgment on the pleadings under Rule 12(c) of the
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FRCP on the basis “the pleadings disclose that there are no material issues of fact to be resolved
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and that party is entitled to judgment as a matter of law.” 49 CFR § 821.17. A district court reviews
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a Rule 12(c) motion under the same legal standard as Rule 12(b)(6). Dworkin v. Hustler Magazine,
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Inc., 867 F.2d 1188, 1192 (9th Cir. 1989). Therefore, all the factual allegations in the complaint
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are taken as true. Id. However, a court is not required to accept as true any legal conclusions that
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are not supported by factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173
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L.Ed.2d 868 (2009). The motion will be granted only if a court finds that no issue of fact exists,
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and that the movant is entitled to judgment as a matter of law. Enron Oil Trading & Transp. Co.
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v. Walbrook Ins. Co., Ltd., 132 F.3d 526, 529 (9th Cir. 1997).
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28 / / /

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 B. Plaintiff’s claim as to unreasonable searches and seizures in violation of
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the Fourth and Fourteenth Amendment fail because there are no triable
2 issues of fact to decide.
3 Plaintiff claims that Hernandez’s search of his cell phone was willful, deliberate,
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malicious, and involved reckless or callous indifference to Plaintiff’s constitutional rights.
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Defendants do not dispute that a search of the Plaintiff’s cell phone occurred. However,
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7 Plaintiff’s belief that he has an unfettered right to be free from unreasonable searches or seizures
8 does not exist, and there is no issue of fact to decide. Since the search was reasonable,
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Defendants did not even need a warrant or probable cause as a matter of law. On August 8,
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2019, Plaintiff had agreed to, and physically signed, the “Maricopa County Adult Probation
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12 Department Standard Conditions Behavior Agreement & Review and Acknowledgement of
13 Conditions of Probation, which banned him from contacting any minor. [Doc. 71, at 67:4-
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18.] The search of Plaintiff’s phone was “reasonable” within the meaning of the Fourth
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Amendment to determine if Olmos was complying with the conditions of probation. Even if
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17 probable cause was required, the Defendants detected what appeared to be evasive or unnatural
18 behavior warranting the immediate review of Plaintiff’s cell phone during the middle of a
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scheduled probation meeting on the APD premises on November 20, 2019.
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Supervision of Plaintiff is necessary to ensure that probation restrictions are in fact
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22 observed, that the probation serves as a genuine rehabilitation period, and that the community of
23 Arizona is not harmed by the Plaintiff being able to offend against children again. Supervision
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of probationers like Plaintiff is a “special need” of the state of Arizona that may justify
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departures from the usual warrant and probable cause requirements. Griffin v. Wisconsin (1987)
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27 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709. It is reasonable for this court to consider that the
28 act of a probation officer obtaining a warrant any time it became immediately necessary to

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 check a child sex offender’s cell phone to review a moment when the probationer receives a call
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2 during a meeting and seeks to avoid such a call during a scheduled probation meeting is
3 counterintuitive to the goals of probation, and the supervised released of child sex offenders.
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Indeed, a warrant requirement would interfere to an appreciable degree with the Arizona
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probation system. This would happen in many ways if a warrant was required. For example,
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7 setting up a magistrate, rather than the probation officer as the judge of how close a supervision
8 the probationer requires, and what sorts of terms would apply or not based on how each
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probationer was situated, is not an effective tool for ensuring that a child sex offender is
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complying with their probationary terms. Id. Furthermore, the delay inherent in obtaining a
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12 warrant would make it substantially more difficult for probation officers to respond quickly to
13 evidence of misconduct. New Jersey v. T.L.O., 469 U.S., at 340, 105 S.Ct. at 743.
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In this case, Plaintiff met with probation officers Hernandez and Prieto during a routine
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probation meeting on November 20, 2019. Plaintiff claims that the unreasonable search and
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17 seizure occurred during the meeting when Plaintiff’s phone started ringing. Defendants also
18 heard the ringing. When this happened, Olmos continued with the meeting, ignoring the ringing.
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Plaintiff did not give any immediate reasons why someone would be contacting him during the
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time he was supposed to be in a meeting with his probation officers. After Plaintiff’s phone
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22 ceased to ring, Defendant Hernandez politely requested to see his cell phone. Plaintiff quickly
23 obliged to this request by handing over the phone to Hernandez without protest. Hernandez
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opened the phone and, according to Plaintiff, examined the pictures that Plaintiff had there, and
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then gave the phone back to Plaintiff. [Doc. 71, at 89:4-8, Count Six.]
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27 Most significantly, Hernandez’s search of Plaintiff’s cell phone did not delve deeper than

28 reasonably necessary. The conditions did not grant Hernandez carte blanche to indiscriminately

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 search all other information accessible by the phone, because it is understood that a cell phone is
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2 a gateway to a massive amount of personal information. Riley v. California, 573 U.S. at 393–95,
3 134 S.Ct. 2473. Here, the search was limited to data reasonably expected to contain information
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related to determining a probationer’s compliance with probation conditions. The “search” in
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this case involved only Plaintiff’s pictures to determine if he was looking at young women.
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7 Plaintiff admits that the only thing searched on his phone were the pictures. Plaintiff did not
8 describe anything else that was searched. It is reasonable for this court to assume that the search
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lasted no longer than a few minutes at most. The search by Hernandez stayed within a
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reasonable boundary because Defendants needed to ascertain if Olmos was adhering to the
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12 conditions that he had agreed to on supervised release, which included searching pictures that he
13 stored there to ensure no pictures of minors had been captured or stored there.
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The “search” was compliant with Fourth Amendment considerations, because
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Plaintiff detailed in his complaint how he was previously able to make sexual contact with a
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17 minor happen – by secret, electronic communication with the victim. [Doc. 71, at 26:22-27.]
18 Indeed, Plaintiff is on probation to ensure such “secret” communications with minors never
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happen again. Additionally, since Plaintiff is on supervised release for child molestation directly
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connected to these previous incidents, it was perfectly reasonable for Hernandez to search
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22 Plaintiff’s phone that rang during a scheduled probation meeting – to ensure that there was no
23 evidence that Plaintiff was reoffending.
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This search was reasonable, limited, and compliant to Fourth Amendment considerations
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and conducted pursuant to a valid regulation governing child sex offenders. There are no triable
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27 issues of fact left to decide based upon the record in this case.
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 C. No seizure occurred pursuant to the Fourth Amendment.
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2 Plaintiff’s claims for unreasonable search and seizure are unfounded because no seizure

3 occurred pursuant to the Fourth Amendment. A person has been “seized” within the meaning of
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the Fourth Amendment only if, in view of the circumstances surrounding the incident, a
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reasonable person would have believed that he was not free to leave.” United States v.
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7 Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). Mendenhall set forth
8 examples of circumstances that might indicate a seizure, even where the person did not attempt
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to leave: (1) threatening presence of officers; (2) display of weapon; (3) physical touching; or
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(4) the use of language or tone of voice indicating compliance with the with the officer’s request
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12 might be compelled. Id. at 554, 100 S.Ct. 1870.
13 From the facts in Plaintiff’s own complaint, Plaintiff did not mention any threatening
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presence of officers. It was non-existent. Plaintiff was comfortable speaking and meeting with
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APD officers on a consistent basis before and after the alleged search and seizure. Plaintiff was
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17 also more than comfortable confronting and arguing with APD officers about his probation
18 conditions before and even after this meeting. If any party had a “threatening presence,” it was
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more likely that the Plaintiff did in this case, rather than Defendants.
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No display of weapon existed here that could have tipped the scales in creating an
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22 unreasonable “seizure” in this situation. Plaintiff did not mention any weapon or display of
23 weapon that could have possibly intimidated or compelled him to an illegal search, because any
24 such display was non-existent. This was merely a scheduled probation meeting.
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There was no physical touching of anything other than the Plaintiff’s cell phone. Plaintiff
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27 had physically handed over his phone to his assigned probation officers voluntarily. There was
28 no physical touching because no physical touching was necessary. Plaintiff and Defendants were

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 sitting down in an air-conditioned room at APD, as Plaintiff had done many times before.
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2 Defendants did not lunge or grab for Plaintiff’s phone. Defendants did not physically coerce
3 Plaintiff to hand over his cell phone. This was not an arrest situation. Plaintiff’s assigned
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probation officers had no reason to be intimidating. No physical force was shown here. Physical
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force was not necessary.
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7 As for the final Mendenhall factor, there was no use of language or tone of voice
8 indicating compliance with the officer’s request might have been compelled. Even though
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Plaintiff alleges that Defendant Hernandez “demanded” that he hand over his cell phone. [Doc
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71 at 89.] However, this is not tantamount to a seizure under the Fourth Amendment. Even if
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12 there was a verbal “demand” in this context, Plaintiff could not choose to ignore the request
13 anyway, since Defendants were his assigned probation officers and he had agreed to searches of
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his property and person as part of his probationary conditions.
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The United States Supreme Court has found that police may briefly stop an individual if,
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17 based on the totality of the circumstances, they have reasonable suspicion that the individual is
18 involved in criminal activity. Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884, 20 L.Ed.2d
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889 (1968). The Supreme Court has explained the reasons for permitting investigative stops: In
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allowing such detentions, Terry accepts the risk that officers may stop innocent people. Indeed,
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22 the Fourth Amendment accepts that risk in connection with more drastic police action; persons
23 arrested and detained on probable cause to believe they have committed a crime may turn out to
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be innocent. The Terry stop is a far more minimal intrusion, simply allowing the officer to
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briefly investigate further. If the officer does not learn facts rising to the level of probable cause,
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27 the individual must be allowed to go on his way. Id.
28 In this situation, the Plaintiff admitted to being at a scheduled probation meeting. This

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 situation does not even arise to the level of a Terry stop, since no actual police officers were
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2 involved, there was no physical “frisk” of the Plaintiff through a physical touching, and Plaintiff
3 did not have a right to ignore his probation officers, given the conditions of his supervised
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release. Given these circumstances, no seizure occurred pursuant to Fourth Amendment
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considerations.
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7 D. Even if Plaintiff’s cell phone was searched pursuant to the Fourth
Amendment, the search was reasonable under the totality of
8 circumstances.
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There are permitted exceptions to searches when “special needs, beyond the normal need
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for law enforcement, make the warrant and probable-cause requirement impracticable.” New
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12 Jersey v. T.L.O., 469 U.S. 325, 351, 105 S.Ct. 733, 748, 83 L.Ed.2d 720 (1985) Arizona’s
13 operation of a probation system, like its operation of a school, government office or prison, or its
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supervision of a regulated industry, likewise presents “special needs” beyond normal law
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enforcement that may justify departures from the usual warrant and probable-cause requirements.
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17 Griffin v. Wisconsin (1987) 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709.
18 To a greater or lesser degree, it is always true of probationers that they do not enjoy “the
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absolute liberty to which every citizen is entitled, but…only conditional liberty properly
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dependent on observance of special [probation] restrictions.” Morrissey v. Brewer, 408 U.S. 471,
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22 480, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). That is precisely the case here. Much to the
23 outrage of the Plaintiff, he is a convicted child sex offender. As a result, under the totality of the
24 circumstances, Hernandez’s search of Plaintiff’s cell phone was reasonable and therefore
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compliant with the Fourth Amendment because Defendants needed to ascertain whether or not a
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27 convicted child sex offender on supervised released had incriminating material, or evidence of
28 communication with minors on his phone. The fact that the circumstances included conducting a

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 search of Plaintiff’s cell phone pursuant to a valid regulation governing child sex offenders should
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2 show that the search was reasonable under the totality of the circumstances.
3 E. Plaintiff consented to the search of his cell phone.
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Consent is a recognized exception that permits a search in the absence of a warrant. Consent
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plays a major role in this instance because Plaintiff consented to the search of his cell phone when
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7 Officer Hernandez requested to see it on November 20, 2019. Defendants were also strictly
8 following APD policy in this case as it related to dealing with child sex offenders on supervised
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release.
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A warrantless search is typically unconstitutional unless the government demonstrates that
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12 it falls within certain established and well-defined exceptions to the warrant clause. Consent
13 constitutes one such exception: a search conducted pursuant to a valid consent is constitutionally
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permissible. Schneckloth v. Bustamonte 412 U.S. 218, 222, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).
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The government bears the burden of proving that consent was voluntary. [Id.] Whether consent to
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17 search was voluntarily given is “to be determined from the totality of all the circumstances.” [Id.]
18 There are typically five factors in determining voluntariness: (1) whether the [consenting
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individual] was in custody; (2) whether the arresting officers had their guns drawn; (3) whether
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Miranda warnings were given; (4) whether the [consenting individual] was notified that she had
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22 a right not to consent; and (5) whether the consenting individual had been told a search warrant
23 could be obtained.
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Plaintiff is on probation. Plaintiff voluntarily chose to attend a meeting with his probation
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officers. Plaintiff did not attend this meeting as a product of duress or coercion. Regarding the
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27 second factor from Schneckloth, Plaintiff was clearly not under arrest; this was a meeting to
28 confirm Plaintiff was following his probation conditions. Since this was one of many probation

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 meetings that Plaintiff had been a part of in the past, no Miranda warnings were given, but Miranda
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2 warnings were also not necessary, because Plaintiff could have verbally refused the search, as
3 Olmos had verbally refused to do other things that APD had asked of him, such as sexual history
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polygraphs and questionnaires. Plaintiff was also not under any duress or coercion inside of the
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meeting room. Plaintiff knew that he was free to voice his concerns with any search of his cell
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7 phone with APD. Indeed, there were instances during his supervised release that he had missed
8 communication and meetings with APD. [Doc. 71, at 121:7-13] Plaintiff knew meetings like this
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were voluntary, because even after he missed a meeting with one of his probation officers at his
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residence, he asked his assigned officer at the time if she wanted to open a “dialogue” with him
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12 about seeing him at a reasonable time. [Id.]
13 Plaintiff had a history of invoking his Fifth Amendment privileges on mostly everything
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he had been given by APD. Even so, Plaintiff was on notice that he had a right to bring up
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constitutional considerations and refuse other things from APD on the grounds of privacy, Fifth
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17 Amendment, and other civil rights considerations, as he had been doing consistently in the past.
18 Clearly, Plaintiff voluntarily consented to the search of his cell phone in this instance. Plaintiff
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did not give any indication that he was refusing the search. In fact, he was the one that physically
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handed over his cell phone when he was asked for it, while he and Defendant were a few feet apart
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22 in a room together.
23 Plaintiff was not under arrest, was not subjected to a frisk, and his phone was not
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impounded or subjected to further forensic analysis. Plaintiff alleges that only the pictures on his
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phone were briefly looked at by Defendant Hernandez. The search lasted less than 2 minutes, as
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27 Plaintiff confirmed in subsequent communication with Defense counsel. Plaintiff continued to
28 argue about things like his curfew, desire to drink alcohol, and have a personal computer to pursue

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 litigation against people for months on end but did not bring up the circumstances of this search
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2 of his phone to his assigned probation officers until bringing this litigation. In fact, Plaintiff
3 continued to meet with Defendants regularly to voice his concerns and argue against his conditions
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on supervised release.
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F. Plaintiff held a diminished expectation of privacy in his cell phone during
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scheduled probation meetings connected to his child molestation
7 conviction, making any search of his cell phone by his probation officers
reasonable.
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9 Plaintiff had a diminished expectation of privacy in the contents of his personal cell phone

10 during any mandatory meetings with probation officers because Plaintiff was actively
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participating in an invasive process of giving up information that was present on computers, or
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any other devices he utilized that could access the Internet. This process entailed the handing over
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14 of all online identifiers that Plaintiff had ever used for access or communication on any website
15 on the Internet. [Doc. 71, at 71:14-20.] This probationary condition is so thorough, that Plaintiff
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needed to provide online identifiers to his assigned probation officers ahead of time before he
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began accessing any new websites.
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19 Indeed, Plaintiff was irritated by this policy, but nonetheless participated in following the

20 policy. Oddly enough, Plaintiff has now filed a suit against these same officers that he was giving
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such intimate information to, while expecting to have privacy in his cell phone as someone who
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is not only on lifetime probation as a convicted child sex offender, but someone that does not even
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24 have any expectation of privacy in an online username or identifier. This claim that Plaintiff’s
25 constitutional rights were violated is ignorance of the law at best, and a complete fraud upon the
26 court at worst. Plaintiff clearly had issues with almost all APD policies but agreed to this one
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without offering any opposition.
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 Plaintiff had already been compelled to disclose private details of his Internet life to APD
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2 prior to the search of his cell phone that took place on November 20, 2019. Such a search of one’s
3 phone would have clearly been unreasonable for a normal person that was not a convicted sex
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offender made to adhere to probationary conditions, like searches of their property. However,
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Plaintiff claimed he was also willing to continue to disclose everything about his Internet habits
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7 and personal identifiers on an ongoing basis to APD. [Doc. 71 at 71 & 72:14-23]. Plaintiff
8 disclosed such private, intimate, and personal details about his Internet usage and activities that
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no other person would be expected to disclose to anyone, due to obvious privacy concerns – but
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most people are not child sex offenders on supervised release for molesting a 14-year-old. Given
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12 these circumstances alone, it is reasonable to assume that Olmos at least thought about his
13 diminished level of privacy in his computer and phone while handing over his online identifiers
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to APD. Indeed, Olmos admitted to looking back at the legal provisions for these policies, so his
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diminished level of privacy was, at the very least, contemplated. [Id. at 73:3-5.]
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17 Plaintiff explained he was giving probation officers such private information whenever

18 they asked him for it and confirmed this was the case to Defendant’s counsel multiple times
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throughout the litigation of this remaining count. [Id.]. Olmos also had to disclose and fulfill such
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a thorough obligation by telling his assigned officers, Defendants Hernandez and Prieto, about
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22 such identifiers in detail and wherever he utilized the identifiers on the Internet, even if these
23 online identifiers could not possibly be used to contact a child or potential victim. [Id. at 71,
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14-20; see also A.R.S. § 13-3821(J)].
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As a result of Plaintiff not having any expectation of privacy in his use of the Internet,
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27 computers, usernames and identifiers he maintained online, as well as having no expectation of
28 privacy in a wide array of public and private forum bans at certain times of the day through

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 curfews, it is reasonable to assume that Olmos should have expected to have the same level of
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2 expectation of privacy in his cell phone, especially during physical meetings with his probation
3 officers, and especially after they requested permission to see his cell phone as pursuant to his
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probationary conditions. Plaintiff should have expected a diminished level of privacy in his cell
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phone during meetings of probation officers because they needed to examine his phone to ensure
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7 that he was complying with the conditions of his probation agreement.
8 III. CONCLUSION
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For all the foregoing reasons, Defendant’s Motion for Judgment on the Pleadings should
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be granted because there are no material issues of fact to be resolved from the pleadings of this
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12 case, and Defendant is entitled to judgment as a matter of law. The search of Plaintiff’s phone was
13 “reasonable” within the meaning of the Fourth Amendment because it was conducted pursuant to
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a valid regulation governing child sex offenders.
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16 RESPECTFULLY SUBMITTED March 4, 2022.
17 WILENCHIK & BARTNESS, P.C.
18 /s/ Dennis I. Wilenchik
Dennis I. Wilenchik, Esq.
19 Davis P. Bauer, Esq.
Phoenix, Arizona 85004
20 admin@wb-law.com
Attorney for Defendants
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22 CERTIFICATE OF SERVICE

23 I hereby certify that on March 4, 2022, I electronically transmitted the foregoing document

24 to the Clerk of the Court through the CM/ECF system, which will send a Notice of Electronic
25 Filing to all CM/ECF registrants for this matter.
26
27 /s/ M. Sheridan

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