An Apache Junction man convicted of making threats against his estranged wife’s life two months after completing a 10-year prison term did not have his rights violated when officers tracked his cellphone three times in one day without a warrant, the Arizona Court of Appeals ruled last week.
Donallen Leroy McFarlin was identified on June 2, 2018 as the man who made several phone calls to his wife, including voicemails in which he claimed he would send her to the hospital, burn down her house, or leave her “f***** up, dead.” He had just been released from prison in April for a 2009 armed robbery of a Bullhead City post office and several state crimes.
McFarlin, now 74, contended that without a warrant, officers with the Apache Junction Police Department violated his constitutional rights by “pinging” his cell phone without a warrant three times in a two-hour period that day. The pinging was undertaken to determine the location of McFarlin’s phone, and presumably his location, in hopes of stopping the threatened attacks.
Court records show each of the pings placed McFarlin’s phone in the Tempe area about 30 minutes from his estranged wife’s home.
Under the Arizona Constitution’s Private Affairs Clause, no person “shall be disturbed in his private affairs or his home invaded without authority of law.” However, an exigent circumstances exception exists “when a substantial risk of harm” would arise if police were delayed in obtaining a search warrant.
Prior to trial, McFarlin argued that officers failed to prove such a circumstance existed June 2, but the Pinal County trial judge allowed the evidence to be presented to a jury. McFarlin was convicted of three felonies -burglary, stalking, and threatening communications- and sentenced to 15 years in prison.
McFarlin then appealed, but in a unanimous March 26 decision, the court of appeals affirmed McFarlin’s conviction and sentence. The court found exigent circumstances were present when officers pinged the phone, based in part on the fact someone had just broken into the wife’s car and stole her garage door opener.
“Then, police heard the threats McFarlin had made on (the wife’s) voicemail, in which he stated he could have gotten into her home, she needed to look out for her safety at all times and places, and she would ‘get got,’” the decision states. “Thus, were they to delay pinging and locating McFarlin until being granted a warrant, a substantial risk of harm to (the wife) would have escalated.”
The Arizona Department of Corrections shows McFarlin’s tentative release date as May 2032, in time for his 86th birthday.
In a separate matter, the U.S. Court of Appeals for the Ninth Circuit ruled last month that McFarlin can pursue a federal civil rights lawsuit he filed by himself in 2018 which alleges two Maricopa County Sheriff’s Office detention officers assaulted McFarlin and then denied him medical care for a head injury.
Court records in McFarlin’s 2009 bank robbery case show he was sentenced to eight years in federal prison for pointing a handgun at the head of a clerk in a Bullhead City post office before leaving with $778 cash.
A bank customer noted the license plate number of the car McFarlin drove away in, and days later McFarlin was arrested in Nevada. At the time, he was already a convicted felon who had been charged with two prior armed robberies.