In a stunning development, a Cochise County judge overruled himself Wednesday after announcing in June that a Tombstone sergeant did nothing wrong in obtaining a search warrant during a 2019 burglary investigation.
According to a Sept. 1 order signed by Judge Jason Lindstrom, he found “oversights” with his own June 28 order which dismissed parts of a lawsuit filed by Matthew King against then-Sgt. Travis Mattern of the Tombstone Marshal’s Office (TMO) and other TMO employees for King’s arrest in January 2019 on a burglary charge.
Those oversights, the judge wrote, “must be corrected.” As a result, Lindstrom reversed himself and ruled King had in fact proven Mattern acted recklessly to obtain a warrant to search the Tombstone home King lived in with his parents. After the search, Mattern arrested King even though the investigation had not recovered any of the stolen items, nor developed any eyewitnesses, DNA, or fingerprints tying King to the burglary.
Lindstrom’s June order was in response to a motion for summary judgment filed by Andrew Petersen, an attorney representing the city’s insurance carrier. Petersen argued King’s lawsuit had to be dismissed because Mattern, former Tombstone Marshal Bob Randall, and other TMO defendants relied on a “validly issued search warrant” and had qualified immunity against such civil litigation.
Since the June ruling, the parties have been waiting for Lindstrom to decide whether any of the TMO defendants are in fact protected by qualified immunity for arresting King on Jan. 28, 2019. The charges against King were dropped a few days later by the Cochise County Attorney’s Office after sheriff’s deputies recovered some of the items stolen in Tombstone while investigating an unrelated armed robbery in Palominas.
The dismissal, however, did not clear King’s arrest record. He later sued for false imprisonment, battery, assault, negligence, intentional infliction of emotional distress, and negligent supervision.
King’s attorney, Joel Borowiec, argued Mattern was an experienced officer who should have known he did not have probable cause to obtain a search warrant for King’s home nor make an arrest. King spent a night in the Cochise County jail before being able to arrange $25,000 bail, which required a nonrefundable $2,500 fee.
A search warrant is a court order authorizing a law enforcement officer who has shown probable cause exists based on a totality of the circumstances to search a specific place for specific things to prove a specific crime. An officer submits a written or verbal affidavit attesting to why a warrant should be issued.
In the King case, several TMO deputies responded to a residential burglar alarm on Jan. 26, 2019. Mattern handled the investigation which included the discovery of several large Nike shoeprints at the scene. Those shoeprints headed away from the victim’s house into the desert for several hundred feet in the direction of other homes, one of which King lived in.
Based on photos taken at the crime scene, Mattern searched the internet for a Nike shoe with the same tread pattern and “swoosh” location on the heel. The next day, King’s uncle was shown a photograph of the Nike shoe Mattern located on the internet.
The uncle, initially referred to as an anonymous witness, told someone at TMO that King “had a pair of white ones” but never said King had the exact type of shoe. The uncle also said King had been walking around at the Tombstone Cemetery. Court records show a family member was buried that weekend.
A crime scene technician went to the cemetery and took several photos of large-sized Nike shoeprints about which Mattern wrote in his affidavit for a search warrant that “a reasonable person could say matched the shoe prints from the burglary.” The search warrant was issued by a justice of the peace.
Fast forward to a June 28, 2021 hearing, and it was Lindstrom who ruled the “totality” of information Mattern had available when applying for a search warrant back in 2019 was sufficient. That ruling dismissed the claims in King’s lawsuit directly related to the search warrant.
But after thinking it over, Lindstrom issued a different ruling Sept. 1. And it was based on taking another look at Mattern’s references to the shoeprint evidence and the uncle’s statements when the sergeant applied for the search warrant.
“While the cemetery prints were Nikes of a similar size, the prints did not match those collected at the burglary trail,” Lindstrom wrote in his amended order, adding that Mattern’s statement about the shoeprints “along with the other suspicions and rumors regarding the shoes was at least reckless, and omitting the fact that the prints were actually different is misleading on its face.”
Lindstrom also ruled in his amended order that the sergeant’s representation to the justice of the peace about the uncle’s statements “was made in reckless disregard to truth, at the very least.” As a result, a more thorough review of Mattern’s affidavit reveals there was insufficient evidence to support issuing a search warrant at the time, the judge wrote.
But that is not the only issue addressed in King’s lawsuit. He is also suing the TMO defendants for arresting him, something Lindstrom addressed in his amended order, noting that “suspicions are not evidence, and do not support probable cause to arrest.”
According to Lindstrom, to arrest someone there must be “reasonably trustworthy information of facts and circumstances which are sufficient in themselves to lead a reasonable [person] to believe an offense is being or has been committed and that the person to be arrested is committing or did commit it.”
The search of King’s residence, the judge said, “added nothing new to the totality of the circumstances that could be used to justify probable cause to arrest” King for the burglary.
“Furthermore, there are no facts that would tend to directly link King to the burglary other than his large feet, appreciation for Nike shoes, casual rumors and his general reputation,” Lindstrom added.
Next up for the parties will be further argument on whether any of the TMO defendants are protected by qualified immunity against King’s claims.
In Arizona, qualified immunity ensures a peace officer is only liable for conduct in which the officer acted “in reckless disregard of whether the officer’s conduct would deprive another person of their rights.” It provides officers with “the right to be wrong” in situations which often require split second decisions.
Borowiec declined to comment on Lindstrom’s new order. A request for comment from Petersen as well as Tombstone City Attorney Ann Roberts was not replied to before press time.
Another issue which may come into play as King’s lawsuit moves forward is the fact Mattern voluntarily relinquished his state peace officer certification last month after he admitted to on-duty misconduct related to communications and sexual activities with women.
The TMO search of the King residence did reveal a small quantity of illegal drugs and paraphernalia, for which no one was charged. One of the suspects identified in the Palominas armed robbery also wore large-sized Nikes. His plea deal in that case guarantees he will not be charged in the future for the Tombstone burglary.
