Recorded jail calls from girlfriend used as basis to search home, car
Judge to determine if JP’s search warrant violated Constitutions
UPDATED MAY 6, 2017
VERDICT REPORT by Terri Jo Neff
On May 5, Donald Donovan of Benson was found guilty by a jury on only three of the nine felonies he was indicted on last fall. And two of the three guilty verdicts were for lesser versions of the original charges.
The courtroom clerk announced the jury’s verdicts shortly before 3:00pm Friday. On the two most serious charges -possession of methamphetamine for sale and possession of heroin for sale- the jury found Donovan guilty of simple possession, not possession for sale.
Donovan, who police detective Brian Williams once called the “most active heroin dealer in the Benson area,” was also found guilty of possession of drug paraphernalia related to syringes and spoons found by Williams during a search of Donovan’s home in October.
However, the jury found him not guilty of possession of marijuana and not guilty of possession of drug paraphernalia related to bongs and smoking pipes found in the home.
The jury, which deliberated nearly 10 hours over two days, deadlocked on three other charges. Two of those charges involved possession of drug paraphernalia and the third was for trafficking in stolen property related to several tools seized by police from Donovan’s home.
A ninth charge, also involving trafficking in stolen property, never made it to the jury. Instead, judge Wallace Hoggatt issued a judgment of acquittal at the request of defense attorney Richard Swartz, who argued prosecutor Thomas Bennett had not put forth sufficient evidence to prove the charge.
Donovan has been in custody since his arrest and is scheduled to be sentenced by Hoggatt on June 30. The judge will also hold a hearing later this month to set a new trial date for the three counts which deadlocked the jury. The county attorney’s office has 60 days to retry Donovan on those charges.
Continue below for the original March 9, 2017 report…
BENSON – Donald Donovan, a man described by police last fall as the “most active heroin dealer in the Benson area,” will soon argue in Superior Court that detective Brian Williams of the Benson Police Dept. misled a Cochise County Justice of the Peace in order to obtain a search warrant. The allegation is contained in aFebruary 15 motion filed by Donovan’s court appointed attorney Richard Swartz to suppress evidenceseized by police during the search.
At the March 23 hearing, judge Wallace Hoggatt will determine whether the defense substantiates its assertion that Williams “intentionally, knowingly and or recklessly provided falsehoods, material omissions and or misrepresentations” in a sworn affidavit the detective submitted October 5, 2016 outlining his probable cause for a search warrant of Donovan’s residence and vehicle.
Donovan, age 46, was arrested after authorities found evidence of illegal drugs and stolen property during the searches. He was indicted by a county grand jury on October 27 on seven drug-related counts for possession of a dangerous drug (meth) for sale, possession of a narcotic drug (heroin) for sale, possession of marijuana, and possession of drug paraphernalia. He was also indicted on two counts related to trafficking in stolen property.
His trial is set for May 1 but first judge Hoggatt must decide whether the search warrant signed by Justice of the Peace Trevor Ward (District 4, Willcox) was issued “in violation of the U.S. and Arizona constitutions, statutes and caselaw” as alleged by the defense.
Collect calls from jail; talk about drug deals and dealers
Williams’ investigation of Donovan began in mid-September after the detective became aware of phone calls between Donovan and Denise Lynn Lavoie, his girlfriend who was in the Cochise County jail following her arrest for drug possession. Inhis affidavit in support of the search warrant request,Williams noted that Lavoie placed several collect calls to Donovan that were recorded by the jail with the knowledge of the inmate and the person accepting the call.
While monitoring those calls, Williams wrote, he heard discussions between the couple “wherein drug distributions and use were discussed.” He also wrote of hearing “admissions made by Donald (Donovan), whereas he told Lavoie he had made money by selling illicit drugs.”
However, the defense argues that portions of Williams’ affidavit are “false and misleading” and that Williams “purposely omits” pertinent details about the calls. The defense also claims the detective used “inaccurate assertions” to “paint Mr. Donovan and Ms. Lavoie as current active long-time drug dealers” which attorney Swartz believes “would not be supported by accurately summarizing their criminal record.”
The defense also contends that although Williams handwrote on his typed affidavit that the calls “were monitored” between September 17 and October 4, the detective “fails to note the dates of specific calls” in which comments referenced by Williams were made.
Another example noted by Swartz is a statement written by Williams that two people “were in possession of illicit drugs / contraband” when they were arrested after leaving Donovan’s residence. Swartz notes that during an interview of Williams the defense discovered the two people did not possess illegal drugs and “both explicitly denied purchasing drugs from Donovan,” something not mentioned in the affidavit.
This is the second time in recent years that detective Williams’ truthfulness has been questioned in open court. In 2012, judge James Conlogue ruled that Williams provided “misleading” testimony to a county grand jury. The county attorney’s office later filed a motion to dismiss the charges in that case.
Deputy county attorney Thomas Bennett is the prosecutor in Donovan’s case. In his response to the defense’s suppression motion, Bennett contends the motion “should be denied as the search warrant affidavit is neither misleading or false.”
Bennett argues that Williams’ affidavit properly characterized Donovan’s criminal history which includes numerous felony drug convictions in Florida, and that based on Williams’ “training and experience in drug investigations” the detective knew Lavoie and Donovan were discussing “descriptions of various forms of heroin and methamphetamine.”
He notes that a magistrate [a judge] may consider the “totality of the circumstances” when reviewing an affidavit for probable cause and that a magistrate’s decision is to be “given great deference.” Bennett also contends a “marginal affidavit” should be considered on review in favor of “the presumption of validity.”
If judge Hoggatt rules that Williams made misleading statements then the judge can consider whether the affidavit – minus the bad parts – provided sufficient probable cause for a search. The judge could also order some or all items seized during the search be suppressed (kept out) as evidence against Donovan.
Tucson drug supplier named in defendant’s jail calls with girlfriend
After her arrest last summer, Lavoie was indicted by a county grand jury on several drug charges. On September 21, she accepted a plea deal for one count of possession of heroin (personal use). On October 10 – just a few days after the search – Lavoie was sentenced to four years of supervised probation and is required to successfully complete drug treatment. Other counts stemming from her arrest were dismissed as part of the plea agreement.
Detective Williams mentions in his affidavit that “during a number of phone calls” Donovan and Lavoie discuss two men – “Mondo” and “Manny” – with whom Donovan “deals.” Williams noted that Donovan told Lavoie about “Mondo” being arrested in a federal raid in Tucson, and as a result Donovan expressed reservations about dealing with him.
“Mondo” is Armando Sollers who was identified by the U.S. Drug Enforcement Agency (DEA) in September 2016 as “supplying drug dealers in the Sierra Vista area with heroin and methamphetamine.” That information is contained in a probable cause statement filed by Sierra Vista Police detective Branden Eaton in the case of Michael “KillaMike” Ramirez, a high-level Sierra Vista drug dealer sentenced in December to nearly nine year in prison for possession of a narcotic drug (heroin) for sale.
Sollers, age 46, was arrested in September after a year-long DEA investigation. He pleaded guilty to possession of a dangerous drug (meth) and solicitation to possess a narcotic drug (heroin), for which he faced a presumptive prison term of 2.5 years. Sollers was sentenced March 9 by Pima County Superior Court judge Howard Fell to three years probation on both counts, to be served concurrently (at the same time). He was also assessed $1,850 in fees and ordered to perform 360 hours of community service.
Contact reporter Terri Jo Neff at 520-508-3660 or firstname.lastname@example.org