MEMORANDUM OPINION AND ORDER
On April 27, 2007 Defendants filed a Motion for Summary Judgment on Qualified Immunity (Doc. No. 87). On May 21, 2007 Plaintiff filed a Response (Doc. No. 89), and on June 18, 2007 Plaintiff filed a corrected Response (Doc. No. 97). On July 3, 2007 Defendants filed their Reply (Doc. No. 99), along with a Motion to Strike Plaintiff's Exhibits (Doc. No. 100).*fn1 With leave of the Court, Plaintiff filed a Sur-Reply to the Motion for Summary Judgment (Doc. No. 103) on July 12, 2007. After carefully considering all the pleadings, the admissible evidence of record, the arguments of counsel, and the relevant law, the Court determines that the motion to strike should be granted in part and denied in part, and that the motion for summary judgment should be granted.
Plaintiff Adrian E. Lucero brings this civil rights action under 42 U.S.C. § 1983. He asserts two federal constitutional claims under the Fourth Amendment, one for violation of his right to be free from arrest without probable cause, and one for malicious prosecution. He also asserts a third federal constitutional claim under the Fourteenth Amendment for a due process violation. The claims stem from the arrest and prosecution of Plaintiff on drug charges, which resulted in acquittal by a jury and a rare apology by the trial judge. Defendants contend they are entitled to qualified immunity on all claims because Plaintiff cannot meet his burden of demonstrating either that Defendants violated a constitutional right, or that reasonable police officers would have known from pre-existing case law that the conduct actually engaged in by Defendants would violate Plaintiff's constitutional right to be free from arrest without probable cause.
Summary Judgment Standards
Summary judgment is appropriate only if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. See Fed. R. Civ. P. 56(c). A fact is "material" if, under the governing law, it could have an effect on the outcome of the lawsuit. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is "genuine" where the evidence is such that a reasonable factfinder could return a verdict for the nonmoving party. Ingels v. Thiokol Corp., 42 F.3d 616, 620 (10th Cir. 1994), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. at 248.
When applying this standard, the Court examines the factual record and reasonable inferences therefrom in the light most favorable to the party opposing summary judgment. Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990). The moving party bears the initial burden of showing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); Simms v. Oklahoma ex rel. Dep't of Mental Health & Substance Abuse Serv., 165 F.3d 1321, 1326 (10th Cir. 1999). Only then does the burden shift to the non-movant to come forward with evidence showing that there is a genuine issue of material fact. Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991). The non-moving party may not avoid summary judgment by resting upon the mere allegations or denials of the party's pleadings. Bacchus, 939 F.2d at 891. To withstand a motion for summary judgment, the non-movant must make specific reference to admissible evidence in the record that creates a genuine issue of material fact. See Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1546 (10th Cir. 1995).
Qualified Immunity Standards
Qualified immunity protects government officials performing discretionary functions, sued in their individual capacities, from participation in § 1983 lawsuits for civil damages "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Eaton v. Meneley, 379 F.3d 949, 954 (10th Cir. 2004); Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504, 516 (10th Cri. 1998). Once a defendant invokes qualified immunity, the plaintiff is faced with a heavy two-part burden:
[T]he plaintiff must show (1) that the defendant's conduct violated a constitutional or statutory right, and (2) that the law governing the conduct was clearly established at the time of the alleged violation. . . . For a right to be clearly established, '[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.' Anderson v. Creighton, 483 U.S. 635, 640 (1987).
Eaton, 379 F.3d at 954 (internal citations omitted). If the plaintiff is unable to meet either part of his two-part burden, summary judgment is proper. Albright v. Rodriguez, 51 F.3d 1531, 1535 (10th Cir. 1995).
When the defense of qualified immunity is raised in a summary judgment motion, the court must proceed first by determining whether a plaintiff has demonstrated the violation of a constitutional or statutory right. Eaton, 379 F.3d at 954. If the plaintiff fails to meet the first part of the test, the court need not go on to the "clearly-established" prong of the test. Id.
In accordance with summary judgment standards, and with the Court's ruling on the Defendants' Motion to Strike Exhibits (which is discussed later in this opinion), the following facts are either undisputed or viewed in a light most favorable to Plaintiff. In October 2001 Plaintiff lived with his sister Roxanne Lucero in Albuquerque. He had recently returned to New Mexico after attending a motorcycle maintenance program in Arizona. During this time Plaintiff occasionally stayed with and worked for his aunt Lenora J. Crow in Edgewood, New Mexico.
Pl. Ex. A at 1-5 (transcript of Crow's and R. Lucero's testimony in Plaintiff's criminal trial). Also during this time, Plaintiff and his sister occasionally visited their mother, Theresa Lucero, in Española, New Mexico. These visits usually occurred on weekends because their mother worked during the week. Pl. Ex. A at 5-8 (testimony of R. Lucero and T. Lucero).
On October 10, 2001 (a Wednesday) Defendant Sergeant Chris Valdez, Defendant Agent Mario Salbidrez, and Agent Orlando Cordova conducted an undercover drug buy at the Bonecutter Trailer Park in Española, New Mexico. Prior to October 10, 2001, Sergeant Chris Valdez received information from a confidential informant ("CI") that someone was selling cocaine in the Bonecutter Trailer Park. Sergeant Valdez briefed Agent Mario Salbidrez on the information he had received and arranged a meeting between Agent Salbidrez and the CI on October 10, 2001. At this meeting on October 10, 2001, the CI informed Agent Salbidrez that Salbidrez would be purchasing narcotics from a person named "Adrian." The CI accompanied Agent Salbidrez to the trailer where "Adrian" was waiting. Agent Salbidrez pulled up to the trailer identified by the CI and honked his horn. The person whom the CI identified as "Adrian" exited the trailer, the CI got out of the car, and "Adrian" got into the car with Agent Salbidrez.
While sitting in the car, Agent Salbidrez purchased a powdery substance from "Adrian" at the already-negotiated price of $350.00. The substance was later identified as 13.2 grams of cocaine. During the drug buy, Agent Salbidrez informed "Adrian" that he would like to make future purchases from him and requested contact information. "Adrian" gave Agent Salbidrez a piece of paper with the name "Adrian" and a cellular phone number.
Defendants have given conflicting accounts of how they focused on the last name of "Lucero." Defendants assert that during the drug buy Agent Salbidrez asked "Adrian" for his last name and Adrian provided the last name of "Lucero." Def. UMF 7; Def. Ex. 2 (Salbidrez Aff.) ¶ 14 at 4. Salbidrez testified before the grand jury that the CI had identified the seller as Adrian Lucero. Pl. Ex. G (Salbidrez grand jury testimony) at 2; Pl. Ex. B Part 2 (Salbidrez testimony in Plaintiff's criminal trial) at 1-2. In his police report of the incident, Defendant Valdez wrote that Salbidrez had told him that the seller had identified himself as "Adrian E. Lucero." Pl. Ex. E (interview of Valdez by Plaintiff's criminal defense attorney Paul Branch). However Salbidrez told an investigator for Plaintiff's criminal defense attorney that although Adrian gave Salbidrez the last name Lucero, he did not give his middle initial. Pl. Ex. H at 4.
Throughout the undercover purchase, to ensure the safety of Agent Salbidrez, Sergeant Valdez and Agent Cordova were conducting surveillance from a Walgreen's parking lot at a distance of approximately 125 yards, but they could not observe the transaction take place or identify the seller from their vantage point. Upon completing the undercover purchase, Agent Salbidrez returned to the New Mexico State Police Office in Española, met with Sergeant Valdez, briefed Valdez on the undercover purchase, and provided Valdez with the information he had obtained from and observed about the seller, including the name "Adrian," the phone number given to him by the seller, and a physical description and approximate age of the seller.
On the same day, based on the information Agent Salbidrez provided, Sergeant Valdez utilized an electronic database, Criminal Justice Information System ("CJIS"), to conduct a search. Sergeant Valdez narrowed the search by looking for people with the name "Adrian Lucero" that fit the approximate age range Agent Salbidrez had described. Sergeant Valdez focused his CJIS search to an Adrian E. Lucero who had an address in Española and who was within the age range (DOB 5/7/82) that Agent Salbidrez had described. Sergeant Valdez retrieved information from CJIS regarding prior arrests for Adrian E. Lucero, including a July 4, 2000 arrest for possession of a controlled substance (methamphetamine). Sergeant Valdez also obtained a driver's license number and an address for Adrian E. Lucero (a P.O. box in Española, New Mexico) from CJIS. Using Adrian E. Lucero's driver's license number obtained from CJIS, also on October 10, 2001 Sergeant Valdez requested a New Mexico Driver's License History Inquiry from a New Mexico State Police dispatcher. From the report provided, Sergeant Valdez was able to verify the information acquired in CJIS including Adrian E. Lucero's name, date of birth, social security number, driver's license number and address in Española.
Sergeant Valdez then contacted the Inspector General's Office for the Motor Vehicle Department and requested a New Mexico Department of Motor Vehicle ("DMV") driver's license photo of Adrian E. Lucero, providing the Inspector General's Office with the driver's license number he had obtained. On October 11, 2001, the photograph obtained from DMV was presented to Agent Salbidrez, who misidentified Adrian E. Lucero as the person who sold Agent Salbidrez cocaine on October 10, 2001.*fn2 On October 11, 2001, the same photograph was presented to the CI, who identified Adrian E. Lucero as the person from whom Agent Salbidrez had purchased cocaine on October 10, 2001. Def. UMF 16.
The information Sergeant Valdez learned through CJIS and the New Mexico Driver's License History Inquiry, including the fact that Adrian E. Lucero had a criminal history, was later confirmed by a National Crime Information Center ("NCIC") inquiry that Valdez ran on October 19, 2001. Both officers believed that the information they had obtained, including Plaintiff's Española address, his prior arrest for a drug-related crime, the fact that Plaintiff was the same approximate age as the person from whom Agent Salbidrez had purchased cocaine on October 10, 2001, and that the photograph of Plaintiff was visually identified by Agent Salbidrez as the suspect based on Agent Salbidrez' interaction with the suspect during a hand-to-hand undercover buy, in addition to the confidential informant's visual identification, was sufficient to establish probable case for arrest.*fn3
In an effort to make further cocaine purchases and potentially identify other drug traffickers, Agent Salbidrez called the phone number Adrian had provided, but Salbidrez was unable to make any further contact with Adrian. Agent Salbidrez also drove to the trailer park where he had purchased drugs from Adrian. Children at the trailer park told Agent Salbidrez that Adrian was gone, possibly to Chimayo, New Mexico. Beyond Agent Salbidrez' attempts to locate or contact the suspect to make additional drug buys, neither Sergeant Valdez nor Agent Salbidrez conducted any further investigation; they did not believe that Agent Salbidrez' inability to track down and make additional drug purchases from Adrian invalidated the probable cause already established.
Defendants did not make any further effort to correctly identify the person who sold cocaine to Salbidrez on October 10, 2001. Defendants did not check the phone records of the number given to Salbidrez by the suspect. Those phone records would have shown that the phone number was registered to Adrian Dominguez, that Adrian Dominguez was the same age as Plaintiff and listed a Chimayo address, and that the phone usage showed a very high volume of calls to and from the number during the period surrounding October 10, 2001.
On April 19, 2002, Agent Salbidrez testified at a grand jury proceeding targeting Plaintiff regarding the October 10, 2001 undercover purchase. The grand jury indicted Plaintiff for the felony of trafficking in a controlled substance. An arrest warrant was issued and Plaintiff was arrested on or about June 1, 2002. Plaintiff was incarcerated for 24 days, after which he was on house arrest until the time of trial. Both Sergeant Valdez and Agent Salbidrez testified at Plaintiff's February 6, 2003 criminal trial and Agent Salbidrez, again, as he had during the investigation, identified Plaintiff as the person who sold him cocaine on October 10, 2001. The jury found Plaintiff not guilty, and the trial judge apologized to Plaintiff after the acquittal.
At a hearing on a motion to suppress in 2007, a judge in an unrelated case, State v. Patrick Quintana, questioned the credibility of Agent Salbidrez after Salbidrez testified that he had observed an incident that he had failed to note in his written report.
Defense experts, Bill Rehm and Samuel Candelaria, concluded that the facts and circumstances known to Defendants were sufficient to allow a reasonable police officer to conclude that probable cause existed to make an arrest. Plaintiff's experts, Darrel G. Hart and Lou Reiter opined drug sellers often falsely identify themselves.
I. Preliminary Matter - Defendants' Motion to Strike Plaintiff's Exhibits
In their Motion to Strike, Defendants request that all of Plaintiff's exhibits (A - O) filed with his two Responses to the summary judgment motion be stricken.
Grand Jury and Trial Testimony and Transcripts of Interviews. Plaintiff's Exhibit G consists of an excerpt of the testimony of Agent Salbidrez during the grand jury proceedings in Plaintiff's case. Plaintiff's Exhibits A, C, D, I, O, and a portion of B consist of excerpts of testimony of witnesses who testified at Plaintiff's criminal trial. Exhibit A contains testimony of Plaintiff's aunt, Lenora Crow, Plaintiff's sister, Roxanne Lucero, and Plaintiff's mother, Theresa Lucero. These witnesses testified to the effect that Plaintiff was living with his sister in Albuquerque, New Mexico on October 10, 2001 and working for his aunt in Edgewood, New Mexico around that time, and that Plaintiff and his sister would visit their mother in Española on weekends because the mother worked during the week. Exhibit C contains testimony of Tomas Alarid who, as investigator for the public defender representing Plaintiff in the criminal proceeding, located the phone records for the cellular phone number given to Salbidrez by the seller, as well as a yearbook photograph of Adrian Dominguez, to whom to phone was registered. Exhibit I contains the testimony of an employee of the Alltel phone company, who confirmed that the phone number was registered to Adrian W. Dominguez who had an address in Chimayo and a date of birth within a few months of Plaintiff's. Exhibits B, D, and O contain trial testimony by Agent Salbidrez and Sergeant Valdez.
Plaintiff's Exhibits E, F, H, M, and a portion of B contain transcriptions of recorded interviews of Defendants Salbidrez and Valdez, and of another officer Orlando Cordova, conducted by members of Plaintiff's criminal defense team.
Defendants move to strike these exhibits as unauthenticated,*fn4 and as hearsay. Plaintiff belatedly authenticated these exhibits in his "Response to Motion to Strike, Part 2" (Doc. No. 105). Affidavits made on personal knowledge are hearsay, yet they are admissible in summary judgment proceedings. The trial testimony is admissible, just as an affidavit by these witnesses would be admissible, in a summary judgment proceeding. The testimony of these witnesses does not contain hearsay; rather the testimony contains information within the knowledge of those testifying. "[T]ranscripts are not 'hearsay' merely because they consist of statements made by a witness in a prior proceeding, any more than an affidavit or a deposition offered in support of a motion for summary judgment is inherently hearsay." Ricupero v. Wuliger, Fadel & Beyer, 1994 WL 483871 *4 (N.D. Ohio 1994). In addition, the transcribed interview and testimony of Agent Salbidrez in Exhibits B, G, H, M, and O are not offered to prove the truth of the matters asserted; instead, they are offered to show that Salbidrez gave different versions of how he came up with the last name Lucero during his investigation. Exhibits B, D, E, G, H, M and O are also not hearsay because the documents constitute statements by a party (Salbidrez and/or Valdez) offered against the party under Federal Rule of Evidence 801(d)(2). The Valdez interview (Exhibit E) shows that Valdez did not follow up on the cellular phone records to find Adrian Dominguez. Exhibit M shows that when Salbidrez went back to the trailer park to look for Adrian, some neighborhood children told him Adrian was in Chimayo.
Trial Judge's Remarks after Plaintiff Acquitted. Plaintiff's Exhibit N is an excerpt from the transcript of Plaintiff's criminal trial. It is not testimony of a witness, but rather the remarks of the trial judge after the jury acquitted Plaintiff. Defendants contend that this exhibit constitutes unauthenticated hearsay. As with the previously discussed exhibits, this exhibit was originally presented without being authenticated, but Plaintiff subsequently authenticated this exhibit, albeit belatedly. These remarks are not hearsay insofar as they are not offered to prove the truth of the matters asserted, but rather to show that the judge apologized to Plaintiff after the jury found him not guilty.*fn5
Defendants also argue that these exhibits are irrelevant. These exhibits are of limited relevance, as further discussed in the rest of this Memorandum Opinion, but they will not be stricken on that ground. Accordingly, Defendants' Motion to Strike will be denied as to Plaintiff's Exhibits A, B, C, D, E, F, G, H, I, M, N, and O.
Transcript of Hearing in 2007 in Unrelated Case. Plaintiff's Exhibit J is a partial transcript of a hearing on a motion to suppress evidence in an unrelated case, State of New Mexico v. Patrick Quintana. At the March 20, 2007 hearing, the trial judge, Hon. Michael E. Vigil, questioned the witness Mario Salbidrez, about his testimony. Salbidrez had prepared a written report in which he indicated that another officer, Sergeant Altonji, had observed a drug sale that provided probable cause for a stop of the suspect. At the hearing, Salbidrez apparently testified that he, too, had observed the sale. The judge stated that he found it "hard to believe" that Salbidrez had observed the sale because Salbidrez had not written in his report that he observed it. "I find your credibility is in real question here with me because I find that . . . if you can't answer the question, I find you unbelievable." Pl. Ex. J at 3. The judge then asked Salbidrez why he hadn't put his own observation in his report, and Salbidrez said he didn't know why he indicated in his report "only what Sergeant ...