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Armijo v. Hayes

United States District Court, D. New Mexico

January 4, 2017

SIMON ARMIJO, Plaintiff,
RONY D. HAYES, et al., Defendants.



         THIS MATTER is before the Court on Defendant Robert Griego's Motion for Summary Judgment on the Basis of Qualified Immunity (the “Motion), (Doc. 98), filed November 1, 2016; Plaintiff's Opposition and Response to Defendant Griego's Motion for Summary Judgment on the Basis of Qualified Immunity (the “Response”), (Doc. 99), filed November 15, 2016; and Defendant Griego's Reply in Support of Motion for Summary Judgment on the Basis of Qualified Immunity (the “Reply”), (Doc. 100), filed December 2, 2016. United States District Judge James O. Browning referred this case to Magistrate Judge Carmen E. Garza to perform legal analysis and recommend an ultimate disposition. (Doc. 4). Having considered the parties' filings and the relevant law, the Court RECOMMENDS that Defendant Griego's Motion be GRANTED and all claims against him be DISMISSED WITH PREJUDICE.

         I. Background

         This case arises out of Defendants' search and seizure of Plaintiff's property. On April 17, 2012, Defendant Rony Hays executed a search warrant on Plaintiff's property. (Doc. 2 at 3). The search warrant authorized Defendant Hays to search for evidence of trafficking of a controlled substance, namely marijuana. (Doc. 43-1 at 1-3, 5). Defendant Hays seized numerous items under the warrant, including approximately 22 ounces of marijuana. (Doc. 43-2 at 7-8).

         While executing the search warrant, Defendant Hays found several deer heads, various deer parts, and a deer carcass in a shed. (Doc. 43-2 at 10). Defendant Hays observed that several of the deer heads had carcass tags on them, but some did not, and he did not see any carcass tag on the deer carcass. (Doc. 43-2 at 10). Suspicious about the various deer parts and their lack of identifying paperwork, Defendant Hays contacted Defendant Robert Griego, an officer employed by the New Mexico Department of Game and Fish (“NMDGF”).

         Defendant Griego arrived at Plaintiff's property twenty minutes after being called. (Doc. 43-2 at 11). When Defendant Griego arrived at the property, Plaintiff told Defendant Griego that he needed his own search warrant to search Plaintiff's property. (Doc. 2 at 7; Doc. 98 at 7).[1] Defendant Griego ignored Plaintiff and continued onto the property to join the officers at the shed. (Doc. 2 at 7; Doc. 98 at 7). Defendant Griego states he saw 15 to 20 deer heads on the floor of the shed, along with a deer carcass that was sawn in half. (Doc. 43-2 at 11). When asked about all the deer heads, Plaintiff told Defendant Griego he was a good hunter. (Doc. 43-2 at 11). Defendant Griego asked Plaintiff if he kept deer meat as well, to which Plaintiff responded that he did and that Defendant Griego could look at it if he wanted to. (Doc. 43-2 at 11).

         When asked about the carcass, Plaintiff represented that one of the tagged deer heads belonged to the carcass and that he killed said deer in November, 2011, on a private ranch. (Doc. 43-2 at 11). The tag on the identified deer head indicated that the deer was killed on November 26 or 27, 2011. (Doc. 43-2 at 11). Defendant Griego looked up 2011 deer hunt dates and noted that the only dates Plaintiff could have lawfully killed the deer were November 5-9 or 12-16, 2011. (Doc. 43-2 at 11). Defendant Griego then began walking to the front of the property, where Plaintiff again told him he needed a warrant; Defendant Griego responded he would obtain a warrant immediately. (Doc. 43-2 at 11).

         Based on his observations and his conversation with Plaintiff, Defendant Griego applied for a warrant, stating he had reason to believe that Plaintiff was concealing: (1) unlawfully possessed Mule Deer heads; (2) unlawfully possessed game meat; (3) photographs of unlawfully killed game animals; and (4) instruments used to process big game. (Doc. 43-2 at 10). Defendant Griego swore that, based on his experience: (1) individuals who illegally kill big game keep the heads and antlers; (2) these individuals often reuse game tags to make their kills appear legitimate; (3) game blood and hair do not last long outdoors; and (4) that individuals who kill big game illegally photograph their kills in the field. (Doc. 43-2 at 11). Defendant Griego obtained and executed a search warrant the same day, seizing numerous deer heads, parts, and meat, along with elk meat, a golden eagle carcass, and red-tailed hawk feathers. (Doc. 43-2 at 8, 13). Plaintiff was later arrested and charged by the United States Fish and Wildlife Service for his possession of the golden eagle carcass and red-tailed hawk feathers. (Doc. 43-3 at 3).

         Following the searches and seizures, Plaintiff filed a Civil Rights Complaint Pursuant to 42 U.S.C. § 1983 (the “Complaint”). Plaintiff raised several claims, all of which were previously dismissed except one currently before the Court. (See Docs. 76, 77). Plaintiff's only remaining claim is that Defendant Griego violated his Fourth Amendment rights. (Doc. 2 at 7-9). The Court previously recommended denying summary judgment in Defendant Griego's favor. (Doc. 71 at 27-31). The Court found that there was a genuine dispute of material fact as to whether Defendant Griego searched Plaintiff's property without a warrant or Plaintiff's consent, (Doc. 71 at 29-30), and that the law was clearly established that searches violate the Fourth Amendment when conducted without a warrant or an exception to the warrant requirement. (Doc. 71 at 30-31).

         Defendant Griego then filed the instant Motion. Defendant Griego concedes for purposes of the Motion that he entered Plaintiff's property without Plaintiff's consent and argues he is entitled to judgment as a matter of law regardless. First, Defendant Griego argues that his conduct before obtaining a warrant was not a search within the meaning of the Fourth Amendment because his conduct falls within the plain-view exception to the warrant requirement. (Doc. 98 at 14-16). Defendant Griego asserts that he was lawfully present on Plaintiff's property because he was also authorized under state law to execute the original search warrant, and he only observed evidence in plain view. (Doc. 98 at 14-16). Even if his conduct did constitute a search, Defendant Griego contends the search did not violate the Fourth Amendment, as it was authorized by the warrant obtained by Officer Hays. (Doc. 98 at 17-19). Finally, even assuming Defendant Griego's conduct did violate Plaintiff's Fourth Amendment rights, Defendant Griego argues that he is entitled to qualified immunity. (Doc. 98 at 20). As for his conduct after obtaining the warrant, Defendant Griego argues that he is entitled to qualified immunity because he acted pursuant to a facially valid warrant. (Doc. 98 at 20-25).

         Plaintiff timely responded to Defendant Griego's Motion. (Doc. 99). Although Plaintiff disputes a number of facts as set forth in the Motion and described above, Plaintiff does not refer to affidavits or other portions of the record. (Doc. 99 at 3-9). For instance, Plaintiff states he does not recall any conversation with Defendant Griego, but Plaintiff does not attach an affidavit denying the conversation occurred. (Doc. 99 at 8). Plaintiff reiterates his argument that Defendant Griego's presence and actions before obtaining a warrant violated the Fourth Amendment. (Doc. 99 at 4-5). Plaintiff also reiterates his previous allegations that Defendant Griego falsified information in order to obtain a search warrant. (Doc. 99 at 5-6). Plaintiff argues that the instant case is nearly identical to State v. Moran, 2008-NMCA-160, 145 N.M. 297, 197 P.3d 1079, where the New Mexico Court of Appeals suppressed evidence of seized game animal parts. In Moran, the Court of Appeals held that an NMDGF officer violated the Fourth Amendment by searching a residence and seizing game animal parts without a warrant or the homeowner's consent. Moran, 2008-NMCA-160, ¶¶ 3, 13-14. Thus, Plaintiff argues, Moran clearly established his Fourth Amendment right, and Defendant Griego is not entitled to summary judgment in his favor. (Doc. 99 at 12).

         II. Analysis

         a. Legal Standards for Summary Judgment and Qualified Immunity.

         The Court must grant summary judgment if “the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the burden of making a prima facie demonstration that there is no genuine issue of material fact. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-71 (10th Cir. 1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). A fact is material if it might affect the outcome of the case under the governing substantive law. Anderson v. Liberty Lobby, Inc.477 U.S. 242, 248 (1986). An issue is genuine if a reasonable jury could resolve the issue in favor of the nonmoving party based on the evidence in the record. Id. In order to create a genuine issue of fact, the nonmoving party must provide admissible evidence, which the Court views in the light ...

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