United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
HONORABLE CARMEN E. GARZA UNITED STATES MAGISTRATE JUDGE
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
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).
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”).
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). 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
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).
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).
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).
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).
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).
Legal Standards for Summary Judgment and Qualified
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 ...