United States District Court, D. New Mexico
January 4, 2017
SIMON ARMIJO, Plaintiff,
RONY D. HAYES, et al., Defendants.
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 most favorable to him.
Panis v. Mission Hills Bank, N.A., 60 F.3d 1486,
1490 (10th Cir. 1995). Admissible evidence includes reference
to affidavits, depositions, or specific exhibits. See
Adler, 144 F.3d at 671; Fed.R.Civ.P. 56(c).
defendant has moved for summary judgment on the basis of
qualified immunity, the inquiries are: (1) whether the
plaintiff has demonstrated a violation of a constitutional
right; and (2) whether that right was clearly established at
the time the right was allegedly violated. Pearson v.
Callahan, 555 U.S. 223, 232-33 (2009). The Court may
exercise its discretion in deciding which of the two
inquiries to address first. Id. at 236.
is clearly established if it is “sufficiently clear
that every reasonable official would have understood that
what he is doing violates that right.” Reichle v.
Howards, 123 S.Ct. 2088, 2093 (2012). A right may be
clearly established by either “a Supreme Court or Tenth
Circuit decision on point” or the “weight of
authority from other courts.” Medina v. City of
Denver, 960 F.2d 1493, 1498 (10th Cir. 1992). A
plaintiff need not provide a case “directly on point,
but existing precedent must have placed the statutory or
constitutional question beyond debate.” Ashcroft v.
al-Kidd, 563 U.S. 731, 741 (2011) (citation omitted).
Supreme Court has repeatedly cautioned against defining a
clearly established right “at a high level of
generality.” Id. at 142. “The
dispositive question is ‘whether the violative nature
of the particular conduct is clearly
established.'” Mullenix v. Luna, 136 S.Ct.
305, 308 (2015) (quoting al-Kidd, 563 U.S. at 742)
(emphasis in original). “[S]pecificity is especially
important” in cases implicating the Fourth Amendment,
as “‘[i]t is sometimes difficult for an officer
to determine how the relevant legal doctrine . . . will apply
to the factual situation the officer confronts.'”
Mullenix, 136 S.Ct. at 308 (quoting Saucier v.
Katz, 533 U.S. 194, 205 (2001)).
Whether Defendant Griego is entitled to Summary Judgment
regarding his pre-warrant conduct
Response, Plaintiff responds to and disputes a number of
facts as relayed in Defendant Griego's Motion. (Doc. 99
at 3-9). However, Plaintiff does not reference affidavits,
depositions, or other portions of the record in accordance
with Federal Rule of Civil Procedure 56(c). (See
Doc. 99 at 3-9). Rather, Plaintiff cites exhibits that he did
not attach to his Response. (Doc. 99 at 5, 8). Because
Plaintiff has not supported his assertions of fact with
admissible evidence, the Court finds that there is no genuine
issue of material fact.
whether Defendant Griego is entitled to judgment as a matter
of law on qualified immunity grounds, the Court will analyze
whether Plaintiff's rights were clearly established
first. As a general proposition, it is clearly established
that warrantless searches and seizures violate the Fourth
Amendment. See United States v. Davis, 290 F.3d
1239, 1242 (10th Cir. 2002) (“With few exceptions, the
question whether a warrantless search of a home is reasonable
and hence constitutional must be answered no.”)
(citations omitted). However, Plaintiff has not provided, nor
has the Court been able to find, any Tenth Circuit or Supreme
Court case that concludes Defendant Griego's particular
conduct violates the Fourth Amendment. The Supreme Court has
held “it is a violation of the Fourth Amendment for
police to bring members of the media or other third parties
into a home during the execution of a warrant when the
presence of the third parties in the home was not in aid of
the execution of the warrant.” Wilson v.
Layne, 526 U.S. 603, 614 (1999). However, in
Wilson, police officers invited a media crew to film
the execution of an arrest warrant. Id. at 605-609.
That scenario is distinct from the circumstances here, where
a state police officer requested the assistance of another
state police officer in identifying suspicious items found
during the execution of a search warrant. Thus, the
“violative nature” of Defendant Griego's
“particular conduct” has not been clearly
established by Supreme Court or Tenth Circuit precedent.
cites State v. Moran, 2008-NMCA-160, in support of
his argument that Defendant Griego violated his clearly
established constitutional rights. (Doc. 99 at 9-12). In
Moran, sheriffs executed a search warrant of a home
looking for evidence of criminal sexual penetration.
Moran, 2008-NMCA-160, ¶ 3. During the search, a
sheriff became suspicious about animal skulls and antlers on
display in and around the home. Id. Eventually, the
sheriff called an NMDGF officer to the scene, and the officer
searched the home and seized a number of game animal items
without a warrant. Id. In the resulting criminal
case, the homeowner moved to suppress all evidence the NMDGF
officer seized, arguing the officer's warrantless search
and seizure violated the Fourth Amendment. Id.,
¶ 4. The New Mexico Court of Appeals agreed, holding
that the NMDGF officer violated the homeowner's Fourth
Amendment rights by entering the home, searching the home,
and seizing property, all without a warrant. Id.,
¶¶ 9, 13-14. Specifically, the Court of Appeals
held the NMDGF officer was not legally present in the home
even after he was invited onto the property by the sheriff.
Id., ¶¶ 12-14.
Moran is factually similar to this case. In both
circumstances, police officers executed a search warrant
looking for evidence of a particular crime. In the course of
their searches, the officers executing the warrant became
suspicious about game animal parts and called an NMDGF
officer for assistance. Both here and in Moran, the
NMDGF officer entered the property under the authority of a
search warrant that did not authorize officers to search and
seize evidence of crimes related to game animal parts. The
only potentially material difference is that Defendant Griego
obtained a warrant before seizing Plaintiff's property.
Moran is factually similar to this case,
Moran does not establish that Defendant Griego
violated a clearly established right. As stated, one way to
show a clearly established right is to provide a Supreme
Court or Tenth Circuit Court of Appeals opinion on point.
Medina, 960 F.2d at 1498. The New Mexico Court of
Appeals is neither the Tenth Circuit nor the Supreme Court,
so its decisions do not clearly establish a right on their
own. The second way to demonstrate a clearly established
right is through the weight of authority from other courts.
Id. However, one state court of appeals decision
does not establish the weight of authority from other courts.
See Stewart v. Donges, 915 F.2d 572, 582 (10th Cir.
1990) (finding clearly established right through the weight
of authority of six different circuit courts of appeals'
decisions). Despite the factual similarity to Moran,
it is not “beyond debate” that Defendant Griego
violated Plaintiff's Fourth Amendment rights.
al-Kidd, 563 U.S. at 741. Because Plaintiff has
failed to show that Defendant Griego violated a clearly
established right, Defendant Griego is entitled to qualified
immunity regarding his initial conduct on Plaintiff's
Whether Defendant Griego is entitled to Summary Judgment
regarding his post-warrant conduct.
Griego argues he is entitled to summary judgment on any
claims arising from his conduct following acquiring a warrant
because the warrant was facially valid. (Doc. 98 at 20).
Further, Defendant Griego argues that even if his subsequent
search and seizure violated Plaintiff's constitutional
rights, Defendant Griego is still entitled to qualified
immunity. (Doc. 98 at 21, 25). Liberally construed, Plaintiff
responds that Defendant Griego's search warrant was
invalid because Defendant Griego falsified information to
obtain the warrant. (Doc. 99 at 6). Plaintiff bases this
argument on two premises: Plaintiff has not been convicted of
illegally possessing deer parts, and the search did not
result in the seizure of some items named in the search
warrant. (Doc. 99 at 6).
argument mirrors his previous argument regarding Defendant
Hays' search warrant, which the Court rejected. (Doc. 71
at 15-17). Here, as before, Plaintiff does not dispute that
Defendant Griego's warrant contains sufficient
information to establish probable cause; rather, Plaintiff
alleges that Defendant Griego lied to secure the warrant.
(See Docs. 71 at 15; 99 at 6). As explained
previously, Plaintiff must “make a substantial showing
of deliberate falsehood or reckless disregard for the truth,
such that would be needed to challenge the presumed validity
of an affidavit supporting a search warrant.” Snell
v. Tunnell, 920 F.2d 673, 698 (10th Cir. 1990).
Plaintiff must make “a specific affirmative showing of
dishonesty by the applicant, i.e. knowledge of
[Plaintiff's] innocence or that a witness was
Plaintiff argues Defendant Griego must have falsified facts
because Plaintiff has not been convicted of illegally
possessing deer heads or deer meat. (Doc. 99 at 6).
Plaintiff's argument does not logically follow; just
because he has not been convicted of illegal possession of
deer heads or meat does not mean Defendant Griego was
deliberately dishonest or acted with reckless disregard for
the truth when he applied to search for illegally held deer
heads and meat. Plaintiff must make a substantial showing
that Defendant Griego was deliberately dishonest in swearing
he believed Plaintiff was concealing unlawfully possessed
deer heads and meat. See Snell, 920 F.2d at 698.
Plaintiff has yet to do so.
Plaintiff contends that Defendant Griego falsified facts
because the search did not result in the seizure of
photographs of unlawful kills or “implements used to
process big game.” (Doc. 99 at 6). Plaintiff's
argument appears to be based on a misapprehension of what
Defendant Griego swore to in his affidavit. Defendant Griego
did not swear that Plaintiff was concealing photographs of
unlawful kills or implements used in processing big game.
Rather, Defendant Griego swore that he “ha[d] reason to
believe” that Plaintiff was concealing the photographs
and implements. (Doc. 43-2 at 10). In support of that belief,
Defendant Griego swore that, in his experience, it is common
for poachers to keep heads and antlers, which Plaintiff did,
and that it is common for such individuals to also keep
photographs of their kills. (Doc. 43-2 at 11). Plaintiff does
not provide any evidence showing Defendant Griego was
deliberately false or dishonest in stating his belief and
experiences. Accordingly, Plaintiff has failed to establish
Defendant Griego falsified information in order to obtain the
search warrant. Finally, even assuming Defendant Griego
violated Plaintiff's Fourth Amendment rights after he
obtained the search warrant, Plaintiff has not provided case
law establishing Defendant Griego violated Plaintiffs clearly
established rights. Here, as before, Plaintiff has not shown
it was clearly established that a state law enforcement
officer violates the Fourth Amendment by entering a property
at the invitation of another state law enforcement officer
executing a valid search warrant, observing evidence,
obtaining a different search warrant based on those
observations, and then returning and executing the search
warrant. Thus, even if Defendant Griego violated the Fourth
Amendment after he obtained a search warrant, he is still
entitled to qualified immunity.
foregoing reasons, Plaintiff has not established a genuine
dispute as to a material fact, and Defendant is entitled to
judgment as a matter of law on qualified immunity grounds. IT
IS THEREFORE RECOMMENDED that Defendant Griego's
Motion for Summary Judgment on the Basis of Qualified
Immunity be GRANTED and all claims against Defendant
Griego be DISMISSED WITH PREJUDICE.
PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF SERVICE
of a copy of these Proposed Findings and Recommended
Disposition they may file written objections with the Clerk
of the District Court pursuant to 28 U.S.C. § 636(b)(1).
A party must file any objections with the Clerk of the
District Court within the fourteen-day period if that party
wants to have appellate review of the proposed findings and
recommended disposition. If no objections are filed, no
[appellate review will be allowed.
 Doc. 2 is Plaintiff's Civil
Rights Complaint Pursuant to 42 U.S.C. § 1983 (the
“Complaint”). Plaintiff's Complaint is
verified, (Doc. 2 at 6), therefore it may be considered as an
affidavit for purposes of summary judgment. Conway v.
Smith, 853 F.2d 789, 792 (10th Cir. 1988).
 A pro se litigant's
“pleadings are to be construed liberally and held to a
less stringent standard than formal pleadings drafted by
lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991).