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McCullars v. Crayton

United States District Court, D. New Mexico

July 27, 2017

MELISSA MCCULLARS, Plaintiff,
v.
CORY CRAYTON, Defendant.

          MEMORANDUM OPINION AND ORDER

          STEPHAN M. VIDMAR, United States Magistrate Judge

         THIS MATTER is before the Court on Defendant's Motion for Partial Summary Judgment on Recoverable Damages, filed March 31, 2017. [Doc. 29]. Plaintiff responded on April 11, 2017. [Doc. 30]. Defendant replied on April 25, 2017. [Doc. 31]. Having considered the briefing, the record, and the relevant law, and being otherwise fully advised in the premises, the Court finds that Defendant's motion is well-taken and will be GRANTED.

         Background

         Plaintiff was the passenger in a vehicle traveling in Lincoln County, New Mexico, on the evening of April 17, 2014. [Doc. 29] at 2. Defendant, a New Mexico State Police officer, stopped the vehicle for speeding. Id. When he approached the vehicle, he smelled marijuana. Id. In the course of issuing the speeding ticket to the driver, Defendant began questioning both occupants of the vehicle. Id. at 3-4; [Doc. 1] at 10-11. He asked them whether they had drugs, drug paraphernalia, or large amounts of cash inside the vehicle. [Doc. 1] at 10. They responded in the negative. Id.; [Doc. 29] at 2-3. Defendant then asked for permission to search the vehicle.

         Plaintiff replied “no.” [Doc. 29] at 3. What followed after Plaintiff declined to consent to the search was a lengthy, confusing colloquy during which Defendant attempted to obtain Plaintiff's permission to search the vehicle and Plaintiff provided increasingly opaque responses. Id. The pertinent portion of the exchange is excerpted below.

OFFICER CRAYTON:Okay, well I'm asking the questions right now. I can smell the marijuana in the vehicle. I'm asking for your consent. I'm not trying to coerce y'all or nothing. If you don't give me consent, I'm goin [sic] take the vehicle, I'm goin [sic] apply for a search warrant and if the judge grants me the search warrant, I'm going to search the vehicle. It's plain and simple how this is going to go. I could smell it as soon as I walked up to y'all. But it's your choice, yes or no.
I don't want to beat around the bush, it's either, I'm asking, can I search your vehicle?
MELISSA McCULLERS: I would prefer not to.
OFFICER CRAYTON:So is that a yes or no?
MELISSA McCULLERS: I mean, you're not going to find nothing.
OFFICER CRAYTON:Is that a yes or no?
MELISSA McCULLERS: [Inaudible]
OFFICER CRAYTON:Okay, step out of the vehicle. Put your map down.
MELISSA McCULLERS: It's just like all my personal stuff in here. We do live in here.

[Doc. 29] at 3. After this exchange, Defendant instructed Plaintiff and her companion to stand approximately fifty feet up the road from the vehicle. [Doc. 1] at 11. Defendant procured a “consent to search” form. Plaintiff ...


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