United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
STEPHAN M. VIDMAR, United States Magistrate Judge
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.
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.
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
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
OFFICER CRAYTON:Is that a yes or no?
MELISSA McCULLERS: [Inaudible]
OFFICER CRAYTON:Okay, step out of the vehicle. Put your map
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