United States District Court, D. New Mexico
DAVID G. HOWL, Plaintiff,
NOE J. ALVARADO, Individually, Defendant.
J. Macke, Brown Law Firm, Brown & Gurule, Albuquerque,
New Mexico, for Defendant.
D. Dixon, Attorney and Counselor at Law, PA., Portales, New
Mexico, for Plaintiff.
ORDER GRANTING MOTION TO DISMISS ON THE BASIS OF
MATTER comes on for consideration of Defendant Noe J.
Alvarado's Motion to Dismiss on the Basis of Qualified
Immunity filed July 7, 2017. ECF No. 15. Upon consideration
thereof, the motion is well taken and should be granted.
David G. Howl seeks damages against New Mexico State Police
Officer Noe J. Alvarado for a traffic stop and search of Mr.
Howl's vehicle, which resulted in his arrest, pretrial
detention, conviction, sentence, and incarceration. Mr. Howl
contends that these events infringed on his Fourth and
Fourteenth Amendment rights against wrongful search and
seizure, false arrest, and malicious prosecution, all in
violation of 42 U.S.C. § 1983. ECF No. 8, Amended
Complaint, at 1.
Howl was convicted by a jury of possession of a controlled
substance, possession of drug paraphernalia, failure to
maintain traffic lane, and no proof of insurance. On direct
appeal, the New Mexico Court of Appeals held that Mr. Howl
had made a prima facie case of ineffective assistance of
counsel based upon trial counsel's failure to move to
suppress inculpatory evidence. State v. Howl, 381
P.3d 684, 690 (N.M. Ct. App. 2016), cert, denied.
No. S-l-SC-36038 (N.M. Sept. 12, 2016). The court of appeals
determined that the officer, aided by a passenger, conducted
a warrantless search of Mr. Howl's vehicle and that the
evidence obtained from the vehicle and a subsequent search of
Mr. Howl incident to his arrest warranted suppression.
Id. at 689. The state appellate court remanded the
case to the trial court for an evidentiary hearing to
determine whether, notwithstanding this omission, Mr. Howl
received effective assistance of counsel. Id. at
693. It directed the trial court to vacate the sentence and
to dismiss the matter with prejudice if the State were unable
to overcome the prima facie showing of ineffective assistance
of counsel. Id. In the interest of judicial economy,
the court of appeals also rejected all of Mr. Howl's
other challenges to the convictions and sentence, including a
challenge to the sufficiency of the evidence. Id. at
remand, the state trial court granted Mr. Howl's motion
to dismiss, vacated Mr. Howl's sentence, and dismissed
the matter with prejudice. ECF No. 8, ¶¶ 28-29.
defeat a motion to dismiss, Mr. Howl must allege sufficient
facts to state a claim that is plausible on its face.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009);
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). In deciding whether the facts alleged could lead to
the inference that the defendant is responsible for the
misconduct, the court disregards facts that are essentially
legal conclusions. Iqbal, 556 U.S. at 678;
Twombly, 550 U.S. at 555. Given the defense of
qualified immunity, Mr. Howl must show that the officer's
actions violated a constitutional or statutory right and that
the right claimed was clearly established. Pearson v.
Callahan, 555 U.S. 223, 231 (2009). A court is not
required to decide both elements if the case can be resolved
on one or the other. Id. at 236. Here, "when a
warrantless arrest or seizure is the subject of a § 1983
action, the defendant is entitled to qualified immunity if a
reasonable officer could have believed that probable cause
existed to arrest or detain the plaintiff." Cortez
v. McCauley, 478 F.3d 1108, 1120 (10th Cir. 2007) (en
basis of Mr. Howl's § 1983 claim is that he was
arrested, detained, convicted, sentenced, and incarcerated
based upon evidence that should have been suppressed. For the
purposes of this motion, the officer assumes that the initial
search of Mr. Howl's vehicle violated the Fourth
Amendment. ECF No. 15, at 4. Accordingly, the court assumes
that in a criminal trial the contraband (a glass pipe used
for methamphetamine and the methamphetamine contained in a
cigarette pack found on Mr. Howl's person) would be
suppressed given a proper motion.
this is a civil action where Mr. Howl essentially seeks
application of the exclusionary rule notwithstanding the
reasonable suspicion for the stop and ample probable cause
for the arrest. Courts have been reluctant to extend the
exclusionary rule beyond the criminal context because its
purpose is to deter police misconduct and safeguard Fourth
Amendment rights, rather than serve as personal
constitutional right of those aggrieved. Lingo v. City of
Salem, 832 F.3d 953, 957-59 (9th Cir. 2016); Townes
v. City of New York, 176 F.3d 138, 145 (2d Cir. 1999);
Wren v. Towe, 130 F.3d 1154, 1158 (5th Cir. 1997).
"Victims of unreasonable searches or seizures may
recover damages directly related to the invasion of their
privacy - including (where appropriate) damages for physical
injury, property damage, injury to reputation, etc.; but such
victims cannot be compensated for injuries that result from
the discovery of incriminating evidence and consequent
criminal prosecution." Townes, 176 F.3d at 148.
Application of the exclusionary rule in the civil context
comes at a significant cost: "officers could be forced
to pay damages based on an overly truncated version of the
evidence." Black v. Wigington, 811 F.3d 1259,
1268 (11th Cir. 2016). Thus, at least six circuits have
concluded that it does not apply in the civil context.
See also Vaughn v. Chapman, 662 F.App'x 464, 467
(7th Cir. 2016); Machado v. Weare Police Dep't
494 F.App'x 102, 106 (1st Cir. 2012) (per curiam). Though
Mr. Howl attempts to distinguish some of these cases, the
bottom line is that the law is not clearly established in the
Tenth Circuit, such that he could rely upon the exclusionary
rule in pressing his federal civil claims; indeed, the
converse appears to be true.
court recognizes that Mr. Howl maintains he is factually
innocent and complains that no probable cause would support
his arrest and pretrial detention. ECF No. 8, ¶¶
10-12, at 3-4. But this is belied by the court of
appeals' opinion, which rejected Mr. Howl's
sufficiency of the evidence arguments employing the beyond a
reasonable doubt standard. Howl, 381 P.3dat691.
Although Mr. Howl also maintains that the criminal activity
was solely attributable to his passenger and that the officer
knew it, the court of appeals noted that the jury was free to
reject his explanation of how the contraband appeared. Id.
officer is not required to establish guilt beyond a
reasonable doubt or to eliminate all other potential suspects
before making an arrest, so long as there is a
'substantial probability' that the suspect committed
the crime." Patel v. Hall 849 F.3d 970, 982
(10th Cir. 2017). Additionally, the fact that evidence would
not be admissible at trial does not make it unusable to
support probable cause. See United States v.
Swingler, 758 F.2d 477, 487 (10th Cir. 1985). The
officer surely had enough to detain and arrest Mr. Howl: a
glass pipe used to ingest methamphetamine was found in Mr.
Howl's vehicle and methamphetamine was found on his
person. See Hartman v. Moore, 547 U.S. 250, 258
(2006) (lack of probable cause to initiate a criminal action
is required for malicious prosecution); Atkins v.
Lanning, 556 F.2d 485, 487 (10th Cir. 1977) (police
officer is not liable given probable cause to arrest, even if
suspect later turns out to be innocent). Moreover, there is
an obvious and critical problem with causation: the
prosecutor's decision to charge Mr. Howl and his
counsel's failure to file a motion to suppress cannot be
attributed to the officer. Although Mr. Howl argues that it
was reasonably foreseeable that the officer's conduct
would result in Mr. Howl's pretrial detention and that
the officer should be jointly and severally liable with other
actors, the reasonable foreseeability argument could be made
in every case and Mr. Howl has not named other actors. In any
event, no facts suggest that the officer made the decision to
prosecute or influenced Mr. Howl's public defender. Under
these circumstances, Mr. Howl cannot establish a redressable
Fourth Amendment violation. Because there was probable cause
to arrest and prosecute Mr. Howl, the officer is entitled to
qualified immunity, and Mr. Howl has failed to state a claim
that he is entitled to relief.
Howl argues that Chavez v. Board of County
Commissioners,31 P.3d 1027 (N.M. Ct. App. 2008),
supports application of the exclusionary rule to § 1983
claims. But Chavez involved a warrantless entry into
and search of a home during a child welfare check, not the
discovery of contraband (that arguably should have been
suppressed) that resulted in arrest and detention. Mr. Howl
also argues that the court should be hesitant to adopt a rule
that allows an officer who obtained evidence ...