United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
Robert Alderete (Mr. Alderete) brings claims under 42 U.S.C.
§ 1983 against Defendants City of Albuquerque (City) and
three individual police officers stemming from an alleged
unlawful seizure of Mr. Alderete and an alleged unlawful
search of his vehicle. COMPLAINT (Doc. No. 1-1). Mr. Alderete
also brings a federal claim of malicious prosecution against
Defendants and state-law claims of negligent hiring,
training, supervision, and retention, respondeat superior,
trespass, false arrest, false imprisonment, assault, and
battery. Id. Mr. Alderete's allegations arise
from an August 27, 2015 arrest that occurred when Mr.
Alderete and his companion, “Courtney Cowboy, ”
presented a personal check made out to Ms.
“Cowboy” for verification at a federal credit
union in Albuquerque. The check was written on an account
that had been previously closed due to fraud. Mr. Alderete
was arrested on charges of theft of identity, receipt of
stolen property, and possession of a firearm by a felon. The
charges were later dismissed without prejudice.
Police Officers Ignas Danius (Officer Danius), David Montano
(Officer Montano), and Christian D. Baker (Detective Baker)
seek summary judgment based on qualified immunity, asserting,
in part, that the officers did not unreasonably seize Mr.
Alderete or unreasonably search his vehicle because the
officers had a particularized and objective basis for
suspecting Mr. Alderete was engaged in criminal activity and
because the officers had probable cause to arrest
Due to their position that Mr. Alderete's arrest was
based on probable cause, Defendants generally contend that
all of Plaintiff's claims fail as a matter of law.
Alderete argues, in part, that Defendants are not entitled to
qualified immunity because the arresting officers “had
no specific facts that showed [Mr. Alderete] had any specific
intent to commit any fraud ….” Thus, according
to Mr. Alderete, Defendants should not be shielded by
qualified immunity because the officers “clearly
violated the requirement to find probable cause prior to
making an arrest” and because the officers' conduct
was objectively unreasonable. Id. at 16, 17.
counter that Mr. Alderete's primary argument regarding
whether he did or did not actually present the personal check
for payment at the bank, as opposed to merely attempt to
verify the check at a bank teller's window, is a
non-issue in terms of Defendants' summary judgment
motion. Defendants represent that when “Officer Danius
arrested Plaintiff, [Officer Danius] had developed probable
cause that Plaintiff may have committed multiple crimes, none
of which require evidence that Mr. Alderete attempted to cash
the check at issue.”
Alderete has filed a cross-motion for summary judgment,
arguing, in part, that because the undisputed facts show that
Mr. Alderete did nothing more than attempt to verify the
check in question, there was no basis for Officer Danius to
have detained and arrested Mr. Alderete, or to have searched
his vehicle. Mr. Alderete seeks summary judgment on only the
federal constitutional claims and the malicious prosecution
claim. He does not request summary judgment on any of the
state law claims. Mr. Alderete's Motion is fully
November 16, 2017, the Court held a hearing to address
various questions raised by the parties' cross-motions
for summary judgment. Both parties were represented by
counsel, who presented argument at the hearing. After the
hearing, Mr. Alderete submitted PLAINTIFF'S SUPPLEMENTAL
BRIEFING ON PLAINTIFFS' (sic) MOTION FOR SUMMARY JUDGMENT
AND MEMORANDUM OF LAW IN SUPPORT (Mr. Alderete's
Supplement) (Doc. No. 52). Mr. Alderete's counsel also
provided the Court with additional video recordings of the
incident. See Notice of Lodging of Exhibits 1-4
(Doc. No. 53).
considered the pertinent law and argument by counsel, along
with the briefing, supplemental briefing, and all of the
exhibits,  the Court finds that Defendants'
Motion for Summary Judgment should be granted in part and
denied in part, and that Plaintiff's Motion for Summary
Judgment should be denied, in part. The Court will require
additional briefing by both parties as explained below.
Judgment and Qualified Immunity
directs that “[t]he court shall grant summary judgment
if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a). A party asserting
that a fact is or cannot be genuinely disputed must support
such assertion by “citing to particular parts of
materials in the record, ” including affidavits, or
“showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the
fact.” Fed.R.Civ.P. 56(c)(1)(A), (B). In evaluating a
request for summary judgment, the Court construes the
non-movant's evidence as true, and all justifiable and
reasonable inferences are drawn in the non-movant's
favor. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986).
defeat summary judgment, the nonmoving party must come
forward with more than a showing of the “existence of a
scintilla of evidence in support of the plaintiff's
position;” “there must be evidence on which the
[trier of fact] could reasonably find for the
plaintiff.” Anderson, 477 U.S. at 252.
However, “[a]t the summary judgment stage the
judge's function is not to weigh the evidence and
determine the truth of the matter, but to determine whether
there is a genuine issue for trial.” Randle v. City
of Aurora, 69 F.3d 441, 453 (10th Cir. 1995) (citation
both parties move for summary judgment, the Court will
analyze each motion individually and on its own merits.
See Buell Cabinet Co. v. Sudduth, 608 F.2d 431, 433
(10th Cir. 1979) (explaining that the denial of one motion
for summary judgment does not always require the grant of a
cross-motion for summary judgment). “Cross-motions for
summary judgments, however, do authorize a court to assume
that there is no evidence which needs to be considered other
than that which has been filed by the parties.”
Brubach v. City of Albuquerque, 893 F.Supp.2d 1216,
1223 (D.N.M. 2012) (citation omitted).
Defendants have raised qualified immunity as a defense, Mr.
Alderete has the burden of showing that: (1) the Defendants
violated his Fourth Amendment rights; and (2) the Fourth
Amendment right was clearly established at the time
Defendants engaged in the challenged conduct. Malone v.
Bd. of Cnty. Comm'rs for Cnty. of Dona Ana, et al.,
__ F. App'x __, 2017 WL 3951706, *5-6 (10th Cir. Sept. 8,
2017) (unpublished). However, the Court views the facts in
the light most favorable to the non-moving party and resolves
all factual disputes and reasonable inferences in its favor.
Henderson v. Glanz, 813 F.3d 938, 952 (10th Cir.
“plaintiff successfully carries his two-part burden,
” “defendant bears the burden, as an ordinary
movant for summary judgment, of showing no material issues of
fact remain that would defeat the claim of qualified
immunity.” Estate of Booker v. Gomez, 745 F.3d
405, 2014 WL 929157, at *3 (10th Cir. 2014) (citations
omitted). Qualified immunity shields law enforcement
officials from liability for harm caused by reasonable
mistakes, “protecting all but the plainly incompetent
or those who knowingly violate the law.” Herrera v.
City of Albuquerque, 589 F.3d 1064, 1070 (10th Cir.
2009) (quotation omitted).
Material Facts (UMFs)
August 27, 2015, Officer Danius and Officer Montano each
received a call from the Albuquerque Police Department's
(APD's) dispatch about a possible forgery at the Kirtland
Federal Credit Union involving a female (later identified as
“Courtney Cowboy”) and a male (later identified
as Mr. Alderete), who had presented a personal check for
verification at the credit union. The banking term
“verification” refers to looking up a bank
account to see if there are sufficient funds to cover a
check. APD dispatch informed the officers that the pertinent
checking account had been closed some months before August
27, 2015 due to fraud.
arriving at the bank, Officer Danius found Mr. Alderete and
Ms. “Cowboy, ” who matched the physical
descriptions of the two individuals provided to Officer
Danius by police dispatch. Mr. Alderete and Ms.
“Cowboy” appeared to be waiting in an area near
bank teller windows. Officer Danius asked Mr. Alderete to
speak to him outside the bank. Officer Montano escorted Ms.
“Cowboy” outside the bank separately, where they
waited while Officer Danius interviewed Mr. Alderete. When
Mr. Alderete and Officer Danius moved outside, Officer Danius
stated that he wished to perform a quick pat down search of
Mr. Alderete before they talked. Mr. Alderete was agreeable,
telling Officer Danius “okay, yeah, go for it.”
Danius Video #1. After giving his driver's license to
Officer Danius, Mr. Alderete explained that he and Ms.
“Cowboy” had come to the credit union to verify a
check because the people for whom they had performed some
automobile repair work had paid them $50 by cash and $350 by
a check. Mr. Alderete reported that a person named
“Will” or “William” had given them
the check for work done a week earlier and that Mr. Alderete
had driven his vehicle to the bank with Ms.
“Cowboy” to verify the check that they had
unsuccessfully tried to verify by telephone. Mr. Alderete
stated: “we actually came here to get [the check]
verified, to cash it because we did contract labor for these
people - I work on cars.” Ex. A-2 at 3. Mr. Alderete
repeatedly told Officer Danius that he and Ms.
“Cowboy” came to the bank because they wanted to
verify the check to see if it was good, but Mr. Alderete also
said that he and Ms. “Cowboy” hoped to cash
it. See id. at 3 (lines 1, 13).
There is no evidence, however, that either Mr. Alderete or
Ms. “Cowboy” actually handed the check to a
teller in an attempt to cash it.
Alderete remained outside with Ms. “Cowboy” and
Officer Montano while Officer Danius went inside the bank to
speak to bank employees. Officer Danius first spoke to the
information desk representative, Susan Covnet, who told him
that Mr. Alderete and Ms. “Cowboy” came to her
and that Mr. Alderete asked Ms. Covnet to verify the check.
Ms. “Cowboy” handed the check and her ID to Ms.
Covnet (although Ms. Covnet may have obtained Ms.
“Cowboy's” ID a short time later). When Ms.
Covnet pulled up the account on her computer, the banking
notes from the bank's security officer stated that the
account was closed and directed the employee to call APD
right away. Ms. Covnet advised Mr. Alderete and Ms.
“Cowboy” that Ms. Covnet needed to speak to the
bank tellers. After Ms. Covnet left Mr. Alderete and Ms.
“Cowboy, ” Ms. Covnet went to the bank tellers
and directed the tellers to call APD, which they did. Ms.
Covnet returned to Mr. Alderete and Ms. “Cowboy”
and told them to wait near the tellers' windows for a
bank teller. At one point, a male bank teller told Mr.
Alderete and Ms. “Cowboy” that the teller was
busy with a “drive up window” client and would
get back to them. Ms. Covnet told Officer Danius that she was
surprised that Mr. Alderete and Ms. “Cowboy”
waited as long as they did at the bank before the officers
bank tellers had very little direct contact with either Mr.
Alderete or Ms. “Cowboy.” Neither the check nor
Ms. “Cowboy's” ID was returned to Ms.
“Cowboy.” It appears from the video recording
that Ms. Covnet gave Officer Danius both the original check
made out to Ms. “Cowboy” and Ms.
“Cowboy's” driver's license. At one point
within the first 15 minutes of his investigation, Officer
Danius remarked to the bank employees that he was not sure if
“the guy” (Mr. Alderete) was actively involved in
trying to cash the check or if was just “the
girl” (Ms. “Cowboy”).
Danius obtained a printout of the bank's security notes
on the closed account. Either the security notes or the
information relayed to Officer Danius by APD dispatch, or
both, indicated that the account holder had previously closed
his bank account after the owner's checkbook was stolen
sometime earlier in the year. Some months before August 27,
2015, an unidentified individual or individuals had presented
a fake ID in an attempt to cash fraudulent checks on the
closed account and they were arrested and criminally charged.
Mr. Alderete and Ms. “Cowboy” were asking to
verify a check made out on this same closed account.
speaking to bank employees, Officer Danius returned outside
and interviewed Ms. “Cowboy, ” while Officer
Montano remained with Mr. Alderete outside the bank. Officer
Danius asked Ms. “Cowboy” about the driver's
license she had presented to Ms. Covnet, and Ms.
“Cowboy” volunteered that she knew there was a
problem with her driver's license and that there was
possibly some missing information on the license. But, she
did not explain what the problem was.
“Cowboy” told Officer Danius that the people for
whom she and Mr. Alderete had performed work had made out a
check for $350 to her in the name of “Courtney
Cowboy.” Like Mr. Alderete, Ms. “Cowboy”
told Officer Danius that she and Mr. Alderete had come to the
bank to verify the check, and similar to Mr. Alderete, she
said that they ultimately wanted to cash it. Id. at
24 (line 14). “So the point is to cash [the
check].” Id. at 24-25. Ms.
“Cowboy” knew very few details about the person
who had paid them for the work. She told Officer Danius that
she did not pay much attention to the people for whom they
worked because she and Mr. Alderete were struggling for
money. Ms. “Cowboy” also did not seem to know her
own home address or whether she was living with Mr. Alderete,
whom she told Officer Danius was her supposed boyfriend. When
asked why the check was made out in Ms.
“Cowboy's” name, she gave no explanation
other than to say she, too, performed some of the work.
hearing Ms. “Cowboy's” answers to questions,
Officer Danius advised Ms. “Cowboy” that there
was an issue with the check and told her he was detaining her
and placing her in handcuffs while he continued his
investigation. In explaining why he was handcuffing Ms.
“Cowboy, ” Officer Danius stated he did not want
Ms. “Cowboy” to “go anywhere” while
he continued the investigation. Officer Danius then told Mr.
Alderete that he, too, was being detained and placed in
handcuffs. Officer Danius told Mr. Alderete “You're
not under arrest yet. You're being detained.” At
that point, there were remarks by Officer Montano and by Mr.
Alderete to Officer Danius that Mr. Alderete was currently on
probation. Mr. Alderete told Officer Danius that his
probation was not related to charges of fraud.
Montano's Video shows Officer Danius inside the police
cruiser examining Ms. “Cowboy's” driver's
license and finding it suspicious looking. Mr. Alderete and
Ms. “Cowboy” continued to talk together even
though they had been instructed not to converse. At one
point, Mr. Alderete called Ms. “Cowboy” by the
name of Kayla in front of Officer Montano. Ms.
“Cowboy” was upset with Mr. Alderete for calling
her Kayla. Officer Montano reported to Officer Danius that
Ms. “Cowboy's” name was Kayla not Courtney.
Ms. “Cowboy” finally, albeit reluctantly,
disclosed that her true full name was Kayla Salazar-Madrid,
explaining that she had a warrant out for her arrest. Officer
Montano again told Ms. Salazar-Madrid that she was being
detained. Officer Montano began to inspect the
contents of Ms. Salazar-Madrid's purse and eventually
found multiple fake drivers' licenses with various names,
a high school diploma in another name, several wallets,
several social security cards, photocopies of a $50 bill and
of a $100 bill, some pills, and cash.
Alderete gave Officer Montano permission to open the
passenger side door of Mr. Alderete's car and pull down
the visor to get the vehicle registration and bill of sale.
Officer Danius's Video #2 shows Mr. Alderete talking to
Officer Danius and insisting that Mr. Alderete has done
nothing wrong. Officer Danius informed Mr. Alderete of his
rights and again explained that he was still just detaining
Mr. Alderete. Officer Danius asked Mr. Alderete if he
realized that there was a warrant for Ms.
Salazar-Madrid's arrest and if Mr. Alderete knew she was
using a false name. Mr. Alderete admitted to knowing this but
said he did not know she had a false ID.
Danius continued to inform Mr. Alderete that he was being
detained. Before placing Mr. Alderete in the
police cruiser, Officer Danius asked him if there was
anything in his pockets that might poke Officer Danius.
Officer Danius's Video #2 shows Officer Danius patting
down Mr. Alderete's pockets; Mr. Alderete can be heard
saying he had a crack pipe in his pocket. Mr. Alderete told
Officer Danius that his family lived nearby and asked if
Officer Danius would contact his family so that they could
pick up Mr. Alderete's vehicle. Officer Danius told Mr.
Alderete that he could not promise anything and that they
would deal with that later. Mr. Alderete challenges the
lawfulness of the search and seizure of his person as well as
the later search of his vehicle.
already noted, the video recordings do not show the officers
informing either Mr. Alderete or Ms. Salazar-Madrid that they
were under arrest. Officer Danius stated that he found a fake
New Mexico driver's license in Mr. Alderete's wallet
with Mr. Alderete's photo on it and the name of
“Michael Strickland.” Danius Aff. ¶ 11;
Plaintiff's Ex. 4 (Danius Video #4). Officer Danius also
noted: “Given that Mr. Alderete was under arrest, we
prepared to tow the vehicle.” Id. ¶ 13.
During the tow inventory of Mr. Alderete's car, Officer
Montano found a loaded firearm with a magazine and thirteen
40 cal. bullets between the driver's side door and the
driver's seat. Montano Aff. ¶ 6. Officer Montano
reported that he could see the “large black
handgun” by looking in through the driver side window.
Id. In addition, Officer Montano found a black tar
substance (later identified as heroin) and numerous syringes
in Mr. Alderete's car.
Mr. Alderete was booked, the Prisoner Transport Center
searched Mr. Alderete and discovered a white powder on him
that later was confirmed to be methamphetamine. Danius Aff.
¶ 15. Detective Baker, who was called to the scene for
assistance, filed a Criminal Complaint against Mr. Alderete,
charging him with theft of identity, receipt of a stolen
firearm, and felon in possession of a firearm. On ...