Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Alderete v. City of Albuquerque

United States District Court, D. New Mexico

December 8, 2017

CITY OF ALBUQUERQUE, OFFICER IGNAS DANIUS, in his individual capacity and as employee of the City of Albuquerque; OFFICER DAVID MONTANO, in his individual capacity and as employee of the City of Albuquerque; and DETECTIVE CHRISTIAN D. BAKER, in his individual capacity and as employee of the city of Albuquerque, Defendants.


         Plaintiff 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.

         Defendants 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 him.[1] 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.

         Mr. 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 ….”[2] 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.

         Defendants 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.”[3]

         Mr. 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.[4] Mr. Alderete's Motion is fully briefed.[5]

         On 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).

         Having considered the pertinent law and argument by counsel, along with the briefing, supplemental briefing, and all of the exhibits, [6] 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.

         Summary Judgment and Qualified Immunity

         A. Summary Judgment

         Rule 56 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).

         To 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 omitted).

         When 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).

         B. Qualified Immunity

         Because 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. 2015)

         If a “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).

         Undisputed Material Facts (UMFs)[7]

         On 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.[8]

         Upon 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.[9] 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.[10] 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.

         Mr. 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 arrived.

         The 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”).

         Officer 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.

         After 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.

         Ms. “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.

         After 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.

         Officer 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.[11] 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.[12] 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.

         Mr. 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.

         Officer Danius continued to inform Mr. Alderete that he was being detained.[13] 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.

         As 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.

         After 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.