United States District Court, D. New Mexico
MANUEL G. TORRES, Plaintiff,
v.
DET. CHRISTINE MURILLO, DET. MELINDA HOBBS, CORP. JAIMIE SERRANO a/k/a Officer Serrano, CHIEF OF POLICE ED REYNOLDS, CHIEF DEPUTY DISTRICT ATTORNEY G. GEORGE ZSOKA, SILVER CITY POLICE DEPARTMENT and TOWN OF SILVER CITY, Defendants.
AMENDED ORDER [1] GRANTING IN PART
DEFENDANTS ED REYNOLDS, CHRISTINE MURILLO AND MELINDA
HOBBS' MOTION TO DISMISS AND/OR SUMMARY JUDGMENT ON THE
BASIS OF QUALIFIED IMMUNITY
KEVIN
R. SWEAZEA UNITED STATES MAGISTRATE JUDGE.
THIS
MATTER comes before the Court on Defendants Chief of
Police Ed Reynolds and Detectives Christine Murillo and
Melinda Hobbs' motion for summary judgment on the basis
of qualified immunity.[2] Plaintiff Manuel Torres, himself a law
enforcement officer, sued these individuals for Fourth
Amendment violations arising from Defendant Officer Jaime
Serrano's entry into Torres's home on June 21, 2015
as well as Torres's subsequent prosecution for shooting
at a motor vehicle contrary to New Mexico law. See
N.M. Stat. Ann. § 30-3-8(B). The Chief and Detectives
assert that Torres cannot overcome their immunity from suit
because Torres consented to the entry of his home and
voluntarily handed over the gun. Additionally, the Chief and
Detectives contend that Torres's criminal prosecution was
supported by probable cause. Torres claims genuine issues of
material fact preclude summary judgment and he needs
discovery to properly oppose the Chief and Detectives'
motion. With the consent of the parties to conduct
dispositive proceedings, see 28 U.S.C. §636(c),
the Court has considered the parties' submissions and
applicable law as well as reviewed the record on summary
judgment. Having done so, the Court concludes the Chief and
Detectives are entitled to qualified immunity and grants
their motion in part.
BACKGROUND
On June
21, 2015, Torres, then a law enforcement officer with the
Village of Santa Clara, was off duty hosting a Father's
Day barbeque at his home on Swan Street in Silver City, New
Mexico. (UMF[3] 2; Doc. 33-1, Supp. Police Report). Torres
was outside and observed a black truck at a nearby
intersection as well as a crowd of people. (Id.).
Torres heard arguing, a fight, and ultimately
gunshots.[4] (Id; UMF 3, Doc. 33-1). After
securing his family inside the home and retrieving his
personal weapon, a Glock .40, Torres stood in his yard and
noticed the black truck begin to drive off. (Doc. 33-1). When
Torres saw the vehicle's passenger shoot, Torres fired
the Glock .40 several times. (Id.).[5]
Detectives
Murillo and Hobbs and Chief Reynolds were dispatched to Swan
Street in response to a “shots-fired call.” (UMF
1; Doc. 33-1). Once there, they asked Officer Serrano, also
of the Santa Clara Police Department, to secure Torres's
gun. (UMF 4).[6] Officer Serrano obliged. (Id.).
As Officer Serrano reached Torres's residence, Officer
Serrano called for “Manny” through a screen door.
(Doc. 33-2, Lapel Camera Video; 0:0:35- 45).[7] Torres responded,
“yo, ” and Officer Serrano backed up opening the
screen door without entering the home. (Id.,
0:0:47-48). Almost immediately, as Officer Serrano held the
screen door ajar, Torres appeared in the entryway. Officer
Serrano asked Torres “where's your weapon?”
(Id.). In response, Torres motioned with his hand
for Officer Serrano to follow Torres inside the house;
Officer Serrano entered and trailed Torres several feet to
the living room. (Id.).
Once
inside, Torres asked Officer Serrano, “do you need
it?”[8] (Id., 0:0:58-0:1:01). Officer
Serrano explained he did need the gun, and cautioned Torres
not to touch “it.” (Id.). Nonetheless,
Torres took a pistol from the couch and handed it to Officer
Serrano. (Id.) After doing so, Torres inquired
whether Officer Serrano would unload the gun, and Officer
Serrano explained that he would give the weapon to
“them” as is. (Id.). Torres also asked
Officer Serrano, “are you going to take it?”
(Id., 0:1:01-0:1:15). Officer Serrano confirmed he
was taking the weapon and asked if Torres had “unloaded
any other?” (Id.). Thereafter, Torres handed
Officer Serrano a magazine. (Id.).
After
about forty seconds inside the house, Officer Serrano began
to leave, and Torres asked Officer Serrano to “hold
up.” (Id., 0:0:50 - 0:1:50). The purpose for
the request is unclear, but Officer Serrano remained for a
moment before exiting the home. (Id.). Officer
Serrano then returned to his squad car and placed
Torres's gun and magazines on the hood. (Id.) A
minute or so later, Torres joined Officer Serrano at the
police unit. (Id., 0:3:45-0:5:00). Officer Serrano
told Torres that “one of the officers” asked him
to secure Torres gun. (Id.). The two briefly
discussed the incident: Officer Serrano indicated that Torres
had hit the dark-colored truck a number of times; Torres did
not provide an explanation for why he shot at the truck; and
Torres denied he had been drinking. (Id.). The
exchange ended in a fist bump and Officer Serrano informing
Torres that “they're probably going to go talk to
you” and that if Torres “needed anything”
to let Officer Serrano “know.” (Id.).
At some
point that evening or the following morning, Detective
Murillo sought, obtained, and executed a search warrant for
Torres's “handgun[, ] handgun case[, ] handgun
ammunition and/or cases[, ][and] DNA evidence, such items
containing blood, to include DNA swabbing, articles of
clothing/materials.” (UMF 7, Doc. 33-3).[9] According to
Detective Murillo's supporting affidavit, Torres told
Detective Hobbs that he “came out of his residence when
he heard gunshots” and “did shoot several times
at the blue truck as it was passing in front of his
residence.” (Id.). Police officers ultimately
located seven bullet holes in the driver's side of the
vehicle at which Torres had shot. (UMF 6, Doc. 33-1).
Detective
Hobbs subsequently filed a single-count criminal complaint in
the Grant County, New Mexico magistrate court charging Torres
with a fourth-degree felony for “intentionally and
unlawfully shoot[ing] a motor vehicle with reckless disregard
for another person” in violation of N.M. Stat. Ann.
§ 30-3-8. (Doc. 33-3, Crim. Compl.). Chief Deputy
District Attorney George Zsoka, “approved” the
document but ultimately refiled the matter in state district
court after the parties agreed to a nolle prosequi.
The criminal information initiated in district court was
later dismissed after a preliminary hearing.
Torres
commenced this lawsuit in federal court on July 25, 2017.
(Doc. 1, Compl.). As is relevant to this motion, Count I of
the complaint alleges that the Chief and Detectives, as part
of the collective term “Defendants, ” violated
Torres's Fourth and Fourteen Amendment rights when they
(1) “entered his property and home without warrant and
without authority”; (2) “without a warrant and
without authority, demanded and removed property from
Plaintiff's home”; (3) left the property on the
hood of a police car unattended; (4) made reckless
misrepresentations and deliberate falsehoods to secure a
search warrant; (5) fabricated an affidavit in support of
criminal charges that excluded known exculpatory information
and was premised upon reckless or deliberate falsehoods; (6)
spoiled evidence and otherwise failed to perform a competent
investigation and collect evidence; and (7) failed to
corroborate or investigate information included the affidavit
supporting the criminal complaint. Count II repeats
Torres' allegations that “Defendants recklessly
misrepresented the truth and/or forwarded deliberate
falsehoods in initiating a criminal complaint against
Plaintiff without probable cause” and seeks damages for
“malicious prosecution under the Fourth &
Fourteenth Amendments.” (Doc. 1). Chief Reynolds and
Detectives Murillo and Hobbs assert entitlement to qualified
immunity. (See Doc. 33).
STANDARD
Qualified
immunity entitles a law enforcement officer to avoid trial
and the other burdens of litigation arising from the
performance of his or her discretionary functions. See
Quinn v. Young, 780 F.3d 998 (10th Cir. 2015). To give
effect to the doctrine, the Court views the parties'
respective burdens on summary judgment differently. See
Clark v. Edmunds, 513 F.3d 1219, 1222 (10th Cir. 2008);
Price-Cornelison v. Brooks, 524 F.3d 1103, 1108
(10th Cir. 2008). To defeat qualified immunity on summary
judgment, the plaintiff must satisfy “a strict two-part
test” by establishing with record evidence (1)
“the defendant's actions violated a constitutional
. . . right” and (2) that right was “clearly
established at the time of the conduct at issue.”
Clark, 513 F.3d at 1222 (internal quotation marks
and citation omitted). The Court has discretion to analyze
the two prongs in whatever order it chooses “in light
of the circumstances in the particular case at hand.”
Pearson v. Callahan, 555 U.S. 223, 236 (2009). If a
plaintiff satisfies the two-part test, then—and only
then—does the law enforcement officer bear his or her
traditional burden under Federal Rule of Civil Procedure 56
to show the absence of a triable issue of fact. See
Clark, 513 F.3d at 1222.
ANALYSIS
From
what the Court can discern, Count I against the Chief and
Detective comprises two distinct theories: their alleged (1)
illegal entry into Torres's home and seizure of
Torres's gun; and (2) malicious criminal prosecution of
Torres in the state court.[10] Count II likewise charges the
Chief and Detectives with malicious prosecution. The Chief
and Detectives contend Torres has not and cannot meet his
burden to show a deprivation of a constitutional right that
was clearly established as of June 21, 2015. Torres disagrees
and additionally asserts discovery is needed for him to
properly respond on summary judgment.
Warrantless
Entry and Seizure
The
Fourth Amendment protects “the right of the people to
be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.” U.S.
Const., amend. IV. It also commands that “no warrants
shall issue, but upon probable cause, supported by oath or
affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.”
Id. (internal capitalization omitted). “[T]he
Fourth Amendment protects people, not places.” Katz
v. United States, 389 U.S. 347, 351 (1967). The inquiry,
therefore, turns not on whether a particular place is worthy
of constitutional protection, but whether the individual has
an expectation of privacy in the place searched and whether
that expectation was objectively reasonable. See Id.
There is no doubt, however, that a citizen has a reasonable
expectation of privacy, and a particularly strong one, in his
own home. See Kyllo v. United States, 533 U.S. 27,
31 (2001) (“At the very core of the Fourth Amendment
stands the right of a man to retreat into his own home and
there be free from unreasonable governmental
intrusion.”) (Quotation omitted)).
The
Fourth Amendment's protection is not absolute. “One
of the specifically established exceptions to the
requirements of both a warrant and probable cause is a search
that is conducted pursuant to consent.” United
States v. Pena-Sarabia, 297 F.3d 983, 985 (10th Cir.
2002). Consent must be given knowingly and voluntarily, but
need not be verbally given. See Patel v. Hall, 849
F.3d 970, 981 (10th Cir. 2017). As above, the determination
focuses on reasonableness, and the Court asks whether, under
the totality of the circumstances, a reasonable officer would
have understood from the exchange between the officer and the
suspect that the suspect consented to the warrantless search
and seizure. See United States v. Flores, 48 F.3d
467, 468-69 (10th Cir. 1995). Thus, “[t]he focus is not
whether one subjectively consented, but rather, whether a
reasonable officer would believe consent was given as
‘inferred from words, gestures, or other
conduct.'” United States v. Lopez-Carillo,
536 Fed.Appx. 762, 768 (10th Cir. 2013) (quoting United
States v. Pena-Ponce, 588 F.3d 579, 584 (8th Cir.
2009)).
In this
case, the parties agree that the Chief and Detectives
themselves did not enter Torres's home or seize anything.
Instead, Torres asserts these Defendants violated the Fourth
Amendment because they asked Officer Serrano to secure the
gun used in the incident. The Chief and Detectives do not
challenge the legal foundation of Torres's theory,
concede Torres has a legitimate expectation of privacy, and
admit Office Serrano did not have a warrant to enter the
premises or seize personal property at the time Officer
Serrano entered Torres's home. As the parties frame it,
the two questions the Court must answer are whether Torres
consented to Officer Serrano's warrantless entry into the
home and warrantless seizure of the gun and magazines.
Constitutional-violation
prong of the qualified-immunity analysis
Officer
Serrano's lapel camera recorded the exchange between
Officer Serrano and Torres.[11] The footage demonstrates that
Officer Serrano approached Torres's residence and called
for “Manny” through a screen door. After Torres
responded, “yo, ” Officer Serrano opened the
screen door without entering the home. At that point, Torres
appeared, and Officer Serrano asked “where's your
weapon?” In response, Torres motioned with his hand for
Officer Serrano to follow Torres inside the house, and
Officer Serrano, who was a few feet from the threshold
holding the screen door open, entered. Torres asked Officer
Serrano, “do you need it?” Officer Serrano
answered that he did need the gun, and indicated that Torres
should not touch “it.” Near the entryway, in what
appeared to be the living room, Torres took a pistol from the
couch and handed it to Officer Serrano. Torres then inquired
whether Officer Serrano would unload the gun, and Officer
Serrano explained that he would give the weapon to
“them” as is. Torres also asked, “are you
going to take it?” Officer Serrano confirmed he was
taking the weapon and probed whether Torres had
“unloaded any other?” Torres handed Officer
Serrano a magazine.
After
about forty seconds inside, Officer Serrano began to leave
when Torres asked Officer Serrano to “hold up.”
Officer Serrano remained for a moment before exiting the home
and returning to his squad car, where he placed Torres's
gun and magazines on the hood. A minute or so later, Torres
joined Officer Serrano at the police unit. There Officer
Serrano told Torres “one of the officers” asked
Officer Serrano to secure the gun. After some discussion
about the incident—why Torres shot for which he gave no
answer and whether Torres had been drinking, which he had
not—Torres parted company with Officer Serrano after a
fist bump.
Entry
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