Torres v. Murillo

          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.

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