United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S
CROSS-MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S
CROSS-MOTION FOR SUMMARY JUDGMENT
MATTER comes before the Court upon these cross-motions for
(1) Plaintiff's Motion for Summary Judgment, filed on
February 16, 2018 (Doc. 87); and
(2) Defendant's Motion for Summary Judgment Based on
Qualified Immunity, also filed on February 16, 2018
reviewed the parties' pleadings and the applicable law,
the Court DENIES Plaintiff's Motion for Summary Judgment
and GRANTS Defendant's Motion for Summary Judgment.
alleges that Defendant violated her Fourth Amendment rights
when he arrested her in December 2013 for the crime of
aggravated driving while intoxicated and speeding. Plaintiff
claims that Defendant Ortega, employed by the Bernalillo
Police Department in Bernalillo, New Mexico asked her to
perform standardized field sobriety tests that he knew were
unreliable for subjects who were her age, and gave her
improper instructions on how to perform the test. Plaintiff
also claims that she agreed to take the portable breath test
after Defendant threatened to criminally charge Plaintiff if
she refused, but because she was not able to blow air with
enough force to register a result on the machine, Defendant
Ortega placed her under arrest. After spending several hours
in jail, the criminal case filed against Plaintiff was
dismissed by the state because Defendant did not appear for
the trial, which (according to Defendant) was due to
mis-calendaring. Defendant Ortega contends that he had
probable cause to arrest Plaintiff, and denied threatening or
coercing her to take the portable breathalyzer test.
discovery was allowed in this case related to the defense of
qualified immunity, pursuant to Rule 56(d). See Doc.
order to streamline the narrative for these cross-motions for
summary judgment, the Court sets out the facts presented by
both parties. These facts are undisputed unless otherwise
noted. The Court also omits references to supporting exhibits
except where necessary, as well as “facts” which
are more accurately described as subjective beliefs or legal
conclusions, see e.g., Deft's Facts 20 and 26
(stating that Defendant reasonably believed that Plaintiff
displayed signs of impairment and that Defendant reasonably
believed he had probable cause to arrest Plaintiff). Both
parties submitted video recordings of the stop and arrest,
see Docs. 35 and 90, which the Court has reviewed
carefully. The video exhibits support many of the facts
submitted by the parties, and are worth (as the saying goes)
a thousand words in the resolution of factual
disputes. See Scott v. Harris, 550 U.S.
372, 380 (2007) (“When opposing parties tell two
different stories, one of which is blatantly contradicted by
the record, so that no reasonable jury could believe it, a
court should not adopt that version of the facts for purposes
of ruling on a motion for summary judgment.”).
about December 29, 2013, while monitoring traffic atop the
bridge on U.S. 550, Sgt. Joseph Schake, utilizing a Custom
Signals laser, registered Plaintiff traveling at the speed of
81miles per hour in a construction zone with a posted speed
limit of 55 miles per hour. Based upon his observations, Sgt.
Schake radioed Officer Ortega (“Defendant” or
“Defendant Ortega”), provided him information
pertaining to Plaintiff's speeding, and provided a
description of the vehicle Plaintiff was driving, which
Plaintiff had rented to travel from Denver, Colorado to San
Diego, California. On the way, she had stopped in Pueblo,
Colorado, and then in Santa Fe and was on her way to
Albuquerque when she was stopped by Officer Ortega. Defendant
informed Plaintiff that he stopped her for speeding.
Plaintiff does not contest that she was speeding at the time.
Officer Ortega claims that when Plaintiff spoke, he detected
an odor of alcohol emitting from Plaintiff's breath, but
Plaintiff disputes that she smelled of any alcohol. Plaintiff
explained to Officer Ortega that she was headed to
Albuquerque and when asked whether she had had anything
alcoholic to drink along the way, Plaintiff said
dispute whether Officer Ortega actually asked Plaintiff for
her driver's license or whether Plaintiff just handed it
to him on her own, knowing he would want it. See
Doc. 95 at 11. The video shows Officer Ortega asking for the
rental agreement, which she found relatively quickly and gave
it to him.
Ortega then asked the Plaintiff to exit to the rear of her
Standard Field Sobriety Tests Administered
criteria for conducting DWI investigations are drawn from the
National Highway Traffic Safety Administration
(“NHTSA”) DWI Detection and Standardized Field
Sobriety Testing Manual. Plaintiff claims that the Standard
Field Sobriety Tests (“SFST”) set forth in the
NHTSA Manual are for individuals under the age of 65, not
overweight and in reasonable health. However, Defendant
claims that the administration of the SFST to people over 65
is not a material fact for purposes of Plaintiff's motion
because Plaintiff was 64 years old at the time of her arrest
by Officer Ortega. Defendant further points out that
Plaintiff claimed she could not perform two of the tests
because she had a disability, yet told Defendant that she was
not disabled. The Court agrees with Defendant that
Plaintiff's age with respect to the administration of
field sobriety tests is not material for purposes of this
Ortega proceeded to perform the Horizontal Gaze Nystagmus
(“HGN”) test, one of the standard field sobriety
tests, on Plaintiff, and claims that based on his education,
training and experience, he observed clues that indicated
intoxication or impairment. Plaintiff disputes this
statement, claiming that Defendant's administration of
the test was faulty and did not provide reliable results
which could provide a basis for probable cause to arrest
Plaintiff. Plaintiff does not dispute that Defendant received
training regarding the proper means of administering the HGN
test according to the National Highway Traffic Safety
Administration Manual (“NHTSA Manual”),
see Doc. 87-10, but she points to numerous ways
Officer Ortega conducted the tests contrary to that training
which were departures from the normal procedures set forth in
the NHTSA Manual for the proper administration of the HGN
with other evidence and testimony. See Pltff's
Rsp. To Deft's Fact 7.
Ortega claims that when he was performing the HGN test, about
12-15 inches from Plaintiff, he could detect a strong odor of
alcohol and he observed that her eyes were blood shot and
Ortega then asked Plaintiff to perform a standard field
sobriety test of standing on one leg. Plaintiff informed
Defendant that she had a right knee injury. Officer Ortega
then told Plaintiff she could stand on her left leg instead
and she responded that she was physically unable to perform
the one-legged stand. Defendant asked if she had trouble
walking, to which Plaintiff replied she did not. Officer
Ortega then asked Plaintiff to perform another field sobriety
test by walking heel-to-toe, demonstrating the test for
Plaintiff. However, even though Plaintiff had just told
Defendant that she had no trouble walking, she stated that
she could not perform the heel-to-toe test, claiming that she
had “mobility” issues. Plaintiff admits that she
is not disabled and has not been told by a healthcare
provider that she is disabled.
Alternate Tests Administered
Ortega decided not to administer either the one-legged stand
or walking test and instead gave Plaintiff an alternate test
of touching her fingers to her thumb and counting to four
backwards and forwards. Plaintiff initially performed the
test contrary to Officer Ortega's demonstration, but
after Officer Ortega demonstrated the test a second time,
Plaintiff successfully completed the test. Plaintiff claims
that Defendant failed to offer clear instructions the first
time he demonstrated the test but successfully completed the
test once the instructions were clear to her.
Ortega gave Plaintiff another alternate test of reciting a
portion of the alphabet, from “C” to “G,
” which Plaintiff was able to do without a problem.
After completing the second alternate field sobriety test,
Officer Ortega asked Plaintiff how much she had to drink, and
Plaintiff responded she had a glass of wine in Pueblo. When
Officer Ortega asked her if that was all she had consumed,
she nodded her head indicating yes, that was all she had
drunk. Officer Ortega told Plaintiff that he was detaining
her because she was under the influence of alcohol, and that
he believed she was impaired while operating a motor vehicle.
Officer Ortega believed it was appropriate to ask Plaintiff
to breathe into a portable breathalyzer, (“PBT”)
and radioed to have such a unit brought to the scene. A PBT
unit was obtained. Sergeant Schake arrived on scene, and both
Officer Ortega and Sergeant Schake had to explain the reason
for the PBT to Plaintiff several times before she eventually
agreed to take the test. Plaintiff tried three times to blow
into the machine, but the attempts were unsuccessful.
Plaintiff adds that she was concerned about her legal rights,
since Defendant falsely informed her that she would be
charged with aggravated DWI if she refused to submit to the
deposition, Defendant Ortega stated that in his experience,
individuals who try to blow air into the portable
breathalyzer but who are unsuccessful in their attempts, are
deliberately trying to fail the test. Plaintiff disputes this
because other than Defendant offers no actual evidence during
the investigation that Plaintiff was attempting deliberately
to fail the test.
police station, following Plaintiff's arrest, Plaintiff
refused to blow into the intoxilyzer. Sgt. Shake stated that
when he conducted a subsequent inventory of Plaintiff's
car, he found an open container with a residue of alcohol-a
glass that appeared to have wine in it with the odor of
alcohol. Plaintiff does not deny that a blue collector's
glass was removed from her vehicle long after her arrest and
during the inventory process, but denies that there was any
container with a residue of alcohol in her vehicle at the
time of the arrest. The charges against Plaintiff were
have asserted the defense of qualified immunity, which
shields government officials from liability for civil damages
“insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.” Pearson v.
Callahan, 555 U.S. 223, 231 (2009); Romero v.
Story, 672 F.3d 880 (10th Cir. 2012).
defendant asserts a defense of qualified immunity, the burden
shifts to the plaintiff to show that the law and facts at
issue establish that qualified immunity does not apply.
Pallottino v. City of Rio Rancho, 31 F.3d 1023, 1026
(10th Cir. 1994). The plaintiff must come forward with
sufficient evidence to show that the defendant violated a
constitutional or statutory right, and that the right was
clearly established at the time of the conduct such that it
would be sufficiently clear to a reasonable official that his
conduct violates that right. Thomas v. Kaven, 765
F.3d 1183, 1194 (10th Cir. 2014). The essential inquiry is
whether an objectively reasonable official would have known
that his conduct was unlawful. Lawrence v. Reed, 406
F.3d 1224, 1230 (10th Cir. 2005). The Court may consider
these two inquiries in any order. See Pearson v.
Callahan, 555 U.S. 223, 236 (2009).
parties have moved for summary judgment and the Court
addresses both cross-motions here. A motion for summary
judgment is appropriate when there is no genuine issue of
material fact, and the moving party is entitled to judgment
as a matter of law. Fed.R.Civ.P. 56(a); see also Celotex
Corp. v. Catrett, 477 U.S. 317, 330 (1986). “[T]he
mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported
motion for summary judgment; the requirement is that there be
no genuine issue of material fact.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). To
avoid summary judgment, a party must produce specific facts
showing that “there remains a genuine issue for trial
and evidence significantly probative as to any [material]
fact claimed to be disputed.” Branson v. Price
River Coal Co., 853 F.2d 768, 771-72 (10th Cir. 1988)
(quotation marks and citations omitted); see York v.
AT&T, 95 F.3d 948, 955 (10th Cir. 1996)
(“[m]ere assertions and conjecture are not enough to
survive summary judgment”).
fact that both parties have moved for summary judgment does
not permit the entry of a summary judgment if disputes remain
as to material facts. See Buell Cabinet Co. v.
Sudduth, 608 F.2d 431, 433 (10th Cir.1979).
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. See Harrison W. Corp. v. Gulf Oil Co., 662
F.2d 690, 692 (10th Cir.1981) (citations omitted).
contends that he is entitled to qualified immunity because
based on the undisputed facts of the case, he did not violate
Plaintiff's Fourth Amendment rights. Plaintiff admits to
speeding and does not contest the legality of the traffic
stop, but she contends that Officer Ortega violated her
constitutional rights when he expanded the stop to conduct a
DWI investigation. She claims that Defendant Ortega subjected
her to field sobriety tests even though an objectively
reasonable officer would know she was not under the influence
of alcohol and he also arrested her following her performance
of those tests without probable cause. The Court's
analysis therefore will begin with the question of whether
Defendant had reasonable suspicion to justify the expansion
of the traffic stop into a DWI investigation.
qualified immunity analysis, the Court may consider the two
prongs in any order, see Pearson v. Callahan, 555
U.S. at 236, but the analysis here lends itself here to first
conduct an examination of the facts in the context of the
clearly established law before considering whether the
evidence shows that Defendant violated Plaintiff's
Whether Defendant is Entitled to Qualified Immunity in
Fourth Amendment protects people against unreasonable
seizures of “their persons, houses, papers, and
effects.” Soldal v. Cook County, 113 S.Ct.
538, 544 (1992). The law requires that traffic stops must be
based upon reasonable suspicion, and must also be limited in
both scope and duration. Florida v. Royer, 460 U.S.
491, 500 (1983). Traffic stops “must be temporary and
last no longer than is necessary to effectuate the purposes
of the stop, ” United States v. Sandoval, 29
F.3d 537, 539 (10th Cir.1994)(quoting Florida v.
Royer, 460 U.S. 491, 500 (1983)), and must be
“reasonably related in scope to the circumstances which
justified the initial stop.” United States v.
Williams, 403 F.3d 1203, 1206 (10th Cir. 2005). Courts
use a “totality of the circumstances” of each
case to see whether a detaining officer has a
“particularized and objective basis” for
suspecting legal wrongdoing. U.S. v. Arvizu, 534
U.S. 266, 273 (2002). At each step of a detention, an officer
must have “specific articulable facts” in order
to extend a detention in time or scope which “support a
rational inference of criminal activity.” See U.S.
v. Williams, 403 F.3d 1203, 1207 (10th Cir.2005).
enforcement officer is entitled to qualified immunity if the
“infringed right at issue was clearly established at
the time of the allegedly unlawful activity such that a
reasonable law enforcement officer would have known that his
or her challenged conduct was illegal.” Smith v.
McCord, 707 F.3d 1161, 1162 (10th Cir. 2013) (quoting
Martinez v. Carr, 479 F.3d 1292, 1294-95 (10th Cir.
2007). Defendant contends that the law relevant to reasonable
suspicion and probable cause applicable to these facts were
clearly established at the time, but that Officer
Ortega's conduct was objectively reasonable and comported
with this law. Officer Ortega defends his conduct as legal by
insisting that even if he was mistaken about the existence of
reasonable suspicion or probable cause, his conduct was
objectively reasonable under the clearly established law.
See Cortez v. McCauley, 478 F.3d 1108, 1120 (10th
Cir. 2007) (“[e]ven law enforcement officials who
reasonably but mistakenly conclude that probable cause is
present are entitled to immunity”).
contends that Officer Ortega expanded the scope of the stop
after he should have seen that she was not visibly impaired,
but the Court disagrees, and finds that when considering all
the circumstances of the case and after reviewing the
videotape of the stop and arrest, Defendant had reasonable
suspicion to expand the stop and conduct a DWI investigation:
• Plaintiff was driving 26 miles over speed limit in
construction zone and appeared to be unaware that she was in
a construction zone; however, the video shows both sides of
the lane where Plaintiff was stopped to be lined with orange
barrels and flashing lights. Defendant Ortega ...