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Parker-Ambrose v. Ortega

United States District Court, D. New Mexico

June 26, 2018

GEORGE A. ORTEGA, III, in his Individual capacity, Defendant.


         THIS MATTER comes before the Court upon these cross-motions for summary judgment:

(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 (Doc. 91).

         Having 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.


         Plaintiff 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.

         Limited discovery was allowed in this case related to the defense of qualified immunity, pursuant to Rule 56(d). See Doc. 38.

         I. Facts

         In 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.[1] 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.”).

         A. Initial Stop

         On or 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 “No.”

         Parties 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.[2]

         B. Detention

         Defendant Ortega then asked the Plaintiff to exit to the rear of her vehicle.

          (1) Standard Field Sobriety Tests Administered

         The 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 motion.

         Officer 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.[3]

         Defendant 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 watery.

         Officer 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.

         (2) Alternate Tests Administered

         Defendant 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.[4]

         Officer 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 PBT.[5]

         In his 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.

         At the 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 eventually dismissed.

         II. Legal Standard

         Defendants 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).

         Once a 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).

         Both 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”).

         The 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).


         Defendant 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.

         In a 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 constitutional rights.

         I. Whether Defendant is Entitled to Qualified Immunity in Plaintiff's Detention

         The 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).

         A law 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”).

         Plaintiff 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 ...

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