Santistevan v. USA et al

Filing 150

ORDER granting 126 the City Defendants' Motion for Summary Judgment, and granting in part and denying in part 127 the County Defendants' Motion for Summary Judgment Pursuant to Fed. R. Civ. P. 56(c), by Magistrate Judge Michael E. Hegarty on 2/5/2013. (mehcd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-01649-MEH-BNB
ROSE A. SANTISTEVAN,
Plaintiffs,
v.
CITY OF COLORADO SPRINGS, a municipality;
RICHARD MYERS, in his official capacity as Colorado Springs Chief of Police;
JIMMY RODGERS, in his official and individual capacity;
PHIL GURNETT, in his individual capacity;
JACKSON ANDREWS, in his official and individual capacity;
KEN MOORE, in his individual capacity;
BRIAN MATTISON, in his individual capacity;
OWEN MCCORMACK, in his individual capacity;
JEFFERY KRAMMER, in his individual capacity;
MARCUS MILLER, in his individual capacity;
SCOTT ROBBLEE, in his individual capacity;
JOHN DAVID, in his individual capacity;
JASON HESS, in his individual capacity;
KIMBLE GINGRICH, in his individual capacity; and
OTHER UNKNOWN AGENTS OF THE COLORADO SPRINGS POLICE DEPARTMENT, in
their official and personal capacities,
Defendants.

ORDER ON MOTIONS FOR SUMMARY JUDGMENT

Michael E. Hegarty, United States Magistrate Judge.
Pending before the Court are two motions for summary judgment: (1) the City Defendants’
Motion for Summary Judgment [filed August 31, 2012; docket #126] filed by Defendants Richard
Meyers, Jimmy Rodgers, Jackson Andrews, and the City of Colorado Springs (collectively, the “City
Defendants”); and (2) the County Defendants’ Motion for Summary Judgment Pursuant to Fed. R.
Civ. P. 56(c) [filed August 31, 2012; docket #127]. Both motions are fully briefed. Additionally,

at Plaintiff’s request, the Court heard oral argument regarding the aforementioned motions on
December 18, 2012. (Docket #147.) For the reasons set forth below, the City Defendants’ Motion
for Summary Judgment is GRANTED and the County Defendants’ Motion for Summary Judgment
Pursuant to Fed. R. Civ. P. 56(c) is GRANTED IN PART and DENIED IN PART.
BACKGROUND
I.

Findings of Fact
The Court finds the following facts, some of which are stipulated by the parties and the

remainder viewed in the light most favorable to the Plaintiff, who is the non-moving party in this
matter. The Court notes that several of the of the “Disputed Facts” Plaintiff asserts are not
supported by the record. Thus, the Court excludes them from its findings.
A.
1.

The Investigation

Sergeant Jimmy Rodgers (“Sergeant Rodgers”) supervised a group of law enforcement
detectives, including Detective Phil Gurnett (“Detective Gurnett”), who investigated
narcotics related crimes in the Colorado Springs, Colorado area. (Stipulated)1

2.

In 2009, Detective Gurnett, an employee of the El Paso County Sheriff’s Office, was
assigned to the Metro Vice Narcotics Team (“Metro VNI”). (Id.)

3.

Metro VNI is a co-located multi-agency task force staffed by the Colorado Springs Police
Department (the “CSPD”), the El Paso County Sheriff’s Office (“EPSO”) and other
smaller agencies. The purpose of Metro VNI is to combat narcotics trafficking in the 4th
Judicial District. (Id.)

1

The term, “stipulated,” refers to those facts asserted by Defendants and “admitted” by
Plaintiff or asserted by Plaintiff and “admitted” by Defendants.
2

4.

After Detective Gurnett was assigned to Metro VNI, he initiated the “Geez Luis”
investigation. (Id.)

5.

Geez Luis was a unique investigation involving multiple agencies, including Metro VNI
and the Federal Bureau of Investigation (“FBI”), which “umbrellaed” into a large scale
investigation of a drug trafficking organization (“DTO”). (Id.)

6.

Metro VNI suspected that the DTO involved several members the La Familia-Surrenos
gang (the “La Familia gang”). (Id.)

7.

Sergeant Rodgers suspected that Kirt Santistevan was a member of the La Familia gang.
(Docket #126-1, 10.)

8.

On March 2009, Detective Gurnett received information from a confidential informant
(“CI”) that a person by the name of “Wicked” was supplying narcotics to Kirt
Santistevan. (Stipulated.)

9.

“Wicked” was known to Detective Gurnett and other individuals at the CSPD as a
member of the La Familia gang involved in narcotics distribution. (Docket #127, 9.)

10.

Further investigation revealed that “Wicked” was actually Jorge Perez. (Stipulated.)

11.

Jorge Perez aka “Wicked” (hereinafter “Jorge Perez”) had connections to Luis Vega aka
“Tricky” (hereinafter “Luis Vega”). (Id.)

12.

Luis Vega was also involved in drug trafficking with members of the La Familia gang.
(Id.)

13.

On March 18, 2009, at approximately 10:46 p.m., Detective Gurnett arranged for the CI
to meet Kirt Santistevan in a McDonald’s parking lot in Colorado Springs to purchase
narcotics from Kirt Santistevan. (Id.)

3

14.

During the transaction on March 18, 2009, Kirt Santistevan brokered a drug sale between
Luis Vega and the CI. (Id.)

15.

The CI purchased 8 grams of methamphetamine from Luis Vega for $275.00. (Id.)

16.

After the March 18, 2009 transaction, police surveillance followed Kirt Santistevan to
Jorge Perez’s home. (Id.)

17.

Jorge Perez lived at 736 E. Cucharras, approximately one-half block west of 203 S.
Prospect. (Id.)

18.

On April 3, 2009, Detective Gurnett arranged a second narcotics transaction with Kirt
Santistevan using the CI. At approximately 1920 hours, the CI purchased 3.0 grams of
methamphetamine directly from Kirt Santistevan for $275.00. (Id.)

19.

Kirt Santistevan and Luis Vega left the scene of the April 3, 2009 drug transaction in the
same vehicle. (Id.)

20.

At the request of detectives, and after obtaining probable cause, CSPD patrol officers
stopped the vehicle and positively identified Kirt Santistevan and Luis Vega. (Id.)

21.

At the time of the stop, officers discovered an outstanding traffic warrant for Kirt
Santistevan. They arrested him according to that warrant. (Id.)

22.

In approximately June 2009, the FBI Southern Colorado “Safe Streets” Task Force
became the lead agency partner in the investigation. (Id.)

23.

Over the course of the investigation, Metro VNI detectives successfully purchased 258.4
grams of methamphetamine linked to Luis Vega and expended approximately $11,600 in
“buy funds” to do so. (Id.)

24.

On July 22, 2009, a judge issued an order authorizing a wiretap on Luis Vega’s primary

4

phone number. (Id.)
25.

During the course of the interceptions, detectives learned that a primary source of Luis
Vega’s marijuana was Theresa Baltazar. (Id.)

26.

The wiretap on Luis Vega’s phone was “up” and being monitored in the course of the
investigation until September 2009. (Id.)

27.

On or about July 22-23, 2009, the wiretap recorded a phone call from Luis Vega’s phone
number to the number provided by Kirt Santistevan as his home number at 203 S.
Prospect.2 (Id.)

28.

During the phone call, an unknown female stated, “Yeah, we’re bugging.” (Id.)

29.

According to Detective Gurnett, the unknown female used other coded language
indicative of illegal narcotics use. (Docket #127-3 at 43-44.)

30.

By June 2009, the investigation had shifted away from Kirt Santistevan and focused on
Luis Vega and Jorge Perez. (Stipulated.)

31.

During July 2009, law enforcement set up a pole camera positioned to record Jorge
Perez’s home. The camera permitted officers to observe activity at Perez’s home 24
hours a day. Although 203 S. Prospect was also visible from the pole camera, it is
unclear whether it captured any entrance to the residence. (Docket #127-1 at 71-73.)

32.

On July 23, 2009, Gurnett applied for and received judicial authority for an electronic
tracking device (“ETD”) to be placed on Luis Vega’s car for the purpose of tracking his

2

The Court observes a discrepancy between Detective Gurnett’s affidavit [docket #127-5]
and the facts agreed to by the parties, as the affidavit indicates that the call originated from the
phone of Jorge Perez. Because significance of the call arises from the statements of the unknown
female participant, this discrepancy is not material.
5

movements. (Stipulated.)
33.

A review of the EDT stop report for activity reveals that between July 23, 2009 and
August 20, 2009, the EDT reflected ten (10) stop reports by Luis Vega’s vehicle at 203 S.
Prospect. (Id.)

34.

Detective Gurnett cannot recall ever observing Luis Vega enter the residence at 203 S.
Prospect. (Docket #127-3 at 75.)

35.

On July 27, 2009, intercepted phone calls revealed that Luis Vega was about to make
additional drug transactions. (Stipulated.)

36.

After suspected drug transactions, Luis Vega drove to 203 S. Prospect and parked for a
period of time. (Id.)

37.

The only documented contact Luis Vega (or any of the other alleged co-conspirators) had
with 203 S. Prospect in August 2009 occurred August 20, 2009. All that is known about
the stop is that it probably lasted more than two minutes. (Id.)
B.

38.

Relationship Between Plaintiff and Alleged Co-Conspirators

Kirt Santistevan is the son of Plaintiff and her husband. Plaintiff and her husband reside
at 203 S. Prospect. (Id.)

39.

Kirt Santistevan has a familial relationship with Luis Vega and Jorge Perez. (Id.)

40.

Diana Baltazar is the daughter of Plaintiff and her husband. She resides across the street
from Plaintiff at 749 Cucharras. (Id.)

41.

Diana Baltazar has two daughters: Susie and Theresa Baltazar. (Id.)

42.

Susie Baltazar lives with Jorge Perez at 736 E. Cucharras. Jorge Perez and Susie
Baltazar are married by common law. (Id.)

6

43.

Theresa Baltazar lives with Luis Vega at 322 N. Farragut. (Id.)

44.

Jorge Perez and Luis Vega have referred to each other as “cousins.” (Id.)
C.

45.

Preparation of the Warrants

Upon expiration of the last wiretap warrant in September 2009, Metro VNI detectives
determined the investigation had run its course and began to prepare search and arrest
warrants. (Id.)

46.

Metro VNI detectives identified sixteen (16) individuals for whom they believed
probable cause for an arrest existed, including Luis Vega, Jorge Perez, Kirt Santistevan,
Theresa Baltazar, and Demetrius Santistevan. (Id.)

47.

Detectives also identified nine (9) residences for which they believed probable cause to
search existed, including the homes of Luis Vega, Jorge Perez, Susie Baltazar, and Kirt
Santistevan. (Id.)

48.

When Kirt Santistevan was arrested in mid-August 2009, he listed his home address as
203 S. Prospect. (Id.)

49.

According to Plaintiff, Kirt Santistevan does not reside at 203 S. Prospect but does
receive mail there. (Id.)

50.

Detective Gurnett prepared the affidavit in support of the warrant for 203 S. Prospect.
(Id.)

51.

Detective Gurnett is aware that drug dealers will often provide a mailing address in lieu
of their true residence. (Docket #127-3 at 36.)

52.

Although Detective Gurnett did not take additional steps to verify that Kirt Santistevan
resided at 203 S. Prospect, the address was also targeted for a search based on contact

7

Luis Vega and Jorge Perez had with the residence. (Id. at 38-39.)
53.

The affidavit also omits that the pole camera never captured Kirt Santistevan, Luis Vega,
Jorge Perez, or any of the other alleged conspirators entering the residence at 203 S.
Prospect. (Stipulated.)

54.

The affidavit prepared by Detective Gurnett fails to specify any contact by any member
of the alleged conspiracy with 203 S. Prospect in September 2009. (Id.)

55.

Detective Gurnett was not aware that the only people residing at 203 S. Prospect were an
elderly couple. (Id.)

56.

There was no information that either Plaintiff or her husband were involved in any
criminal activities (Id.)

57.

There was no specific evidence that guns or weapons were being stored at 203 S.
Prospect. (Id.)

58.

Kirt Santistevan had been in custody in Teller County on an unrelated matter from the
middle of August 2009 through October 6, 2009. (Id.)

59.

Detective Gurnett’s affidavit states that Kirt Santistevan was in custody in Teller County
as of September 15, 2009. (Docket #126-5 at 4.)

60.

Although Detective Gurnett knew Kirt Santistevan was still in custody at the time he
prepared the affidavit, his affidavit does not provide Kirt Santistevan’s custodial status as
of that date. (Stipulated.)

61.

Despite the fact that Kirt Santistevan was incarcerated, detectives still believed that,
based on the totality of the investigation, evidence relevant to the narcotics investigation
could be located at 203 S. Prospect. (Id.)

8

62.

Sergeant Rodgers reviewed the search warrant of 203 S. Prospect and did not have any
concerns that the warrant was stale. (Id.)

63.

In addition to Sergeant Rodgers and Detective Gurnett, two superior officers reviewed
the warrants for probable cause before Sergeant Rodgers delivered them to Judge
Thomas Kane for review. (Id.)

64.

One of the members of the investigative team, Detective Terry Lantz, had a past working
relationship with Judge Kane. (Id.)

65.

Judge Kane recalls that he reviewed the warrants and supporting affidavits individually
and collectively over a period of several days and did not find the information provided
to be stale. (Id.)

66.

On September 28, 2009, Judge Kane signed the warrants and approved the multiple
arrests and searches. (Id.)
D.

67.

Execution of the Warrants

In planning the execution of the warrants, detectives determined that for the safety of all
officers involved, the warrants should be executed simultaneously on October 6, 2009.
(Id.)

68.

Due to the nature of the investigation and the number of search warrants involved, Metro
VNI requested EPSO SWAT to assist by executing the warrant for 203 S. Prospect. (Id.)

69.

After receiving the request to execute the warrant from Metro VNI, EPSO SWAT
Sergeant Jeffery Krammer (“Sergeant Krammer”) followed standard practices and
procedures regarding the use of the EPSO SWAT team. (Id.)

70.

He reviewed the search warrant and accompanying “risk assessment,” attended a

9

briefing, and reviewed a written PowerPoint presentation prepared by FBI “Safe Streets”
and Metro VNI detectives which outlined the DTO’s various players and addresses. (Id.)
71.

The risk assessment included the following information: a copy of the search warrant,
initial research– such as County Assessor pages to show who owns the properties–and
additional documentation related to potential threats. (Id.)

72.

The additional documentation included a summary of key questions associated with
inherent dangers of properties, known associates who pose a risk due to violent criminal
histories, and names and addresses of the gang members being investigated. (Id.)

73.

The risk assessment packet also contained information that 203 S. Prospect was a known
gang house that was unfriendly to police officers. This designation required a minimum
of three (3) officers to respond to calls for service. (Docket #126-15, 16.)

74.

203 S. Prospect received its designation as a gang house on March 22, 2007. (Id.)

75.

Sergeant Krammer considered multiple factors when preparing for the warrant execution,
including the fact that some of subjects involved in the FBI and Metro VNI briefing
session were suspected members of the La Familia gang. (Stipulated to the extent
described below.3)

76.

Knowing that gangs often use narcotics to support their operations, and they will go to
great lengths to protect their efforts, Sergeant Krammer had to prepare himself and his
team for the possibility that they could encounter very violent people when assisting with

3

The Court observes that the documents cited in support of County Defendants’ assertion do
not indicate which of the co-conspirators were involved with the La Familia gang. However, to the
extent Plaintiff concedes that two of the co-conspirators were suspected gang members, the Court
finds a modified version of the County Defendants’ assertion to be agreeable to all parties.
10

the execution of the warrants. (Stipulated.)
77.

Sergeant Krammer considered the possibility that other unknown individuals related to
Kirt Santistevan, including some with criminal histories, might be present during the
execution of the warrant. (Docket #127-2 at 58.)

78.

Sergeant Krammer knew the Santistevan family was very large and was well-associated
with the La Familia gang. (Stipulated.)

79.

Sergeant Krammer feared that with all the police activity during the investigation, the La
Familia gang may have gotten notice and were preparing to take action. (Id.)

80.

Based on the risk assessment and his own continued research, Krammer created the
EPSO SWAT “pre-operations” plan. (Id.)

81.

While EPSO SWAT was aware that Kirt Santistevan was in custody, the SWAT team
was unsure of who else would be in the home or what type of resistance it would face.
(Id.)

82.

Sergeant Krammer decided that the pre-operations plan would include detonating a flashbang device outside of the home to create a diversion from the point of entry. (Id.)

83.

A flash-bang device creates a bright flash and a loud noise. By design, the device ignites
quickly and gives off very little smoke so as not to hinder the efforts of the officers using
it. (Id.)

84.

The pre-operations plan4 contemplated that EPSO SWAT Deputies Hess, Miller, Montes,
Krammer, Robblee, Donels, and Gingrich would participate as the “entry team.” (Id.)

4

An accurate copy of the pre-operations plan prepared by Sergeant Krammer is filed at
docket #127-11. (Stipulated.)
11

85.

Sergeant Krammer briefed the EPSO SWAT team on their respective roles. (Id.)

86.

When creating the pre-operations plan, Sergeant Krammer knew and considered that
elderly residents lived at 203 S. Prospect. (Id.)

87.

In particular, he was aware that Plaintiff (age 69) and her husband (age 76) were the
primary occupants of the home. (Id.)

88.

Based on oxygen tanks left outside of the 203 S. Prospect entrance and a sign warning
that oxygen was used in the home, Sergeant Krammer’s pre-raid surveillance should have
revealed that Plaintiff was on oxygen. (Id.)

89.

Based on Sergeant Krammer’s experience, even elderly residents or “petite” women can
pose substantial threats to officers. (Id.)

90.

On the morning of October 6, 2009, EPSO SWAT executed a “No Knock” warrant at
1095 Western Drive, another address identified as part of the DTO. During the search,
EPSO SWAT located a loaded .45 Caliber Taurus handgun in plain view. (Id.)

91.

EPSO SWAT then arrived on the scene at 203 S. Prospect at approximately 10:28:43
hours on the same day. (Id.)

92.

Upon arriving on scene at 203 S. Prospect, EPSO SWAT discovered that another warrant
(736 E. Cucharras, the home of Jorge Perez) a half block away was being executed
prematurely, causing concern that EPSO SWAT’s own security had been compromised.
(Id.)

93.

EPSO SWAT deputies approached the door of 203 S. Prospect in a “stack” or tight line
for security. (Id.)

94.

At all times EPSO SWAT members were uniformed in clearly marked gear which stated

12

“Sheriff’s Office.” (Id.)
95.

Each deputy had a pre-identified role. (Id.)

96.

In initiating the knock-and-announce warrant, First Deputy Miller checked the screen
door and determined it was locked. (Id.)

97.

Deputy Miller used a hammer-type tool to create a hole in the screen by hitting the screen
door. (Id.)

98.

Immediately after, Deputy David assisted Deputy Miller in utilizing a “punch-and-pull”
tool which uses a hook mechanism to force open the door. (Id.)

99.

Because Plaintiff’s door was relatively sturdy, it took four attempts to pull it open. (Id.)

100.

As Deputies Miller and David were trying to pull the door, Deputy Robblee knocked
loudly on the side of the home and shouted “Sheriff’s Office, search warrant, open the
door now!” (Id.)

101.

Approximately fifteen (15) seconds into the breach, Deputy Owen McCormack detonated
a flash-bang device outside of Plaintiff’s home. (Id.)

102.

The timing of the flash-bang was critical insofar as its purpose was to distract the
occupants while Deputy Gingrich breached the door. (Id.)

103.

The flash-bang awoke Plaintiff from her sleep. (Id.)

104.

Because the breach was taking “too long,” Sergeant Krammer ordered a “breach and
hold,” commanding the team members to not enter the home until further order was
given. (Id.)

105.

Pages 1 and 3 of docket #127-10 indicate that the flash-bang device was thrown on the
side of the residence. (Id.)

13

106.

The door to the home was breached approximately 12 to 14 seconds after the knock-andannounce procedure began. (Id.)

107.

Sergeant Krammer observed no smoke upon entering 203 S. Prospect immediately after
the flash-bang had been detonated. (Id.)

108.

Immediately after the door was breached, EPSO SWAT Deputy Jason Hess (in the front
of the “stack”) observed Plaintiff, an elderly woman with an oxygen tube. (Id.)

109.

Plaintiff observed the officers holding submachine guns. (Id.)

110.

Deputy Hess initially began to order Plaintiff to come to him; however, because there
was glass on the floor and she was barefoot, Hess instead ordered her to remain where
she was. (Id.)

111.

Deputies Hess, Montes, Donels, Gingrich, and Krammer entered the home while Deputy
Miller remained outside controlling the door. (Id.)

112.

EPSO SWAT team members focused their efforts on securing the premises before
answering Plaintiff’s questions about why they were there. (Id.)

113.

While the EPSO SWAT team was still securing the premises, Sergeant Krammer
immediately directed his attention toward Plaintiff. (Id.)

114.

Sergeant Krammer observed that Plaintiff was having difficulty breathing. He
summoned medical assistance and laid a towel over the broken glass on the floor. (Id.)

115.

According to a call screen report, within two minutes and sixteen seconds after the initial
breach of the residence, medical professionals had entered the home and were providing

14

treatment to Plaintiff.5 (Id.)
116.

The fear and stress associated with the raid caused Plaintiff to suffer from symptoms
similar to a heart attack. She remained in the hospital for eight (8) days. (Id.)
E.

117.

Role of Individual Defendants

Detective Gurnett initiated the investigation and participated in procuring the warrant.
He did not participate in the entry of the home during the execution of the warrant. (Id.)

118.

Sergeant Krammer was the EPSO SWAT leader who, at the request of Metro VNI and
the FBI, agreed to use his team to assist in the execution of the multiple search warrants.
(Id.)

119.

Deputy Jason Hess was the first deputy to enter the residence at 203 S. Prospect and the
first deputy to observe and direct Plaintiff. (Id.)

120.

Commander Ken Moore was serving as the tactical commander for EPSO SWAT on
October 6, 2009.6 (Id.)

121.

Deputy Owen McCormack detonated the flash-bang device at 203 S. Prospect outside the
home but did not enter the residence during the search. (Id.)

122.

Deputy Marcus Miller was the second member of the breach team during the “stack”
formation and the seventh officer to enter the premises. After the other six officers
entered, Deputy Miller assisted in securing the premises. (Id.)

123.

Deputy Scott Robblee was the fifth member of the breach team in the “stack” formation

5

Page 2 of docket #127-10 is a fair and accurate photograph of Plaintiff being treated by Fire
Department medical personnel on scene. (Stipulated.)
6

Although the County Defendants assert Commander Moore served as the tactical
commander on October 6, 2006, the Court believes this a typographical error.
15

and the fourth officer to enter the premises. (Id.)
124.

Deputy John David was assigned to a “containment” role, meaning he would help with
the initial breach but then stay outside of the residence.

125.

Deputy Kimble Gingrich was the seventh member of the breach team in the “stack”
formation and the sixth officer to enter the premises. He also assisted in the breach of the
door. (Id.)

126.

Officer Jackson Andrews assisted with contacting Jorge Perez at 331 S. Hancock Avenue
on October 7, 2009. (Id.)

127.

After leaving 331 S. Hancock Avenue, Officer Andrews assisted with photographing 736
E. Cucharras Street. (Id.)

128.

Officer Andrews did not assist in the preparation of or seek judicial authorization for the
warrants at issue in this case.

129.

Officers Andrews did not determine the manner or method in which the warrants were
executed. (Id.)

130.

Officer Andrews did not participate in the execution of the warrants on October 6, 2009.
(Id.)

131.

Sergeant Rodgers did not participate in the execution of the warrants on October 6, 2009.
(Id.)

132.

Sergeant Rodgers did not determine the manner in which the warrants were to be
executed. (Id.)

133.

Sergeant Rodgers has extensive training an experience in making probable cause
determinations for arrest and search warrants. (Id.)

16

134.

Plaintiff does not have evidence showing that the City failed to supervise Sergeant
Rodgers or Officer Andrews. (Id.)

135.

Plaintiff does not have evidence showing that the City failed to train Sergeant Rodgers or
Officer Andrews. (Id.)
F.

136.

Results of the Search

During their search of 203. S. Prospect, officers found no evidence of drugs, guns, or
ledgers related to narcotics or narcotics distribution. (Id.)

137.

The search of 203 S. Prospect was never contested in criminal proceedings, because
neither Plaintiff nor her husband were charged criminally regarding the investigation.
(Id.)

138.

A related search of 709 S. Union was contested in criminal proceedings. The search
warrant for 709 S. Union relied primarily upon the connection of Demetrius Santistevan
to the residence and Demetrius Santistevan’s involvement with the drug conspiracy.
Judge Kane signed the warrant on September 28, 2009. Upon review of the warrant,
District Court Judge Deborah Grohs determined that the information in the warrant was
stale and unreliable, and that the warrant lacked probable cause. Although the parties did
not raise the good-faith exception to the warrant requirement, Judge Grohs further opined
that it would not apply under the circumstances. (Id.)

II.

Procedural History
Plaintiff initiated this action on June 23, 2011. (Docket #1.) Her claims have evolved

considerably since that time. Plaintiff’s initial complaint named several individual officers, two
municipalities, and the United States of America as Defendants. (Id.) Shortly thereafter,

17

Defendants City of Colorado Springs and El Paso County moved to dismiss the complaint under
Fed. R. Civ. P. 12(b)(6). (Dockets ##27, 28.) In response, Plaintiff filed her First Amended
Complaint on September 16, 2011, without objection from Defendants. (Docket #55.)
Plaintiff’s First Amended Complaint did not include the United States of America, and thus,
reduced Plaintiff’s claims only to those brought pursuant to Section 1983. (Id.) Following a
second motion to dismiss filed by the County Defendants, Plaintiff moved to amend her
pleadings once again. (Dockets ##74, 79.) Though heavily contested, the Court granted
Plaintiff’s motion and accepted her Second Amended Complaint as filed. (Dockets ##104, 106.)
Plaintiff’s Second Amended Complaint asserts three claims for relief: (1) a Fourth
Amendment claim for excessive force against all Defendants; (2) a Fourth and Fourteenth
Amendment claim for unlawful entry against Detective Gurnett and Sergeant Rodgers7; and (3) a
Section 1983 claim for failure to train and/or supervise against the City of Colorado Springs and
Chief Richard Myers. (Docket #106 at 7-10.) Pursuant to a stipulation by the parties, Plaintiff
dismissed Defendant Michael Shaller on February 23, 2012. (Docket #112.)
Both the City Defendants and County Defendants filed Motions for Summary Judgment
on August 31, 2012. The City Defendants argue that Sergeant Rodgers and Officer Andrews did
not violate Plaintiff’s rights and are, therefore, entitled to qualified immunity. In particular, they
contend that the search warrant of 203 S. Prospect was supported by probable cause, was not
stale, and was not otherwise tainted by material misrepresentations or omissions. With respect to

7

Although Plaintiff identifies many additional defendants in describing the second claim, she
alleges causation and harm only with respect to Detective Gurnett and Sergeant Rodgers. (See
docket #106 at ¶¶ 47,48.) In that sense, she has not stated a claim for relief against any of the other
defendants.
18

Plaintiff’s third cause of action, they note that Plaintiff has provided no facts or evidence to
support a claim for failure to train or supervise.
The County Defendants’ Motion for Summary Judgment asserts that Detective Gurnett
and the officers who participated in executing the warrant are also entitled to qualified immunity.
Like the City Defendants, the County Defendants advance extensive argument on the validity of
the warrant prepared by Detective Gurnett. Even if the warrant is invalid, the County Defendants
argue that the defendants who participated in executing the warrant are entitled to qualified
immunity for unlawful entry based on the “good faith” exception to the warrant requirement.
With regard to the search, the County Defendants identify reasons why, in their view, the force
used was reasonable under the circumstances. Finally, the County Defendants contend that
Plaintiff has failed to demonstrate that each of the individual officers named in Plaintiff’s Second
Amended Complaint personally violated Plaintiff’s constitutional rights during the execution of
the search warrant.
Plaintiff’s responses to both Motions for Summary Judgment emphasize the deficiencies
of the search warrant and the extreme nature of its execution. However, Plaintiff concedes that
she has failed to provide sufficient facts in support of her claims against Officer Andrews, the
City of Colorado Springs, and Richard Myers. Thus, Plaintiff agrees that Defendants Andrews,
the City of Colorado Springs, and Richard Myers are entitled to judgment in their favor as a
matter of law, and that her third claim should be dismissed.
RELEVANT LEGAL STANDARDS
I.

Summary Judgment
Summary judgment serves the purpose of testing whether a trial is required. Heideman v.

19

South Salt Lake City, 348 F.3d 1182, 1185 (10th Cir. 2003). The Court shall grant summary
judgment if the pleadings, depositions, answers to interrogatories, admissions, or affidavits show
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(c). A fact is material if it might affect the outcome of the suit under the
governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving
party bears the initial responsibility of providing to the Court the factual basis for its motion and
identifying the pleadings, depositions, answers to interrogatories, and admissions on file, together
with affidavits, if any, which reveal that there are no genuine issues as to any material facts, and that
the party is entitled to summary judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). However, the non-moving party has the burden of showing that there are issues of
material fact to be determined. Id. at 324.
That is, if the movant properly supports a motion for summary judgment, the opposing party
may not rest on the allegations contained in his complaint, but must respond with specific facts
showing a genuine factual issue for trial. Fed. R. Civ. P. 56(e); Scott v. Harris, 550 U.S. 372, 380
(2007) (“[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.”) (emphasis in original) (citation omitted); see also Hysten v.
Burlington Northern & Santa Fe Ry., 296 F.3d 1177, 1180 (10th Cir. 2002). These specific facts
may be shown “‘by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere
pleadings themselves.’” Pietrowski v. Town of Dibble, 134 F.3d 1006, 1008 (10th Cir. 1998)
(quoting Celotex, 477 U.S. at 324). “[T]he content of summary judgment evidence must be
generally admissible and . . . if that evidence is presented in the form of an affidavit, the Rules of

20

Civil Procedure specifically require a certain type of admissibility, i.e., the evidence must be based
on personal knowledge.” Bryant v. Farmers Ins. Exch., 432 F.3d 1114, 1122 (10th Cir. 2005). “The
court views the record and draws all inferences in the light most favorable to the non-moving party.”
Pepsi-Cola Bottling Co. of Pittsburg, Inc. v. Pepsico, Inc., 431 F.3d 1241, 1255 (10th Cir. 2005).
II.

Qualified Immunity
Qualified immunity protects from litigation a public official whose possible violation of a

plaintiff’s civil rights was not clearly a violation at the time of the official’s actions. See Harlow
v. Fitzgerald, 457 U.S. 800, 818 (1982). It is an entitlement not to stand trial or face the other
burdens of litigation. Ahmad v. Furlong, 435 F.3d 1196, 1198 (10th Cir. 2006) (internal quotations
and citations omitted). The privilege is an immunity from suit rather than a mere defense to liability.
Id. When a defendant asserts the defense of qualified immunity at summary judgment, the burden
shifts to the plaintiff to overcome the asserted immunity. Riggins v. Goodman, 572 F.3d 1101, 1107
(10th Cir. 2009). “The plaintiff must demonstrate on the facts alleged both that the defendant
violated his constitutional or statutory rights, and that the right was clearly established at the time
of the alleged unlawful activity.” Id. (citing Pearson v. Callahan, 555 U.S. 223, 129 S. Ct. 808, 818
(2009)).
In Pearson, the Supreme Court discarded a review process that required courts to examine
the elements of qualified immunity sequentially, first considering whether a right had been violated,
and then second - if the court concluded a right had been violated - whether that right was clearly
established at the time of the alleged violation. 129 S. Ct. at 816-22. Pearson retired this process,
instead affording courts the discretion to decide “which of the two prongs of the qualified immunity
analysis should be addressed first in light of the circumstances in the particular case at hand.” Id.

21

at 818; see also Christensen v. Park City Mun. Corp., 554 F.3d 1271, 1277 (10th Cir. 2009).
DISCUSSION
All Defendants remaining in this case assert an entitlement to qualified immunity. Because
the qualified immunity analysis includes an evaluation of the merits, the Court will focus its efforts
on determining whether Plaintiff has established on supported facts that each of the remaining
Defendants violated her clearly established constitutional rights.8 Within this broad inquiry, the
Court observes two distinct issues and two corresponding categories of defendants. The first issue
is whether the search warrant application presented by Detective Gurnett and Sergeant Rodgers was
“so lacking in indicia of probable cause as to render official belief in its existence unreasonable.”
Malley v. Briggs, 475 U.S. 335, 344-45 (1986). Because the parties agree that Detective Gurnett’s
and Sergeant Rodgers’ involvement was limited to the procurement of the search warrant, the
resolution of this question will determine whether they are entitled to summary judgment on both
of Plaintiff’s remaining claims.

The second issue involves whether the remaining County

Defendants employed force that was clearly constitutionally excessive in executing the search
warrant. In the Court’s view, the first issue informs the second only to the extent that the officers
named in Claim One may have entered Plaintiff’s home unreasonably if the warrant was facially
deficient or sufficiently lacking in probable cause. After determining whether the remaining County
Defendants were entitled to act on the warrant, the Court will consider whether the methods used
in executing the search violated Plaintiff’s clearly established constitutional rights. Finally, the Court
will determine who may be liable for any resulting violation.
8

Generally, to be clearly established, “there must be a Supreme Court or Tenth Circuit
decision on point, or the clearly established weight of authority from other courts must have found
the law to be as the plaintiff maintains.” Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504, 516
(10th Cir.1998).
22

I.

Validity of the Search Warrant
The Supreme Court has recently reiterated that “[w]here the alleged Fourth Amendment

violation involves a search or seizure pursuant to a warrant, the fact that a neutral magistrate has
issued a warrant is the clearest indication the officers acted in an objectively reasonable manner [or
with] ‘objective good faith.’” Messerschmidt v. Millender, 123 S. Ct. 1235, 1245 (2012) (citing
United States v. Leon, 468 U.S. 897, 922-23 (1984)). The shield of immunity conferred by the
warrant is not entirely impervious; a suit may go forward where the absence of probable cause
supporting the warrant “is so obvious that no reasonably competent officer would have concluded
that a warrant should issue.” Id. (citing Malley, 475 U.S. at 341). But “the threshold for establishing
this exception is a high one, and it should be.” Id. Underlying this highly protective standard is the
“sound presumption that the magistrate is more qualified that the police officer to make a probable
cause determination.” Id; see also United States v. Gonzales, 399 F.3d 1225, 1228 (10th Cir. 2005)
(citations and internal quotations omitted) (“Searches conducted pursuant to a warrant are favored,
and, as such, the magistrate’s determination that probable cause exists is entitled to great
deference.”). Once a judge has decided that probable cause exists, the reviewing court’s assessment
is limited to determining whether the affidavit provided a “substantial basis” for reaching this
conclusion. United States v. Biglow, 562 F.3d 1272, 1281 (10th Cir. 2009).
In this case, Plaintiff contests probable cause on several bases. At a general level, she
disputes whether probable cause ever existed to search 203 S. Prospect. But more particularly, she
argues that even if the information contained the affidavit provided probable cause at some point,
it had become stale by the time Sergeant Rodgers presented the search warrant to Judge Kane.
Finally, she contends that the affidavit omitted several pieces of information that would have

23

undermined probable cause if they had been included. The Court will consider each argument in
turn. In so doing, the Court remains mindful of the high threshold Plaintiff must overcome to hold
Defendants liable for a violation of this sort. See id.
A.

Probable Cause Generally

In determining whether a search warrant is supported by probable cause, a judge must
consider whether the totality of the information9 presented “establishes the fair probability that
contraband or other evidence of a crime will be found in a particular place.” United States v. Roach,
582 F.3d 1192, 1200 (10th Cir. 2009). Although the information presented must demonstrate a
connection between the place to be searched and the items sought, “this nexus. . .may be established
through normal inferences about the location of evidence.” Biglow, 562 F.3d at 1280.
Though the probable cause inquiry is a flexible one, see Illinois v. Gates, 462 U.S. 213, 23839 (1983), it cannot be satisfied simply by “piling hunch upon hunch.” Roach, 582 F.3d at 1200
(quoting United States v. Valenzuela, 364 F.3d 828, 897 (10th Cir. 2004)). Something more
concrete is required. When such facts are provided, a judge may consider “the practical
considerations of everyday life” in conjunction with the affidavit to draw his or her own reasonable
conclusions as to the likelihood that evidence will be found in a particular place. Biglow, 562 F.3d
at 1280.
In this case, Defendants rely significantly on the Tenth Circuit’s recognition that a person

9

The scope of the information a judge may consider is determining whether there is probable
cause is not limited to the four corners of the affidavit presented in support of the warrant sought.
Kaiser v. Lief, 874 F.2d 732, 735 (10th Cir. 1989). Rather, the Tenth Circuit has confirmed that a
judge may also rely on other materials submitted concurrently with a particular application. Id.
Thus, in evaluating whether the warrant to search 203 S. Prospect is valid, this Court may also
consider other information submitted in conjunction with the twenty-five (25) warrant applications
presented to Judge Kane.
24

distributing drugs may have evidence of such distribution at his or her residence. See id. They note
that the affidavit submitted in support of the search warrant application for 203 S. Prospect
contained information that a CI had identified Kirt Santistevan as a supplier of methamphetamine,
and detectives had witnessed Kirt Santistevan brokering drug transactions between the CI and Luis
Vega on two separate occasions. (Docket #127-6, 3.) While Plaintiff does little to dispute Kirt
Santistevan’s involvement in these transactions, she argues that more was needed to link Kirt
Santistevan to the residence. In particular, she asserts that Detective Gurnett’s reliance on Kirt
Santistevan’s representations to police that he lived at 203 S. Prospect should not have been taken
at face-value, as Detective Gurnett acknowledged that people involved in criminal activity have a
tendency to lie about such matters.
The Tenth Circuit has recognized, in the context of arrest warrants, that individuals involved
in criminal activity may live at multiple locations or may provide false information to police
regarding their residence. See Valdez v. McPheters, 172 F.3d 1220, 1225 (10th Cir. 1999). At the
same time, the Valdez court made clear that a determination of residence can be made without direct
surveillance or the actual viewing of the suspect on the premises. Id. at 1226. Although Valdez does
not speak directly to the matter at hand, the Court is persuaded that it was reasonable for Detective
Gurnett to rely on Kirt Santistevan’s representations, along with over 20 indicia of residence
contained in the Master Index files, in preparing the search warrant for 203 S. Prospect. Detective
Gurnett’s representations to this effect are sufficient to establish a nexus between Kirt Santistevan’s
involvement in narcotics distribution and 203 S. Prospect.
In addition to Kirt Santistevan’s suspected connection to 203 S. Prospect, Detective
Gurnett’s affidavit provided several other reasons why drugs or evidence of drug trafficking might

25

be located at the residence. First, the vehicle of Luis Vega (who participated with Kirt Santistevan
in two observed drug transactions) made approximately ten (10) stops at 203 S. Prospect between
July 23, 2009, and August 20, 2009. (Docket #127-5 at 5.) One of the stops occurred immediately
after Detective Gurnett observed Luis Vega in a suspected drug transaction on July 27, 2009. (Id.)
In addition to Vega’s contact with 203 S. Prospect, the affidavit included a description of a
telephone call involving the phone of Jorge Perez and the telephone number registered to 203 S.
Prospect.10 During the call, an unknown female said, “Yeah we’re bugging.” (Id. at 4.) According
to Detective Gurnett, the content of the call and the demeanor of the participants indicated that this
comment was coded language associated with the use of illegal narcotics at 203 S. Prospect. (Id.)

Plaintiff appears particularly concerned that the affidavit relies excessively on the “mere
propinquity” between Plaintiff and her husband’s familial relationships with suspected conspirators.
See Ybarra v. Illinois, 444 U.S. 85, 91 (1979). While the Court recognizes the well-established
principle that probable cause cannot be based on familial relationships alone (see id.), the affidavit
in this case does not emphasize or rely on Plaintiff’s relationships with anyone. Instead, it explains
(as it is required to) the connection between the co-conspirators and the location of 203 S. Prospect.
Considering Kirt Santistevan’s participation in various drug transactions and his self-described
personal connection with 203 S. Prospect, Luis Vega’s frequent contact with 203 S. Prospect, and
suspected drug-related comments made by a woman in the home, the Court finds that there was
probable cause to believe that drugs or evidence of drug trafficking would be found at 203 S.
10

The Court observes a discrepancy between Detective Gurnett’s affidavit and the facts
agreed to by the parties, as the parties represent that the phone call at issue in the warrant was placed
from the phone of Luis Vega. Because significance of the call arises from the statements of the
unknown female participant, this discrepancy is not material.
26

Prospect. Though additional statements regarding Plaintiff’s relationship with other co-conspirators
may have strengthened a finding of probable cause, the affidavit was sufficient without them.
Applying, as the Court must, the requisite degree of deference given to search warrants, the Court
finds that there was a substantial basis for the warrant issued by Judge Kane. At a minimum,
Plaintiff has failed to demonstrate that the absence of probable cause was “so obvious that no
reasonably competent officer would have concluded that a warrant should issue.”See Malley, 475
U.S. at 341.
B.

Staleness

A search warrant will not be valid unless probable cause to search continued through the time
officers filed the affidavit. United States v. Neal, 500 F.2d 305, 309 (10th Cir. 1974). While probable
cause cannot be based on stale information, the determination of timeliness “does not depend simply
on the number of days that elapsed between the facts relied on and the issuance of the warrant.”
United States v. Snow, 919 F.2d 1458, 1459-60 (10th Cir. 1990). Rather, courts must consider “the
nature of the criminal activity, the length of the activity, and the nature of the property to be seized.”
Id. at 1460.
In Snow, the Tenth Circuit recognized that ongoing and continuous criminal activity renders
the passage of time “less critical” for purposes of staleness. Id. The fact that the items sought in
Snow included records of criminal activity also weighed against a finding of staleness insofar as such
records were likely to be kept for some time. Id. Applying Snow in the context of ongoing illicit
drug trafficking, the Tenth Circuit held that a five-month gap between when the police received tips
and when a search warrant was obtained did not render the information stale. United States v. Myers,
106 F.3d 936, 939 (10th Cir. 1997). Under similar facts, the Tenth Circuit has also upheld a search

27

warrant executed approximately three months after officers acquired information used to obtain the
warrant. Untied States v. Mathis, 357 F.3d 1200, 1207 (10th Cir. 2004). Delineating the far end of
the spectrum, the Tenth Circuit has found that a warrant relying on five-year-old evidence and a
defendant’s year-old admission of his gang “lifestyle” were too stale to establish probable cause to
search for drugs. Roach, 582 F.3d at 1201-02 (explaining that it “would stretch the [rule] beyond
its breaking point to conclude that an isolated statement, occurring one and a half years before the
issuance of the warrant, is evidence that a prior course of criminal conduct is ongoing.”).
In this case, Plaintiff contends that even if Detective Gurnett’s affidavit provided probable
cause for the search at one time, the information had become stale by the time Sergeant Rodgers
presented the affidavit to Judge Kane for review. In particular, Plaintiff emphasizes that the last
criminal activity involving Kirt Santistevan occurred on April 3, 2009. Additionally, Plaintiff notes
that Kirt Santistevan was arrested on August 10, 2009, and remained in jail through the execution
of the warrant. In Plaintiff’s view, this reduced the likelihood that he continued to use 203 S.
Prospect to store drugs.
While Defendants agree with the above facts, they assert that the search warrant for 203 S.
Prospect was not based solely on Kirt Santistevan. Rather, Defendants contend that Kirt Santistevan
was part of a larger conspiracy engaged in ongoing criminal activity through the middle of
September 2009. Defendants note that the arrest warrant for Kirt Santistevan, which Judge Kane
reviewed contemporaneously with the search warrant for 203 S. Prospect, indicated that officers had
intercepted approximately 648 pertinent phone calls related to Luis Vega and his associates’
procurement and distribution of drugs, money, and firearms. (Docket #127-7, 91.) Defendants also
cite statements in Luis Vega’s arrest warrant regarding plans to expand the organization by

28

establishing new narcotics connections in Mexico. (Id. at 48.)
Considering the entirety of the information presented to Judge Kane, the Court does not find
that the search warrant of 203 S. Prospect was based on stale information. First, Kirt Santistevan’s
participation in two observed drug transactions creates a reasonable inference that records of drug
transactions may be found at his residence. Such records were included among the items sought in
the warrant and were not likely to disappear upon his incarceration. See Snow, 919 F.2d at 1460
(recognizing that a defendant’s records of criminal activity are “of the type [of items] that would be
kept for some time. . .”). In that sense, Kirt Santistevan’s incarceration would not have undermined
probable cause for the search. In addition to Kirt Santistevan, Luis Vega’s frequent trips to 203 S.
Prospect throughout July and August of 2006, including a stop after a suspected drug transaction,
suggest that he may have been storing narcotics or cash at the home or distributing narcotics to the
residents. Morever, it cannot be forgotten that Sergeant Rodgers presented the search warrant for
203 S. Prospect in conjunction with over twenty (20) other search and arrest warrants involving a
DTO intent on expanding its business. (See docket #127-7 at 49.) These warrants place the search
warrant for 203 S. Prospect in the context of continuous and ongoing criminal activity involving Kirt
Santistevan, Luis Vega, and Jorge Perez, all of whom had connections with 203 S. Prospect. In light
of the nature of the activity, the length of the activity, and the items sought, the Court finds, as in
Snow, the information supporting the search warrant for 203 S. Prospect was not stale at the time
of its presentation to Judge Kane.
C.

Omissions

An otherwise valid search warrant violates the Fourth Amendment if an affiant “knowingly,
or with reckless disregard for the truth, include[s] false statements in the affidavit[.]” Wolford v.

29

Lasater, 78 F.3d 484, 489 (10th Cir. 1996). Likewise, an affiant who “knowingly or recklessly
omit[s] information which, if included, would have vitiated probable cause” also violates the Fourth
Amendment. Id. Where false information is included, “the existence of probable cause is
determined by setting aside the false information and reviewing the remaining contents of the
affidavit.” Id. To determine whether omitted information vitiates probable cause, the court must
examine the affidavit as though the omitted information had been included. Id. Where sufficient
evidence exists to provide probable cause, the inclusion of information disclosing an absence of
evidence will not render a warrant invalid. See Kerns v. Bader, 663 F.3d 1173, 1188 (10th Cir.
2011) (upholding an arrest warrant which omitted information that a defendant’s weapon was not
involved in a shooting where “sufficient other evidence existed to provide probable cause to think
[the defendant] was the shooter. . .”) (emphasis in original).
To overcome a defendant’s assertion of qualified immunity regarding a Fourth Amendment
claim premised on judicial deception, a plaintiff “must make a substantial showing of deliberate
falsehood or reckless disregard for truth[.]” Allen v. Cunningham, 51 F.3d 285 (table), 1995 WL
143130, *5 (10th Cir. 1995) (citing Snell v. Tunnell, 920 F.2d 673, 698 (10th Cir. 1990)). The Tenth
Circuit has articulated the two-part test as requiring a plaintiff to (1) present an affirmative showing
of dishonesty; and (2) establish that, but for the dishonesty, the search warrant would not have been
issued. Id.
In this case, Plaintiff alleges that the search warrant for 203 S. Prospect included material
misrepresentations and omitted information that would vitiate probable cause. Both alleged
deficiencies concern the pole camera placed in Plaintiff’s neighborhood during July 2009 to monitor
736 E. Cucharras Street, the home of Jorge Perez. Beginning with the misrepresentations, Plaintiff

30

takes issue with Detective Gurnett’s reliance on the video surveillance in asserting that Vega had
“regular contact” with Kirt Santistevan and/or the occupants of 203 S. Prospect. (Docket #127-5.)
In contravention of this statement, Plaintiff offers testimony from Detective Gurnett’s deposition
regarding Kirt Santistevan’s arrest in April 2009 and Detective Gurnett’s inability to recall, three
years after the incident, whether Kirt Santistevan had remained in custody from April to September
of 2009. (Docket #127-3 at 31-34.) Additionally, Plaintiff notes that neither Detective Gurnett nor
Sergeant Rodgers could recall seeing any member of the conspiracy actually enter the residence at
203 S. Prospect. (Id. at 74; docket #127-1 at 22.)
In response to Plaintiff’s concern regarding the absence of visual confirmation from the pole
camera, Defendants assert that because the pole camera was intended to monitor Jorge Perez’s
residence, the camera did not capture the entrance to 203 S. Prospect. But, as Plaintiff notes,
Detective Gurnett did not document the limited view of the pole camera in his affidavit. Plaintiff
believes this omission is material, along with several others. Specifically, Plaintiff objects to
Detective Gurnett’s failure to state that officers had never observed Kirt Santistevan, Jorge Perez,
or Luis Vega enter the residence at 203 S. Prospect. In addition to what the pole camera did not
capture, Plaintiff asserts that intercepted phone calls also failed show that any drugs, guns, or records
were stored at 203 S. Prospect. Finally, Plaintiff contests the omission of information regarding Kirt
Santistevan’s incarceration at the time of the warrant application. Had this information been
included, Plaintiff believes Judge Kane would not have found probable cause for the search warrant.
Defendants assert that Plaintiff has not presented sufficient information to establish that
Detective Gurnett deliberately presented false information or displayed reckless disregard for the
truth of the statements contained in the affidavit. At most, Defendants contend that Detective

31

Gurnett negligently omitted information that would have bolstered probable cause, including further
details about the date of the phone call to 203 S. Prospect and information describing the quantity
and contents of other phone calls between members the DTO. With respect to Plaintiff’s specific
contentions, Defendants deny that any of the statements were false or misleading. They note that
Detective Gurnett never indicated that he saw the conspirators entered the residence at 203 S.
Prospect, and stated only that he observed them on the property. Additionally, Defendants assert
that Detective Gurnett’s statement that “on September 15th, [he] learned that [Kirt Santistevan] was
in custody. . .” was not false or misleading as to Kirt Santistevan’s custodial status. (See docket
#127-5 at 4.)
The Court does not agree entirely with Defendants’ description of events but is also not
persuaded that Plaintiff has met her burden. Turning to the affidavit, the Court is satisfied that
Detective Gurnett made clear that the pole camera was intended to capture the home of Jorge Perez,
but that the residence at 203 S. Prospect was also in view. (Docket #127-5 at 5.) In light of this
capability, Detective Gurnett represented that he was “aware that during the course of the
investigation, Mr. Vega has had regular contact with the [Kirt Santistevan] and/or the occupants of
203 [S.] Prospect. . .” (Id.) While the Court agrees that Detective Gurnett did not represent that the
co-conspirators entered the residence, his statement conveys more than an observation of the coconspirators on the premises. It implies that the pole camera enabled him to witness some
interaction or communication between Luis Vega, Kirt Santistevan, and Plaintiff or her husband.
There is no other evidence in the record to suggest this is true. At the same time, Plaintiff has not
presented evidence that it is false. She has simply revealed gaps in Detective Gurnett’s memory
regarding his observations of 203 S. Prospect and Kirt Santistevan during the investigation. This

32

is not enough to show deliberate falsehood or reckless disregard for the truth.
With regard to the omissions, the Court finds that they do not affect the validity of the
warrant because probable cause was not based on, and does not require, an officer’s visual
confirmation that Kirt Santistevan or any of the co-conspirators entered the home. See Valdez, 172
F.3d at 1226. These facts remain: Kirt Santistevan (a known drug broker) listed 203 S. Prospect as
his address, Luis Vega (a known distributor of drugs) made frequent trips to 203 S. Prospect, and
someone within the home at 203 S. Prospect used coded language indicative of drug use during the
time of the investigation. Like the Tenth Circuit in Kerns, supra, the Court is persuaded that the
facts presented in the affidavit established probable cause and that Detective Gurnett was not
required to include statements regarding the absence of evidence from particular sources. The fact
that the recorded phone calls did not mention 203 S. Prospect would not have undermined the other
reasons for believing that 203 S. Prospect may contain drugs or evidence of drug trafficking.
Additionally, the Court does not find the absence of any direct reference to 203 S. Prospect unusual,
as the Court suspects that those involved in drug trafficking are not inclined to mention specific
addresses in their phone calls. Finally, the Court does not find that Detective Gurnett’s failure to
provide an up-to-the-minute report regarding Kirt Santistevan’s incarceration poisons the warrant.
Detective Gurnett’s assertion that Kirt Santistevan was in custody of as of September 15, 2009,
would permit Judge Kane to reasonably infer that his status had not changed within two weeks.
Even if Judge Kane did not draw that inference, the reasons for searching 203 S. Prospect were not
limited to Kirt Santistevan and would not have vanished simply because Kirt Santistevan was in
custody.
Upon review of Detective Gurnett’s affidavit and after considering the arguments of all

33

parties, the Court finds that there was a substantial basis for Judge Kane’s finding of probable cause
to search 203 S. Prospect at the time Detective Gurnett and Sergeant Rodgers applied for a warrant.
Plaintiff has not demonstrated on supported facts that Detective Gurnett deliberately or recklessly
presented misleading information or omitted information that would have vitiated Judge Kane’s
finding of probable cause. Therefore, the Court finds that Detective Gurnett and Sergeant Rodgers
are entitled to qualified immunity with respect to Claim Two.
Correlatively, the Court further finds that the officers named in Claim One did not act with
excessive force simply by entering the residence. Because Plaintiff has not demonstrated that the
search warrant was constitutionally infirm, the Court need not consider whether the good faith
exception applies to the remainder of the County Defendants.
II.

Excessive Force
Officers executing a valid search warrant are still bound by the Fourth Amendment’s

overarching requirement of reasonableness. In determining whether a particular search or seizure
comports with reasonableness, a court must balance “the nature and the quality of the intrusion on
the individual’s Fourth Amendment interests, against the countervailing governmental interests at
stake.” Graham v. Connor, 490 U.S. 386, 396 (1989)). This inquiry requires a court to consider
whether the “the totality of the circumstances justified a particular sort of search or seizure.”
Tennessee v. Garner, 471 U.S. 1, 9 (1985). Relevant factors include “the crime’s severity, the
potential threat posed by the suspect to the officer’s and others’ safety, and the suspect’s attempts
to resist or evade arrest.” Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1188 (10th Cir.
2001) (internal quotations omitted). But the assessment is not to be made in a vacuum. Rather, a
court must determine reasonableness from the perspective of a reasonable officer in the context in

34

which the decision was made, recognizing that officers “may be forced to make split-second
judgments under stressful and dangerous conditions.” Id.
Guided by the Tenth Circuit’s method of analysis in excessive force cases, the Court will
consider each element of force separately to determine whether its use was reasonable under the
circumstances. See id. at 1189-1194 (taking a segmented approach to excessive force evaluation).
Proceeding chronologically, the Court will first evaluate the decision to use a SWAT team to
execute the search warrant. Second, the Court will consider the detonation of a flash-bang device
on the side of Plaintiff’s home. Third, the Court will determine whether the officers’ display of
firearms was appropriate under the circumstances. Finally, the Court will examine the officers’
conduct inside the home, including allegations that they seized Plaintiff for an excessive period of
time or stepped on her oxygen tube. After determining where, if at all, excessive force was used,
the Court will determine who may be held liable for the violation.
A.

Use of a SWAT Team and Dynamic Entry

In Holland, the Tenth Circuit extended Fourth Amendment scrutiny to the planning of an
arrest or search by law enforcement, including the decision to use a SWAT team to accomplish a
“dynamic entry.” Id. at 1189. As the Holland court recognized, “[t]he decision to deploy a SWAT
team to execute a search warrant involves the decision to make an overwhelming show of
force–force far greater than normally applied in police encounters with citizens.” Id. at 1190.
Because the reasonableness of a search and seizure depends not only on when a seizure is made, but
also how it is carried out, “the decision to deploy a SWAT team to execute a warrant must be
‘reasonable’ because it largely determines how the seizure is carried out, thereby determining the
extent of the intrusion on the individual’s Fourth Amendment interests.” Id. (citing Garner, 471 U.S.

35

at 8).
The court in Holland determined that the force invoked by the decision to deploy a SWAT
team to effectuate a dynamic entry was not excessive where the deputies executing a misdemeanor
arrest warrant planned to encounter several persons in addition to the suspect and believed there
would be firearms in the residence. Id. at 1191. In the wake of Holland, the Tenth Circuit has relied
on the same variables in upholding other SWAT team deployments as reasonable. See Elum v.
Schriad, 46 F. App’x 587, 595 (10th Cir. 2002) (decision to use SWAT team to search residence was
reasonable where police knew several adults would be present and firearms had been found in the
home “some years earlier”).
The Court is aware of, and Plaintiff cites, no cases in which the Tenth Circuit has found that
the deployment of a SWAT team to execute a search warrant amounted to excessive force. To the
contrary, the Tenth Circuit has intimated that even a blanket policy of sending a SWAT team to
execute warrants in all narcotics cases may not offend the Fourth Amendment in the absence of
evidence that the decisionmaker “knew the team would use excessive force, intended to cause harm,
or instructed the team to use excessive force.” See Whitewater v. Goss, 192 F. App’x 794, 798 (10th
Cir. 2006) (citing Holland, 268 F.3d at 1119).
Unlike Holland, in which officers used a SWAT team to conduct a search for evidence of
a misdemeanor, the search warrant executed in this case sought evidence of felony drug distribution.
The suspected crime in this case is also significant in that the items to be seized from 203 S.
Prospect (including drugs, records, etc.) could be more easily destroyed than the articles of clothing
officers hoped to find in Holland. See Holland, 268 F.3d at 1198. This required officers to move
more swiftly in entering the home. Because the Tenth Circuit has upheld the use of a SWAT team

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in circumstances where, in the Court’s view, its necessity was less apparent, the Court cannot find
that Sergeant Krammer violated clearly established law by deciding to use a SWAT team in this case
to make a dynamic entry into Plaintiff’s residence. The Tenth Circuit’s statements in Whitewater
further underscore this conclusion insofar as they signal a general acceptance of SWAT teams in the
context of narcotics investigations. See Whitewater,192 F. App’x at 798.
B.

Detonation of a Flash-Bang Device

The Tenth Circuit has recognized a Fourth Amendment right be to be free from the
unreasonable detonation of a flash-bang device by police. See Kirk v. Watkins, 1999 WL 31119, at
*3 (10th Cir. June 11, 1999); see also Myers, 106 F.3d at 940. Like other methods of force, the
court in Kirk noted that the reasonableness of detonating a flash-bang device depends on the facts
and circumstances of each case. 1999 WL 31119, at *3. Though Tenth Circuit precedent in this area
is somewhat sparse, the court has identified several circumstances that both undermine and
substantiate the reasonableness of this particular variety of force. In Myers, the court found that the
use of a flash-bang device was ultimately reasonable where agents knew that the occupant had a
history of illegal drug trafficking and had spent time in federal prison for a fire bombing incident.
106 F.3d at 940. Similarly, the Kirk court held that it was reasonable for officers to use a flash-bang
device where: (1) officers suspected the occupant to have a number of loaded firearms at his
disposal; (2) the occupant had previously threatened to kill police officers if they entered his home;
(3) the occupant had a prior conviction for a violent weapons offense; and (4) the purpose of the
warrant was to gather evidence of drug trafficking. 1999 WL 31119, at *3.
In both Kirk and Myers, the court reached its finding of reasonableness with an apparent
degree of reluctance. For example, the use of a flash-bang device in a house where “innocent and

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unsuspecting children sleep” gave the Myers court “great pause.” 106 F.3d at 940. The Myers court
went on to reject the use of flash-bang devices “as a routine manner.” Id. Citing this language and
a concurring opinion in Jenkins v. Wood, 81 F.3d 988 (10th Cir. 1996), the Kirk court advised that
officers who adopt “commando-style tactics” as a standard operating procedure run the risk of
violating the Fourth Amendment. 1999 WL 381119, at *4. Even where an officer’s use of a flashbang device is warranted, an officer who detonates the device carelessly may violate the Fourth
Amendment. See id. (suggesting that an officer who failed to consider the location of occupants
or the presence of flammable objects may have violated the plaintiffs’ Fourth Amendment rights).
“Such a rule would be consistent with the [the Tenth Circuit’s] precautionary attitude toward the use
of such devices.” Id. (citing Myers, 106 F.3d at 940).
In this case, like Myers and Kirk, officers executing the search warrant on 203 S. Prospect
sought evidence of drug trafficking. Though the Court has found there was probable cause to
support the search warrant, Sergeant Krammer’s pre-raid surveillance revealed a number of facts
that, in the Court’s view, undermined the need to use “commando-style tactics” in carrying out the
search. In particular, Sergeant Krammer knew Kirt Santistevan was in custody at the time of the
search and that Plaintiff (age 69) and her husband (age 76) were the primary occupants of the home.
Sergeant Krammer had further reason to believe that other persons of danger, including Luis Vega
and Plaintiff’s son, John Santistevan Jr., would not be present at the home during the execution of
the warrant. (Docket #127-2 at 83.) There was, however, a possibility that a three-year-old girl
might be present at 203 S. Prospect, as she had been observed at the residence several days prior to
the search. (Id.)
Echoing Sergeant Krammer, Defendants stress the possibility that other members of the La

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Familia gang could have been present during the search. However, the Defendants have not
presented any evidence, beyond an attenuated connection between Plaintiff and other coconspirators, that would support Sergeant Krammer’s belief that officers would encounter a
dangerous person inside the home at 203 S. Prospect. Though these facts did not eliminate the
possibility that evidence of drug trafficking would be found in the home or that such evidence might
be quickly destroyed, they certainly weigh against the reasonableness of detonating a flash-bang
device.
Defendants attempt to distinguish this case from the Tenth Circuit’s line of decisions in this
area by noting that Deputy McCormack detonated the flash-bang device on the side of the home
rather than in the residence. While the Court agrees that this is generally less extreme than
detonation within a home, the presence of oxygen tanks outside of the home and the use of oxygen
inside the home added an element of danger to this decision insofar as oxygen is highly combustible.
Additionally, the noise associated with a flash-bang device could prove, as it did it in this case,
particularly frightening to a person of advanced age. Finally, there appears to be a dispute between
the parties regarding whether or not the flash-bang device produced smoke. In her deposition,
Plaintiff claims that the flash-bang device filled her entire bedroom with smoke. (Docket #127-4
at 87-88.) According to Plaintiff, the smoke was so thick that she could neither breathe nor “see
anything.” (Id. at 88.) Defendants provide a different account of the facts, asserting that Sergeant
Krammer did not observe smoke inside the residence upon entry. In the Court’s view, the effect
of the flash-bang device, including whether it produced a large volume of smoke, goes to the
reasonableness of its use under the circumstances. In this way, the Court observes a genuine issue
of material fact that is appropriately resolved by a jury. Additionally, based on the stipulated facts,

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the Court believes that a reasonable jury could find that the use of a flash-bang device was
unreasonable under the circumstances. Therefore, the Court concludes that Defendants are not
entitled to judgment as a matter of law regarding this portion of Plaintiff’s excessive force claim.

C.

Officers’ Display of Weapons

In Holland, the Tenth Circuit established that “the display of weapons, and the pointing of
firearms directly at persons inescapably involves the immediate threat of deadly force,” and may
violate the Fourth Amendment if done unreasonably or excessively. Holland, 268 F.3d at 1192. The
Holland court found that continuing to point a loaded firearm at a person who has submitted to the
authority of the officer and who otherwise poses no reasonable danger violates the Fourth
Amendment. Id. at 1193. By contrast, an officer in that scenario “may simply hold[] the weapon
in a fashion ready for immediate use.” Id.
There is no dispute that the officers entering Plaintiff’s residence were armed with
submachine guns. Plaintiff testified that unnamed officers pointed the guns “downstairs” and said
“we’re going to shoot[,] we’re going to shoot.” (Docket #127-4 at 93.) Plaintiff also indicated that
one officer stood next to her and “guard[ed]” her with his gun. (Id. at 93-94.) However, when asked
whether anyone pointed a gun to her head, Plaintiff could not recall. (Id. at 94.) It appears from the
deposition transcript that the traumatic nature of the incident may have affected Plaintiff’s memory.
(See id. at 95) (Plaintiff: “It was a very big event. That’s why I don’t remember.”).
Defendants have neither argued nor demonstrated that Plaintiff was insubordinate during the
execution of the search warrant. In light of Plaintiff’s unequivocal compliance, it would have been
unreasonable for officers to hold Plaintiff at gunpoint during the search of her residence. But

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Plaintiff has not presented affirmative testimony that this is what occurred. To the contrary, the facts
show that Sergeant Krammer approached Plaintiff immediately for the purpose of offering her
medical assistance. Though he may have been armed at the time, he did not violate the Fourth
Amendment simply by holding his weapon “in a fashion ready for immediate use.” See Holland,
268 F.3d at 1193. It is unclear where in the course of events officers threatened to fire their weapons
or pointed them downstairs. But even assuming these facts as true, Plaintiff has not presented
sufficient evidence that such threats were directed at her. In the absence of such evidence, the Court
finds that Defendants are entitled to judgment as a matter of law regarding this aspect of Plaintiff’s
excessive force claim.
D.

Officers’ Temporary Seizure of Plaintiff

In Michigan v. Summers, 452 U.S. 691, 705 (1981), the Supreme Court held that “a warrant
to search for contraband founded on probable cause implicitly carries with it the limited authority
to detain the occupants of the premises while a proper search is conducted.” This is particularly
true in the context of a search for narcotics, where occupants may engage in sudden violence or
make frantic efforts to conceal or destroy evidence. Id. at 702. In such circumstances, “[t]he risk
of harm to both the police and occupants is minimized if officers routinely exercise unquestioned
command of the situation.” Id. at 702-03.
Plaintiff’s Second Amended Complaint asserts that Defendants unlawfully seized and
restrained her during the search of 203 S. Prospect. However, Plaintiff does not claim she was ever
restrained using physical force or ordered to stay in a particular place for an extended period of time.
Rather, Plaintiff testified that, for the most part, officers ignored her and refused to answer her
questions while they were conducting the search. (Docket #127-4 at 103.) On these facts,

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Defendants argue that officers seized Plaintiff by verbal command for only a brief period in order
to secure the premises. Approximately two minutes after Deputy Hess directed Plaintiff to the
kitchen, medical personnel arrived to provide Plaintiff with treatment and transport her to the
hospital.
In the Court’s view, Plaintiff has not presented sufficient facts to demonstrate an excessive
period of seizure. Therefore, the Court finds that Defendants are entitled to judgment as a matter of
law with respect to this facet of Plaintiff’s excessive force claim.
E.

Interference with Oxygen Device

Plaintiff alleges that while executing the warrant, several unknown officers stepped on her
oxygen tube, thereby inhibiting her breathing. Defendants note that Plaintiff has failed to identify
which officers, if any, are responsible for temporarily interfering with her oxygen device. The Court
observes a more significant deficiency, which is the absence of any evidence in the record that
officers intended the deprivation Plaintiff alleges.
Section 1983 requires a plaintiff alleging a constitutional violation to demonstrate more than
mere negligence. Daniels v. Williams, 474 U.S. 327, 333 (1986); see also Darr v. Town of Telluride,
Colo., 495 F.3d 1243, 1257 (10th Cir. 2007) (“Negligence is not a basis for liability under § 1983.
. .”). The Court does not deny the possibility that officers may have stepped on Plaintiff’s oxygen
tube while searching her residence. Given the fast-paced investigation and the other potential
dangers that required their immediate attention, the Court would not expect the officers to focus
excessively on where they placed their feet. But the negligence of their steps, without more, cannot
support a constitutional claim. See id.
III.

Liability

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As described above, the Court finds that material questions of fact remain with respect to the
use of a flash-bang device. On this point, the Court must determine who among Defendants may be
held liable under Section 1983.
To hold a SWAT team supervisor liable for alleged the unconstitutional acts of his
subordinates, a plaintiff must “demonstrate ‘an affirmative link’ through facts showing that he
actively participated or acquiesced in the constitutional violation.” Holland, 268 F.3d at 1187
(citing Winters v. Bd. of Cnt’y Comm’rs, 4 F.3d 848, 855 (10th Cir. 1993)). This requirement is met
where the supervisor personally participates in the violation, exercises control or direction over the
offending officers, or fails to adequately supervise those for whom he is responsible. Id. Other
members of a SWAT team may, of course, be held liable for their own constitutional violations or
the constitutional violations of others if they have a meaningful opportunity to prevent the use of
excessive force but nonetheless fail to do so. See Fogerty v. Gallegos, 523 F.3d 1147, 1163 (10th
Cir. 2008) (citing Jenkins, 81 F.3d at 995).
In this case, it is undisputed that Sergeant Krammer planned and participated in the execution
of the search warrant. He also determined that a flash-bang device should be used and directed
Deputy McCormack to detonate the device at a specific time outside of Plaintiff’s residence. Thus,
the Court finds that Plaintiff has established a sufficient degree of participation on the part of
Sergeant Krammer and Deputy McCormack to proceed to trial against those defendants. With
respect to the remaining defendants, Plaintiff has not provided enough facts to demonstrate
acquiescence. Deputies Marcus Miller, Scott Robblee, John David, and Kimble Gingrich were
standing in a “stack” formation preparing to enter Plaintiff’s residence at the time Deputy
McCormack detonated the flash-bang device. In the Court’s view, the necessity of remaining in

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formation and focusing on the breach deprived these defendants of a meaningful opportunity to
intervene. Additionally, Detective Gurnett and Sergeant Rodgers were not at the scene and did not
participate in the execution of the warrant in any way. Finally, Plaintiff has not established any
personal participation on the part of Ken Moore or Brian Mattson. Therefore, the Court finds
Deputies Miller, Robblee, David, and Kimble, Sergeant Rodgers, Detective Gurnett, Ken Moore,
and Brian Mattson are entitled to summary judgment with respect to this aspect Plaintiff’s excessive
force claim.
CONCLUSION
As described above, the Court finds that Defendants are entitled to summary judgment with
respect to Plaintiff’s Second and Third claims for relief. Plaintiff herself agrees that Claim Three is
deficient, and the Court finds that Claim Two must be dismissed, because the search warrant for 203
S. Prospect was supported by probable cause at the time of presentment and was not rendered invalid
by any material misrepresentations or omissions. With respect to Claim One, the Court finds that
Plaintiff has demonstrated genuine issues material fact regarding the reasonableness of detonating
a flash-bang device during the search of 203 S. Prospect. Sergeant Krammer and Deputy
McCormack may be held liable for this use of force, but Plaintiff has failed to demonstrate the
requisite degree of personal participation with respect to the remaining County Defendants. Thus,
Plaintiff may proceed to trial for the sole purpose of determining whether Sergeant Krammer and
Deputy McCormack violated her Fourth Amendment rights by detonating a flash-bang device
outside of her home. Finding no remaining claims against the City Defendants, the City Defendants’
Motion for Summary Judgment [filed August 31, 2012; docket #126] is GRANTED, and the
County Defendants’ Motion for Summary Judgment Pursuant to Fed. R. Civ. P. 56(c) [filed August

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31, 2012; docket #127] is GRANTED IN PART and DENIED IN PART as stated herein.
Dated in Denver, Colorado, this 5th day of February, 2013.
BY THE COURT:

Michael E. Hegarty
United States Magistrate Judge

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