Alderete v. City of Albuquerque et al

Filing 56

MEMORANDUM OPINION AND ORDER by District Judge James A. Parker. Defendants City of Albuquerque, Ignas Danius, David Montano and Christian Baker's Motion for Summary Judgment 23 is GRANTED in part and DENIED in part as further described herein; and Plaintiff's Motion for Summary Judgment and Memorandum of Law in Support 36 is DENIED, in part, consistent with this opinion. (kg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

ROBERT ALDERETE,
Plaintiff,
v.

No. CIV 17-500 JAP/LF

CITY OF ALBUQUERQUE, OFFICER
IGNAS DANIUS, in his individual capacity
and as employee of the City of Albuquerque;
OFFICER DAVID MONTANO, in his
individual capacity and as employee of the City
of Albuquerque; and DETECTIVE CHRISTIAN
D. BAKER, in his individual capacity and as
employee of the city of Albuquerque,
Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiff Robert Alderete (Mr. Alderete) brings claims under 42 U.S.C. § 1983 against
Defendants City of Albuquerque (City) and three individual police officers stemming from an
alleged unlawful seizure of Mr. Alderete and an alleged unlawful search of his vehicle.
COMPLAINT (Doc. No. 1-1). Mr. Alderete also brings a federal claim of malicious prosecution
against Defendants and state-law claims of negligent hiring, training, supervision, and retention,
respondeat superior, trespass, false arrest, false imprisonment, assault, and battery. Id. Mr.
Alderete’s allegations arise from an August 27, 2015 arrest that occurred when Mr. Alderete and
his companion, “Courtney Cowboy,” presented a personal check made out to Ms. “Cowboy” for
verification at a federal credit union in Albuquerque. The check was written on an account that
had been previously closed due to fraud. Mr. Alderete was arrested on charges of theft of

1

identity, receipt of stolen property, and possession of a firearm by a felon. The charges were later
dismissed without prejudice.
Defendants Police Officers Ignas Danius (Officer Danius), David Montano (Officer
Montano), and Christian D. Baker (Detective Baker) seek summary judgment based on qualified
immunity, asserting, in part, that the officers did not unreasonably seize Mr. Alderete or
unreasonably search his vehicle because the officers had a particularized and objective basis for
suspecting Mr. Alderete was engaged in criminal activity and because the officers had probable
cause to arrest him.1 Due to their position that Mr. Alderete’s arrest was based on probable
cause, Defendants generally contend that all of Plaintiff’s claims fail as a matter of law.
Mr. Alderete argues, in part, that Defendants are not entitled to qualified immunity
because the arresting officers “had no specific facts that showed [Mr. Alderete] had any specific
intent to commit any fraud ….”2 Thus, according to Mr. Alderete, Defendants should not be
shielded by qualified immunity because the officers “clearly violated the requirement to find
probable cause prior to making an arrest” and because the officers’ conduct was objectively
unreasonable. Id. at 16, 17.
Defendants counter that Mr. Alderete’s primary argument regarding whether he did or
did not actually present the personal check for payment at the bank, as opposed to merely
attempt to verify the check at a bank teller’s window, is a non-issue in terms of Defendants’
summary judgment motion. Defendants represent that when “Officer Danius arrested Plaintiff,

1

DEFENDANTS CITY OF ALBUQUERQUE, IGNAS DANIUS, DAVID MONTANO AND CHRISTIAN
BAKER’S MOTION FOR SUMMARY JUDGMENT (Doc. No. 23) (Defendants’ Motion).
2
PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (Doc. No. 29)
(Plaintiff’s Response at 29).

2

[Officer Danius] had developed probable cause that Plaintiff may have committed multiple
crimes, none of which require evidence that Mr. Alderete attempted to cash the check at issue.”3
Mr. Alderete has filed a cross-motion for summary judgment, arguing, in part, that
because the undisputed facts show that Mr. Alderete did nothing more than attempt to verify the
check in question, there was no basis for Officer Danius to have detained and arrested Mr.
Alderete, or to have searched his vehicle. Mr. Alderete seeks summary judgment on only the
federal constitutional claims and the malicious prosecution claim. He does not request summary
judgment on any of the state law claims.4 Mr. Alderete’s Motion is fully briefed.5
On November 16, 2017, the Court held a hearing to address various questions raised by
the parties’ cross-motions for summary judgment. Both parties were represented by counsel, who
presented argument at the hearing. After the hearing, Mr. Alderete submitted PLAINTIFF’S
SUPPLEMENTAL BRIEFING ON PLAINTIFFS’ (sic) MOTION FOR SUMMARY
JUDGMENT AND MEMORANDUM OF LAW IN SUPPORT (Mr. Alderete’s Supplement)
(Doc. No. 52). Mr. Alderete’s counsel also provided the Court with additional video recordings
of the incident. See Notice of Lodging of Exhibits 1-4 (Doc. No. 53).

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DEFENDANTS CITY OF ALBUQUERQUE, IGNAS DANIUS, DAVID MONTANO AND CHRISTIAN
BAKER’S REPLY TO THEIR MOTION FOR SUMMARY JUDGMENT (Doc. No. 42) (Defendants’ Reply at 1–
2).
4
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM OF LAW IN SUPPORT (Doc.
No. 36) (Mr. Alderete’s Motion).
5
DEFENDANTS CITY OF ALBUQUERQUE, IGNAS DANIUS, DAVID MONTANO AND CHRISTIAN
BAKER’S RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM OF
LAW IN SUPPORT [Doc. No. 36] (Doc. No. 44) (Defendants’ Response); and PLAINTIFF’S REPLY IN
SUPPORT OF MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM OF LAW IN SUPPORT (Doc.
No. 48) (Mr. Alderete’s Reply). See also Doc. Nos. 52–54.

3

Having considered the pertinent law and argument by counsel, along with the briefing,
supplemental briefing, and all of the exhibits,6 the Court finds that Defendants’ Motion for
Summary Judgment should be granted in part and denied in part, and that Plaintiff’s Motion for
Summary Judgment should be denied, in part. The Court will require additional briefing by both
parties as explained below.
Summary Judgment and Qualified Immunity
A.

Summary Judgment

Rule 56 directs that “[t]he court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). A party asserting that a fact is or cannot be genuinely
disputed must support such assertion by “citing to particular parts of materials in the record,”
including affidavits, or “showing that the materials cited do not establish the absence or presence
of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the
fact.” Fed. R. Civ. P. 56(c)(1)(A), (B). In evaluating a request for summary judgment, the Court
construes the non-movant’s evidence as true, and all justifiable and reasonable inferences are
drawn in the non-movant’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
6

Defendants identified their exhibits by letter, e.g., Defendants’ Exhibits A–E. Defendants also filed with the Court
a copy of Officer Danius’s lapel camera video marked as Ex. A–1 (Danius Video #1) (Doc. No. 24). There is a
corresponding transcript of Officer Danius’s Video #1 (Ex. A–2). For some reason, Mr. Alderete did not identify his
exhibits by numbers and, instead, also used letters for some of the exhibits. See e.g., Mr. Alderete’s Exhibits D–G.
Mr. Alderete filed copies of two lapel camera videos: Ex. A–C (Montano Video) (Doc. No. 30) and Ex. H (Danius
Video #2) (Doc. No. 34). There are no corresponding transcripts of these two videotapes. After the November 16
hearing, Mr. Alderete filed a single disc marked as Exhibits 1-4 (Doc. No. 53) containing four lapel camera video
recordings. Two of the supplemental video recordings (Exhs. 1 and 2) were already submitted to the Court by
Defendants as Ex. A-1 and by Plaintiff as Ex. H. Mr. Alderete should not have submitted video recordings that were
already exhibits to earlier filed briefs. D.N.M. LR-Civ 10.7 (“An exhibit should be submitted only once and may
later be referred to by document title and filing date.”). The other two supplemental video recordings, Plaintiff’s Ex.
3 and Ex. 4 contain new video footage but very little, if any, of these two recordings contains evidence material to
the cross-motions for summary judgment. Mr. Alderete also marked as Ex. A to his Motion for Summary Judgment,
a transcript from a state court sentencing hearing held October 19, 2015. See Mr. Alderete’s Motion at 4, ¶ 21. When
the parties both mark an exhibit with the same exhibit letter, the Court will refer to the exhibit as either Defendants’
or Plaintiff’s exhibit.

4

To defeat summary judgment, the nonmoving party must come forward with more than a
showing of the “existence of a scintilla of evidence in support of the plaintiff’s position;” “there
must be evidence on which the [trier of fact] could reasonably find for the plaintiff.” Anderson,
477 U.S. at 252. However, “[a]t the summary judgment stage the judge’s function is not to weigh
the evidence and determine the truth of the matter, but to determine whether there is a genuine
issue for trial.” Randle v. City of Aurora, 69 F.3d 441, 453 (10th Cir. 1995) (citation omitted).
When both parties move for summary judgment, the Court will analyze each motion
individually and on its own merits. See Buell Cabinet Co. v. Sudduth, 608 F.2d 431, 433 (10th
Cir. 1979) (explaining that the denial of one motion for summary judgment does not always
require the grant of a cross-motion for summary judgment). “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.” Brubach v. City of Albuquerque,
893 F. Supp. 2d 1216, 1223 (D.N.M. 2012) (citation omitted).
B.

Qualified Immunity

Because Defendants have raised qualified immunity as a defense, Mr. Alderete has the
burden of showing that: (1) the Defendants violated his Fourth Amendment rights; and (2) the
Fourth Amendment right was clearly established at the time Defendants engaged in the
challenged conduct. Malone v. Bd. of Cnty. Comm’rs for Cnty. of Dona Ana, et al., __ F. App’x
__, 2017 WL 3951706, *5–6 (10th Cir. Sept. 8, 2017) (unpublished). However, the Court views
the facts in the light most favorable to the non-moving party and resolves all factual disputes and
reasonable inferences in its favor. Henderson v. Glanz, 813 F.3d 938, 952 (10th Cir. 2015)
If a “plaintiff successfully carries his two-part burden,” “defendant bears the burden, as
an ordinary movant for summary judgment, of showing no material issues of fact remain that

5

would defeat the claim of qualified immunity.” Estate of Booker v. Gomez, 745 F.3d 405, 2014
WL 929157, at *3 (10th Cir. 2014) (citations omitted). Qualified immunity shields law
enforcement officials from liability for harm caused by reasonable mistakes, “protecting all but
the plainly incompetent or those who knowingly violate the law.” Herrera v. City of
Albuquerque, 589 F.3d 1064, 1070 (10th Cir. 2009) (quotation omitted).
Undisputed Material Facts (UMFs)7
On August 27, 2015, Officer Danius and Officer Montano each received a call from the
Albuquerque Police Department’s (APD’s) dispatch about a possible forgery at the Kirtland
Federal Credit Union involving a female (later identified as “Courtney Cowboy”) and a male
(later identified as Mr. Alderete), who had presented a personal check for verification at the
credit union. The banking term “verification” refers to looking up a bank account to see if there
are sufficient funds to cover a check. APD dispatch informed the officers that the pertinent
checking account had been closed some months before August 27, 2015 due to fraud.8
Upon arriving at the bank, Officer Danius found Mr. Alderete and Ms. “Cowboy,” who
matched the physical descriptions of the two individuals provided to Officer Danius by police
dispatch. Mr. Alderete and Ms. “Cowboy” appeared to be waiting in an area near bank teller

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Many of the UMFs are taken from the Court’s review of the video recordings as well as from other exhibits.
Mr. Alderete disputes at least some of the facts in this paragraph based on his contention that comments or notes
from APD dispatch informing police officers that the pertinent bank account was closed due to earlier fraudulent
activity on the account are hearsay and cannot be considered as admissible evidence in deciding a summary
judgment motion. Mr. Alderete’s Response at 5, ¶¶ 1, 2. The Court disagrees and finds that the information from
dispatch may be considered because it constitutes “the collective knowledge” of the officers and APD. See, e.g.,
United States v. Hinojos, 107 F.3d 765, 768 (10th Cir. 1997) (noting the Tenth Circuit Court’s previous holding,
“under the ‘fellow officer’ rule that law enforcement officers may pool their information and that reasonable
suspicion is to be determined on the basis of the collective knowledge of all the officers involved.”); United States v.
Madroza-Acosta, 221 F. App’x 756, 760 (10th Cir. 2007) (in assessing the information possessed by a lawenforcement officer at the time of a stop, the Court will apply the “fellow officer” rule, which requires the Court to
look at “the collective knowledge of all the officers involved[,]” including information that was conveyed “by an
informant to a police dispatcher)” (citation omitted); United States v. Coronado, 2017 WL 3397371, at *3 (D.N.M.
Aug. 8, 2017) (arresting officer may rely on information or instructions relayed to him by other officers in making a
seizure). .
8

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windows. Officer Danius asked Mr. Alderete to speak to him outside the bank. Officer Montano
escorted Ms. “Cowboy” outside the bank separately, where they waited while Officer Danius
interviewed Mr. Alderete. When Mr. Alderete and Officer Danius moved outside, Officer Danius
stated that he wished to perform a quick pat down search of Mr. Alderete before they talked. Mr.
Alderete was agreeable, telling Officer Danius “okay, yeah, go for it.” Danius Video #1.9 After
giving his driver’s license to Officer Danius, Mr. Alderete explained that he and Ms. “Cowboy”
had come to the credit union to verify a check because the people for whom they had performed
some automobile repair work had paid them $50 by cash and $350 by a check. Mr. Alderete
reported that a person named “Will” or “William” had given them the check for work done a
week earlier and that Mr. Alderete had driven his vehicle to the bank with Ms. “Cowboy” to
verify the check that they had unsuccessfully tried to verify by telephone. Mr. Alderete stated:
“we actually came here to get [the check] verified, to cash it because we did contract labor for
these people – I work on cars.” Ex. A–2 at 3. Mr. Alderete repeatedly told Officer Danius that he
and Ms. “Cowboy” came to the bank because they wanted to verify the check to see if it was
good, but Mr. Alderete also said that he and Ms. “Cowboy” hoped to cash it.10 See id. at 3 (lines

9

At the November 16 motion hearing, Mr. Alderete’s attorney argued that this initial pat down search was illegal.
See Alderete’s Motion at 8 and Supplement 1, No. 1. But, Mr. Alderete’s remarks to Officer Danius indicated
consent to the search.
10
Mr. Alderete disputes Defendants’ proposed UMF No. 6, which states that Mr. Alderete told Officer Danius that
he was at the bank to verify and cash the check. Mr. Alderete’s Response at 5, ¶ 6. But, Officer Danius’s Video #1
and the corresponding transcript confirm that both Mr. Alderete and Ms. “Cowboy” told the officers that they came
to the bank to verify and cash the check. Mr. Alderete’s concern that “in many of the videos there are moments
wherein the audio portion is turned off and then comes back on again, for example the first part of Exhibit A and B”
is unclear. See Mr. Alderete’s Response at 5 n.4. The Court did not observe moments where the audio portions of
the videos were turned off and on, and Defendants’ Exhibits A and B, to which Mr. Alderete referred, are affidavits
of Officer Danius and Officer Montano rather than video recordings. As best as the Court can determine, the
sequence of the three recordings is: first, Officer Danius Video #1 (ending with the handcuffing of Mr. Alderete and
Ms. “Cowboy”); second, Officer Montano’s Video (beginning with Officer Danius’s checking documentation on a
computer in his cruiser; showing both Mr. Alderete and Ms. “Cowboy” handcuffed outside the bank; revealing Ms.
Salazar-Madrid’s true identity; showing Officer Montano’s search of Ms. Salazar-Madrid’s purse); and third, Officer
Danius’s Video #2 (showing Mr. Alderete sitting handcuffed outside the bank and Officer Danius’s informing Mr.
Alderete of his Miranda rights). There is some minimal overlap between Officer Montano’s Video and Officer
Danius’s Video #2.

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1, 13). There is no evidence, however, that either Mr. Alderete or Ms. “Cowboy” actually handed
the check to a teller in an attempt to cash it.
Mr. Alderete remained outside with Ms. “Cowboy” and Officer Montano while Officer
Danius went inside the bank to speak to bank employees. Officer Danius first spoke to the
information desk representative, Susan Covnet, who told him that Mr. Alderete and Ms.
“Cowboy” came to her and that Mr. Alderete asked Ms. Covnet to verify the check. Ms.
“Cowboy” handed the check and her ID to Ms. Covnet (although Ms. Covnet may have obtained
Ms. “Cowboy’s” ID a short time later). When Ms. Covnet pulled up the account on her
computer, the banking notes from the bank’s security officer stated that the account was closed
and directed the employee to call APD right away. Ms. Covnet advised Mr. Alderete and Ms.
“Cowboy” that Ms. Covnet needed to speak to the bank tellers. After Ms. Covnet left Mr.
Alderete and Ms. “Cowboy,” Ms. Covnet went to the bank tellers and directed the tellers to call
APD, which they did. Ms. Covnet returned to Mr. Alderete and Ms. “Cowboy” and told them to
wait near the tellers’ windows for a bank teller. At one point, a male bank teller told Mr.
Alderete and Ms. “Cowboy” that the teller was busy with a “drive up window” client and would
get back to them. Ms. Covnet told Officer Danius that she was surprised that Mr. Alderete and
Ms. “Cowboy” waited as long as they did at the bank before the officers arrived.
The bank tellers had very little direct contact with either Mr. Alderete or Ms. “Cowboy.”
Neither the check nor Ms. “Cowboy’s” ID was returned to Ms. “Cowboy.” It appears from the
video recording that Ms. Covnet gave Officer Danius both the original check made out to Ms.
“Cowboy” and Ms. “Cowboy’s” driver’s license. At one point within the first 15 minutes of his
investigation, Officer Danius remarked to the bank employees that he was not sure if “the guy”

8

(Mr. Alderete) was actively involved in trying to cash the check or if was just “the girl” (Ms.
“Cowboy”).
Officer Danius obtained a printout of the bank’s security notes on the closed account.
Either the security notes or the information relayed to Officer Danius by APD dispatch, or both,
indicated that the account holder had previously closed his bank account after the owner’s
checkbook was stolen sometime earlier in the year. Some months before August 27, 2015, an
unidentified individual or individuals had presented a fake ID in an attempt to cash fraudulent
checks on the closed account and they were arrested and criminally charged. Mr. Alderete and
Ms. “Cowboy” were asking to verify a check made out on this same closed account.
After speaking to bank employees, Officer Danius returned outside and interviewed Ms.
“Cowboy,” while Officer Montano remained with Mr. Alderete outside the bank. Officer Danius
asked Ms. “Cowboy” about the driver’s license she had presented to Ms. Covnet, and Ms.
“Cowboy” volunteered that she knew there was a problem with her driver’s license and that there
was possibly some missing information on the license. But, she did not explain what the problem
was.
Ms. “Cowboy” told Officer Danius that the people for whom she and Mr. Alderete had
performed work had made out a check for $350 to her in the name of “Courtney Cowboy.” Like
Mr. Alderete, Ms. “Cowboy” told Officer Danius that she and Mr. Alderete had come to the bank
to verify the check, and similar to Mr. Alderete, she said that they ultimately wanted to cash it.
Id. at 24 (line 14). “So the point is to cash [the check].” Id. at 24–25. Ms. “Cowboy” knew very
few details about the person who had paid them for the work. She told Officer Danius that she
did not pay much attention to the people for whom they worked because she and Mr. Alderete
were struggling for money. Ms. “Cowboy” also did not seem to know her own home address or

9

whether she was living with Mr. Alderete, whom she told Officer Danius was her supposed
boyfriend. When asked why the check was made out in Ms. “Cowboy’s” name, she gave no
explanation other than to say she, too, performed some of the work.
After hearing Ms. “Cowboy’s” answers to questions, Officer Danius advised Ms.
“Cowboy” that there was an issue with the check and told her he was detaining her and placing
her in handcuffs while he continued his investigation. In explaining why he was handcuffing Ms.
“Cowboy,” Officer Danius stated he did not want Ms. “Cowboy” to “go anywhere” while he
continued the investigation. Officer Danius then told Mr. Alderete that he, too, was being
detained and placed in handcuffs. Officer Danius told Mr. Alderete “You’re not under arrest yet.
You’re being detained.” At that point, there were remarks by Officer Montano and by Mr.
Alderete to Officer Danius that Mr. Alderete was currently on probation. Mr. Alderete told
Officer Danius that his probation was not related to charges of fraud.
Officer Montano’s Video shows Officer Danius inside the police cruiser examining Ms.
“Cowboy’s” driver’s license and finding it suspicious looking. Mr. Alderete and Ms. “Cowboy”
continued to talk together even though they had been instructed not to converse. At one point,
Mr. Alderete called Ms. “Cowboy” by the name of Kayla in front of Officer Montano.11 Ms.
“Cowboy” was upset with Mr. Alderete for calling her Kayla. Officer Montano reported to
Officer Danius that Ms. “Cowboy’s” name was Kayla not Courtney. Ms. “Cowboy” finally,
albeit reluctantly, disclosed that her true full name was Kayla Salazar-Madrid, explaining that
she had a warrant out for her arrest. Officer Montano again told Ms. Salazar-Madrid that she was
11

Mr. Alderete disputes Defendants’ UMF No. 16 regarding Mr. Alderete having called Ms. Salazar-Madrid
“Kayla,” but this conversation between Mr. Alderete and Ms. Salazar-Madrid can be heard on Officer Montano’s
Video. In Mr. Alderete’s Supplement, counsel represented that she had “conducted a diligent search of all videos
and ha[d] not been able to locate where there is any evidence showing that Defendant Danius had any knowledge
that Plaintiff called Ms. Madrid Kayla ….” Mr. Alderete’s Supplement at 6, fact 22. But, the Montano Video clearly
shows the exchange between Mr. Alderete and “Kayla” and also contains footage where Officer Montano told
Officer Danius that Mr. Alderete called Ms. “Cowboy” by the name “Kayla.” Defendants’ UMF No. 16 is
undisputed.

10

being detained.12 Officer Montano began to inspect the contents of Ms. Salazar-Madrid’s purse
and eventually found multiple fake drivers’ licenses with various names, a high school diploma
in another name, several wallets, several social security cards, photocopies of a $50 bill and of a
$100 bill, some pills, and cash.
Mr. Alderete gave Officer Montano permission to open the passenger side door of Mr.
Alderete’s car and pull down the visor to get the vehicle registration and bill of sale. Officer
Danius’s Video #2 shows Mr. Alderete talking to Officer Danius and insisting that Mr. Alderete
has done nothing wrong. Officer Danius informed Mr. Alderete of his rights and again explained
that he was still just detaining Mr. Alderete. Officer Danius asked Mr. Alderete if he realized that
there was a warrant for Ms. Salazar-Madrid’s arrest and if Mr. Alderete knew she was using a
false name. Mr. Alderete admitted to knowing this but said he did not know she had a false ID.
Officer Danius continued to inform Mr. Alderete that he was being detained.13 Before
placing Mr. Alderete in the police cruiser, Officer Danius asked him if there was anything in his
pockets that might poke Officer Danius. Officer Danius’s Video #2 shows Officer Danius patting
down Mr. Alderete’s pockets; Mr. Alderete can be heard saying he had a crack pipe in his
pocket. Mr. Alderete told Officer Danius that his family lived nearby and asked if Officer Danius
would contact his family so that they could pick up Mr. Alderete’s vehicle. Officer Danius told
Mr. Alderete that he could not promise anything and that they would deal with that later. Mr.
Alderete challenges the lawfulness of the search and seizure of his person as well as the later
search of his vehicle.
12

At this point, Officer Montano states in his affidavit that Ms. Salazar-Madrid was arrested, after which Officer
Montano began inventorying her purse. Montano Aff. ¶¶ 4, 5. But while Officer Montano’s Video shows Officer
Montano searching Ms. Salazar-Madrid’s purse, none of the video recordings capture an officer telling Ms. SalazarMadrid that she was under arrest.
13
Mr. Alderete insists that there can be no dispute that he was arrested and not detained. Mr. Alderete’s Response at
7, ¶ 19. However, the footage from the three videotapes does not show the officers telling Mr. Alderete that he was
under arrest.

11

As already noted, the video recordings do not show the officers informing either Mr.
Alderete or Ms. Salazar-Madrid that they were under arrest. Officer Danius stated that he found a
fake New Mexico driver’s license in Mr. Alderete’s wallet with Mr. Alderete’s photo on it and
the name of “Michael Strickland.” Danius Aff. ¶ 11; Plaintiff’s Ex. 4 (Danius Video #4). Officer
Danius also noted: “Given that Mr. Alderete was under arrest, we prepared to tow the vehicle.”
Id. ¶ 13. During the tow inventory of Mr. Alderete’s car, Officer Montano found a loaded firearm
with a magazine and thirteen 40 cal. bullets between the driver’s side door and the driver’s seat.
Montano Aff. ¶ 6. Officer Montano reported that he could see the “large black handgun” by
looking in through the driver side window. Id. In addition, Officer Montano found a black tar
substance (later identified as heroin) and numerous syringes in Mr. Alderete’s car.
After Mr. Alderete was booked, the Prisoner Transport Center searched Mr. Alderete and
discovered a white powder on him that later was confirmed to be methamphetamine. Danius Aff.
¶ 15. Detective Baker, who was called to the scene for assistance, filed a Criminal Complaint
against Mr. Alderete, charging him with theft of identity, receipt of a stolen firearm, and felon in
possession of a firearm. On December 22, 2015, these charges against Mr. Alderete were
dismissed without prejudice, vis-à-vis a Nolle Prosequi.
Although not pertinent to deciding the present legal issues, the Court provides some
background information regarding Mr. Alderete’s criminal history. Before his August 27, 2015
arrest at the federal credit union, Mr. Alderete had entered into a plea agreement related to drug
charges in a state court proceeding, State v. Alderete, No. CR 2013-4193. The State had agreed
not to seek enhancement of Mr. Alderete’s sentence under the Habitual Offender Act if Mr.
Alderete abided by the conditions of release before his September 23, 2015 sentencing hearing.
Provided Mr. Alderete abided by these conditions, his period of incarceration was expected to be

12

between 0 and 3 years. However, based on the August 27, 2015 arrest, the sentencing court
allowed the State to withdraw from the terms of the plea agreement and to seek the habitual
offender enhancement. Mr. Alderete was sentenced to a term of imprisonment of four years. See
Plaintiff’s Ex. A (October 19, 2015 sentencing hearing transcript), attached to Mr. Alderete’s
Motion.
Mr. Alderete moved for a rehearing after obtaining a transcript of the lapel video
depicting Officer Danius’s interactions with credit union employees. Motion for Rehearing, Ex.
G to Plaintiff’s Response. In August 2016, after considering the transcript and after hearing
testimony, the State Court found there had been no evidence that Mr. Alderete ever presented the
check for payment. Thus, the State Court concluded that the officers did not have probable cause
to arrest Mr. Alderete. Order Granting Defendant’s Motion to Reconsider at 1, Ex. E to
Plaintiff’s Response. Accordingly, the State Court required that Mr. Alderete, who had then
served about one year in prison, be sentenced under the original plea agreement. He was then
released from prison.
Mr. Alderete claims that he suffered mental distress, anguish, fear, severe anxiety, and
emotional suffering, at least in part, because of his incarceration. Complaint ¶ 20.
Discussion
I.

Alleged Sham Affidavits of Police Officers

The Court first addresses Mr. Alderete’s contention that the Defendant police officers’
affidavits should not be considered because some of the affidavit statements of Officers Danius
and Montano conflict with footage in the lapel camera videos. Mr. Alderete’s Response at 2. Mr.
Alderete argues, for example, that “Officer Montano’s video Exhibit B at 3:08-4:00” shows that
“Ms. Salazar-Madrid is patted down and her purse is searched while she is outside and before
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she is placed in handcuffs[.]” Mr. Alderete claims this footage contradicts Officer Montano’s
Affidavit, which states, in part, “Following Ms. Salazar-Madrid’s arrest, I did an inventory of her
purse.” See Montano Aff. ¶ 5.
The Court carefully reviewed all of the videos. See, e.g., Officer Danius’s Video #1
(Defendants’ Ex. A-1, lasting 30 minutes); Officer Montano’s Video (Plaintiff’s Ex. A-C, lasting
30 minutes); Officer Danius’s Video #2 (Plaintiff’s Ex. H, lasting 8 minutes); Officer Danius’s
Video #3 (Plaintiff’s Ex. 3, lasting 1:30 minutes); and Officer Danius’s Video #4 (Plaintiff’s Ex.
4, lasting 5:49 minutes).14 The Court’s task is made difficult by Mr. Alderete’s reference to
Officer Montano’s Video as “Exhibit B at 3:08-4:00.” Exhibit B is a defense exhibit consisting
of a 2-page Affidavit of Officer Montano. The reference to 3:08-4:00 appears to reflect the time
that has elapsed in a video, but the Court’s review of Officer Montano’s Video (Plaintiff’s Ex.
A–C) does not show Ms. Salazar-Madrid being patted down at a time marker of 3:08-4:00.
However, in Officer Danius’s Video #1 (Defendants’ Ex. A-1), Ms. Salazar-Madrid is seen being
handcuffed by Officer Danius about 24 to 25 minutes into the recording. At about 11 to 12
minutes into Officer Montano’s Video (Plaintiff’s Ex. A-C), the footage shows Officer Montano
patting down Ms. Salazar-Madrid after she was already in handcuffs and before placing her in
Officer Montano’s police cruiser (to prevent the two suspects from conversing together). Officer
Montano began a search of Ms. Salazar-Madrid’s purse after she was in his police cruiser at
about 18 minutes into Officer Montano’s Video and then again at about 19 minutes into the same
video.
The video footage does not corroborate Mr. Alderete’s accusations of inconsistencies
between the video footage and Officer Montano’s Affidavit. Ms. Salazar-Madrid’s purse was
14

The Court also reviewed the two supplemental videos filed by Plaintiff after the hearing. But, these two videos
(Plaintiff’s Ex. 3 and 4 (Doc. No. 53), which last 4:33 minutes and 5:45 minutes respectively), supply little, if any,
material evidence.

14

searched after she was handcuffed, rather than before, as asserted by Mr. Alderete. And, it
simply is not clear from the videos at what point, Ms. Salazar-Madrid was placed under arrest.
Moreover, this argument by Mr. Alderete does not relate to the issues he is raising as to whether
the police officers had probable cause to seize him. See also Mr. Alderete’s Response at 3
(discussing again when Ms. Salazar-Madrid was arrested).
Mr. Alderete also argues that Officer Montano’s Video “Exhibit B at 27:20” shows he is
placed in handcuffs” and that “it is clear at this point that the Officers still do not have probable
cause that Plaintiff has committed any crime. Additionally, Plaintiff is never read his Miranda
rights after he is placed in handcuffs.” Mr. Alderete’s Response at 2–3. The video footage at
about 24 to 25 minutes into Officer Danius’s Video #1 (Defendants’ Ex. A-1) shows Officer
Danius placing Mr. Alderete in handcuffs and specifically advising him that he is being detained
rather than arrested. Officer Danius’s Video #2 (Plaintiff’s Ex. H) consists of footage taken after
Mr. Alderete is in handcuffs. Mr. Alderete is heard again trying to explain to Officer Danius that
he and Ms. Salazar-Madrid only came to the bank to verify the check. Officer Danius told Mr.
Alderete that he wanted to advise him of his Miranda rights because of Mr. Alderete’s continued
attempts to talk about the incident. At about 1 to 2 minutes into Officer Danius’s Video #2,
Officer Danius informs Mr. Alderete of his Miranda rights. At about 5 minutes into this same
video, Officer Danius again tells Mr. Alderete that he has not arrested him and that Mr. Alderete
is still being detained. Because Mr. Alderete was becoming more upset, Officer Danius decided
to place Mr. Alderete in his police cruiser, but before he does, Officer Danius pats down Mr.
Alderete, and finds a crack pipe in Mr. Alderete’s pockets.
Again, the sequence of events as recorded in the videos does not support Mr. Alderete’s
accusations of inconsistencies or contradictions. The Court does not find any evidence that the

15

police officers “elaborately compose[d] a story” that would benefit them nor does the Court find
itself forced to make credibility choices as argued by Mr. Alderete. See Mr. Alderete’s Response
at 2. Thus, the Court will consider all of the evidence, including the officers’ affidavits and the
video recordings.
II.

Fourth Amendment Seizure/Arrest Claim

A.

Parties’ Positions:

Mr. Alderete argues that the individual Defendant officers are not entitled to the defense
of qualified immunity because they seized and/or arrested him without probable cause. Mr.
Alderete’s Response at 14. More specifically, Mr. Alderete asserts that the relevant New Mexico
offense of forgery or identity theft is a specific intent crime and that the police officers did not
have any “specific facts that showed that [Mr. Alderete] had any specific intent to commit any
fraud….” Id. at 15. Mr. Alderete further contends that the law was clearly established at the time
of his arrest that a government official had to have probable cause as to the applicable mens rea
to make a valid arrest for a specific intent crime. Id. at 16.
Defendants counter that Officer Danius developed probable cause to arrest Mr. Alderete
for the following crimes: “fraud, forgery and/or identity theft; conspiracy to commit fraud,
forgery and/or identity theft; and/or attempt to commit fraud or forgery ….” Defendants’ Reply
at 11. Defendants state that “it is inexplicable” why Mr. Alderete’s Response addressed probable
cause to arrest in relation to only the crimes of forgery and identity theft. Id. Defendants further
assert that the probable cause inquiry is not limited to a particular offense, but only requires that
an officer had reason to believe that a crime, “any crime,” had been committed. Id. at 10.

16

B. Pertinent Fourth Amendment Legal Standard
A warrantless arrest does not violate the Fourth Amendment if an officer has probable
cause to believe that the arrestee committed a crime. Rife v. Okla. Dep’t of Pub. Safety, 854 F.3d
637, 645 (10th Cir.), cert. denied, 2017 WL 3731208 (Oct. 16, 2017). Stated differently, “a
warrantless arrest by a law officer is reasonable under the Fourth Amendment where there is
probable cause to believe that a criminal offense has been or is being committed.” Devenpeck v.
Alford, 543 U.S. 146, 152 (2004). “Probable cause exists if facts and circumstances within the
arresting officer’s knowledge and of which he or she has reasonably trustworthy information are
sufficient to lead a prudent person to believe that the arrestee has committed or is committing an
offense.” Olsen v. Layton Hills Mall, 312 F.3d 1304, 1312 (10th Cir. 2002) (citation omitted).
“[W]hen an officer has probable cause to believe a person committed even a minor crime in his
presence[,] … the ... arrest is constitutionally reasonable.” Virginia v. Moore, 553 U.S. 164, 171
(2008). A court examines “whether, given all of the circumstances, there is a probability or
substantial chance of criminal activity based on commonsense consideration.” United States v.
Coronado, 2017 WL 3397371, *3, No. CR 16-3076 JCH (D.N.M. Aug. 8, 2017) (unpublished).
Probable cause does not require certainty or proof beyond a reasonable doubt, but it
requires more than a mere suspicion of unlawful conduct. United States v. Martin, 613 F.3d
1295, 1302 (10th Cir. 2010). See Illinois v. Gates, 462 U.S. 213, 243 n.13 (Probable cause as its
name implies, “requires only a probability or substantial chance of criminal activity[.]”), reh’g
denied, 463 U.S. 1237 (1983). “‘Arguable probable cause’ exists when ‘the officers’ conclusions
rest on an objectively reasonable, even if mistaken, belief that probable cause exists.”
Stonecipher v. Valles, 759 F.3d 2 1134, 1141 (10th Cir.), cert. denied, 135 S.Ct. 881 (2014).

17

C. Analysis:
1. Timing of Arrest15
Before Officer Danius handcuffed Mr. Alderete (Officer Danius’s Video #1), Officer
Danius told Mr. Alderete several times that he was not yet being arrested and was merely being
detained while the police officers continued to investigate. But, by the time Officer Danius had
handcuffed Mr. Alderete, about 25 minutes into the investigation, Mr. Alderete was clearly not
free to leave the scene. At this point, the encounter closely resembled a traditional arrest. See
Morris v. Noe, 672 F.3d 1185, 1192 (a detention becomes an arrest if it continues for an
excessive time or closely resembles an arrest) (citation omitted). See also Cortez v. McCauley,
478 F.3d 1108, 1115–16 (10th Cir. 2007) (observing that the “use of firearms, handcuffs, and
other forceful techniques” generally enters the “realm of an arrest”.) Thus, for purposes of
deciding the summary judgment motions, the Court will consider Mr. Alderete to have been
arrested when Officer Danius handcuffed him16 and will next examine whether Officer Danius
had probable cause, at that time, to support the arrest.
2. Probable Cause to Arrest Mr. Alderete
Upon being dispatched to the bank, Officer Danius learned that a check had been
presented to the bank that was written on a closed account because of earlier fraudulent activity.
After arriving at the bank, Officer Danius carefully and thoroughly conducted an investigation
that included interviews of Mr. Alderete, Ms. Salazar-Madrid, and various bank employees.
15

Although Mr. Alderete identified his Fourth Amendment claim as an “Unreasonable Seizure,” Complaint (Count
I), he primarily argues that the warrantless arrest was unlawful. See, e.g., Mr. Alderete’s Motion at 10–13. In fact,
Mr. Alderete conceded that the “initial seizure was reasonable.” Id. at 8. Mr. Alderete asserted, however, that the
seizure “quickly became unlawful after Defendant Danius spoke to the bank employees.” Id. The Court disagrees. In
order to conduct a thorough investigation, Officer Danius not only had to interview the bank employees, he also had
to question Ms. Salazar-Madrid. The Court analyzes the claim as an unlawful warrantless arrest that was triggered
by the handcuffing of Mr. Alderete.
16
At the November 17 motion hearing, Plaintiff’s attorney stated that the time of the arrest was the moment when
Officer Danius handcuffed Mr. Alderete. Defense counsel did not dispute that the arrest occurred then but argued
that Officer Danius had probable cause even before he handcuffed Mr. Alderete.

18

Officer Danius confirmed that the pertinent check was written on a closed account consistent
with the information relayed to him by dispatch. Officer Danius examined the check made out to
Ms. “Cowboy,” the ID that she presented to the bank, and banking notes on the account in
question showing it previously had been closed due to fraudulent activity. The video recordings
show both police officers attempting to verify Ms. “Cowboy’s” identity on computers in the
police cruisers.
During the interviews of Mr. Alderete and of bank employees, Officer Danius learned
that while Mr. Alderete and Ms. Salazar-Madrid sought to first verify the check, they had driven
to the bank together in Mr. Alderete’s car with the intention to cash the check. Although both
Mr. Alderete and Ms. Salazar-Madrid approached the bank representative about verification of
the check made out to Ms. “Cowboy,” Mr. Alderete did the talking and requested verification of
the check.
Officer Danius’s interview of Ms. Salazar-Madrid elicited suspicious information. Ms.
Salazar-Madrid first spoke about some vague problem with the MVD and her driver’s license (in
the name of “Courtney Cowboy”), which she was unable to clearly explain. She did not know
much about the work on a car that she supposedly helped Mr. Alderete perform. Even though it
appeared that Mr. Alderete had done most of the work on the car, Ms. Salazar-Madrid was
unable to explain to Officer Danius why the check in her possession, that had been issued in
partial payment for the work, was made out in her supposed name. She did not know the names
of the people for whom they did work on the car. She was uncertain of where she lived or if she
lived with Mr. Alderete and whether he was even her boyfriend. Ms. Salazar-Madrid’s failure to
respond appropriately to Officer Danius’s questions lends support for Officer Danius’s
reasonable belief that criminal activity was afoot, especially here where Officer Danius faced

19

suspicious conduct concerning a checking account that had been closed earlier due to fraudulent
activity. See, e.g., Painter v. City of Albuquerque, 383 F. App’x 795, 799 (10th Cir. 2010).
Officer Danius learned all of these facts during his investigation before handcuffing and arresting
Mr. Alderete.
Moreover, this is not a case where Mr. Alderete’s conduct appears “inherently
innocuous” or where his actions had “plausible innocent explanations.” See Plaintiff’s Response
at 15. Non-involvement in criminal activity might have been a plausible inference if Mr.
Alderete had merely driven Ms. Salazar-Madrid to the bank, dropped her off, and let her go into
the bank alone for verification of a check made out in her supposed name. However, before the
arrest, the undisputed facts reveal that Mr. Alderete took charge by entering the bank and by
asking for verification of a check that was not even made out in his name. He accompanied Ms.
Salazar-Madrid at every step of the scheme. The Court is unpersuaded by Plaintiff’s counsel’s
argument that probable cause for the arrest could not have existed because Officer Danius,
himself, questioned whether Mr. Alderete was actively involved. See, e.g., Mr. Alderete’s
Motion at 11. Plaintiff’s counsel repeatedly cited video footage where Officer Danius, midway in
his investigation, stated to a bank representative that he could not tell if Mr. Alderete or just Ms.
Salazar-Madrid was involved. But, by the time he handcuffed Mr. Alderete, Officer Danius had
learned that Mr. Alderete had been the one who asked that the check be verified, and Officer
Danius had interviewed Ms. Salazar-Madrid whose answers to questions raised additional
suspicions.
In light of all the facts within Officer Danius’s knowledge and of which he had
reasonably trustworthy information, the Court concludes that Officer Danius had probable cause
to believe that Mr. Alderete intended to act fraudulently when he attempted to verify the check in

20

order to cash it. In other words, Officer Danius’s belief that Mr. Alderete was engaging in
criminal conduct was reasonable. Here, common sense and the facts known by Officer Danius
were sufficient to warrant a person of reasonable caution to believe that Mr. Alderete was
engaged in a criminal offense involving fraud and/or that Mr. Alderete intended to commit a
fraud. Thus, the facts known to Officer Danius meet the probable cause standard of “probability
or substantial chance of criminal activity,” and Mr. Alderete’s arrest did not violate the Fourth
Amendment.
Therefore, Defendants are entitled to qualified immunity on the Count I Fourth
Amendment Claim, which will be dismissed with prejudice.17 In addition, having found that
Officer Danius had probable cause to arrest Mr. Alderete, the Court will grant Defendants’
Motion for Summary Judgment on the state-law claims of false arrest, false imprisonment, and
assault and battery18 against the Defendant Officers. Accordingly, the Count VI state-law claims
of false arrest, false imprisonment, assault, and battery will be dismissed with prejudice.
Similarly, to the extent that Plaintiff’s claim of negligent hiring, training, supervision, and
retention against the City is premised on the claims of alleged false arrest, false imprisonment,
assault, and battery, the Count III negligent hiring, training, supervision, and retention claim will
be dismissed with prejudice.

17

The Court has the discretion to decide either of the two prongs of the qualified immunity analysis first. Courtney
v. Okla. ex rel. Dep’t of Pub. Safety, 722 F.3d 1216, 1222 (10th Cir. 2013). Having decided that Mr. Alderete did not
satisfy his burden of showing a violation of a constitutional right, the Court does not reach the second prong of the
test.
18
Mr. Alderete alleges that “Defendants’ illegal detention and arrest of Plaintiff” constitute false imprisonment,
assault, and battery. Complaint ¶ 79. There are no other allegations to support the claims that Defendants falsely
imprisoned, assaulted, and/or battered Mr. Alderete. See, e.g., Mr. Alderete’s Response at 22–23 (arguing only that
Plaintiff’s state tort claims survive if Plaintiff was falsely seized and/or arrested). However, in Mr. Alderete’s
Supplement, ¶ 21, he asserts that after he was arrested, he was in “very tight handcuffs now for close to twenty (20)
minutes now….” Notwithstanding this assertion, Plaintiff does not argue that the use of tight handcuffs constituted a
battery. Moreover, the two supplemental video recordings (Plaintiff’s Exhs. 3 and 4) both show Officer Danius
loosening the handcuffs after Mr. Alderete’s tells Officer Danius that they are too tight. If the Court has
misconstrued Mr. Alderete’s argument regarding his state-law claims, he may file an appropriate motion by
December 19, 2017.

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III.

Fourth Amendment Vehicle Search Claim

Mr. Alderete asserts that the search of his vehicle was unlawful because Defendants did
not have probable cause to arrest him. Mr. Alderete’s Motion at 13. See Complaint ¶¶ 37–39
(alleging that because Officer Danius had no probable cause to arrest Mr. Alderete, the
subsequent search of the vehicle was unreasonable). Mr. Alderete also takes that the position that
while exigent circumstances might justify a warrantless search of a vehicle, Defendants have not
proven an exigency. Mr. Alderete’s Motion at 13–14.
In a two-sentence argument with citations to New Mexico state court cases, Defendants
contend that there was probable cause for the arrest and that inventorying the contents of a
vehicle before towing is a well-recognized exception to the warrant requirement. Defendants’
Motion at 19. Defendants’ Reply does not address the alleged unlawful search of the vehicle.19
But, in Defendants’ Response to Mr. Alderete’s Motion, Defendants maintain that Mr. Alderete
conceded that a vehicle inventory before towing is lawful if probable cause existed for the arrest.
“Given Officer Danius’s probable cause to arrest Plaintiff, the inventory of Plaintiff’s car for
purposes of having it towed was lawful, as acknowledged by Plaintiff. [See Doc. 36, pg 13 (“An
officer may search a vehicle [] if he has probable cause[.]”)].” Defendants’ Response at 17.
Defendants, however, did not respond to Mr. Alderete’s position that an exigency must exist to
justify a warrantless search of a vehicle.
Because the Court found the briefing unhelpful on the unlawful vehicle search claim, the
Court wrote counsel before the November 16 hearing, asking counsel to address a number of
questions. At the hearing, Mr. Alderete’s attorney clarified that Plaintiff was not conceding that
the vehicle search was reasonable in the event the Court concluded that Officer Danius had

19

In his Response to Defendants’ Motion, Mr. Alderete similarly gave short shrift to the alleged unlawful vehicle
search claim other than to summarily dispute that the vehicle search was lawful. Plaintiff’s Response at 8, No. 25.

22

probable cause for the arrest. Counsel for Plaintiff argued Defendants had no basis to conduct an
inventory search of Mr. Alderete’s car and that the police did not search the car in accordance
with standard police procedures.
At the hearing, both attorneys supplied the Court with copies of court decisions they
believed pertinent to the vehicle search claim. Yet, the parties had not relied on any of these
cases in the summary judgment briefing. Defense counsel gave the Court a copy of APD’s
Towing and Wrecker Services policy and rules (“Towing Policy”) that became effective
September 4, 2002 and asserted that Defendants had properly followed procedure because page 2
of the Towing Policy requires a vehicle to be towed when the car is on someone’s property.
The Towing Policy states that the towing of vehicles is authorized “when necessary as a
matter of public safety, to protect property, to preserve evidence, and to remove abandoned
vehicles from city streets and property.” Towing Policy at 1, 2–48. The Towing Policy also
provides that a vehicle “will be towed when” a driver has been arrested, “or when the vehicle
cannot be released to a responsible party.” Id. at 1, 2–48–2(A). It is possible that the Court
misheard defense counsel’s reference to page 2 of the Towing Policy, but the Court did not
locate a provision on page 2 of the Towing Policy stating that a vehicle must be towed when on
someone’s property. Page 2 of the Towing Policy states that the officer authorizing the towing of
a vehicle “will document the justification for the towing of the vehicle.” Id. at 2, 2–48–3(B).
The Court reviewed the affidavits of Officer Danius and of Officer Montano, but neither
officer stated that he authorized the vehicle search nor did either officer document the reasons
that justified the vehicle search. Officer Danius averred that “[g]iven Mr. Alderete was under
arrest, we prepared to tow the vehicle[,]” and that Office rMontano conducted a tow inventory.

23

Danius Aff. ¶¶ 13, 14 (Doc. No. 23–1). Officer Montano affirmed he did an inventory search of
the vehicle after Mr. Alderete’s arrest. Montano Aff. ¶ 6.
Moreover, at the hearing, Mr. Alderete’s attorney stated she did not concede that the
Towing Policy provided by defense counsel was the applicable policy in August 2015 when Mr.
Alderete was arrested. Counsel were to confer after the hearing to determine which towing
policy was in effect in August 2015. But, in submissions to the Court after the hearing, no one
mentioned the applicable towing policy, and the Court does not know if the 2002 Towing Policy
was in effect when Mr. Alderete was arrested.
In his Supplemental briefing, Mr. Alderete provided several citations to the video
recordings where he asked Officer Danius if his family would be allowed to come and get Mr.
Alderete’s car. Mr. Alderete’s Supplement at 6, Nos. 1–4. Even assuming the 2002 Towing
Policy applies, it is not clear whether the language of that policy authorizes or requires a vehicle
to be towed when the vehicle can be released to a responsible party. See Towing Policy at 1, 2–
48–2(A).
Based on the argument and evidence presented, the Court does not know who authorized
the search of Mr. Alderete’s vehicle, what reasons justified the search, or if the police complied
with standardized policies and procedures that were in effect in August 2015. As a result, there
are genuine disputes of material fact with respect to whether the vehicle search was a violation of
Mr. Alderete’s Fourth Amendment rights. Because the facts are either in dispute or unclear, and
because the parties did not provide adequate briefing of the pertinent legal standards, the Court
will require both parties to file supplemental briefs, with evidence, on the Count II Fourth
Amendment claim as to the vehicle search. The briefs should not exceed ten pages and must be

24

filed no later than December 19, 2017. After reviewing the briefs and evidence, the Court will
resolve the cross-motions on the Fourth Amendment unlawful vehicle search claim.
IV.

Malicious Prosecution Claim

At the November 16 hearing, Plaintiff’s attorney conceded that the malicious prosecution
claim would fail if the Court determined that Officer Danius had probable cause to arrest Mr.
Alderete. Therefore, based on the Court’s conclusion that Officer Danius had probable cause to
arrest Mr. Alderete, the claim of malicious prosecution necessarily fails and the Court will
dismiss with prejudice Plaintiff’s Count IV- Malicious Prosecution Claim.
IT IS THEREFORE ORDERED that:
(1) DEFENDANTS CITY OF ALBUQUERQUE, IGNAS DANIUS, DAVID
MONTANO AND CHRISTIAN BAKER’S MOTION FOR SUMMARY
JUDGMENT (Doc. No. 23) is GRANTED in part and denied in part, with the
following results:
a. Plaintiff’s Count I Fourth Amendment Claim (Unreasonable Seizure and/or
Unlawful Arrest) will be dismissed with prejudice;
b. Plaintiff’s Count III Negligent Hiring, Training, Supervision, and Retention
Claim as it relates to the Count I Fourth Amendment Claim will be dismissed
with prejudice;
c. Plaintiff’s Count IV Malicious Prosecution Claim will be dismissed with
prejudice;
d. Plaintiff’s Count V Respondeat Superior Claim as it relates to the Count I
Fourth Amendment Claim will be dismissed with prejudice; and

25

e. Plaintiff’s Count VI State Tort Claims of False Arrest, False Imprisonment,
Assault, and Battery will be dismissed with prejudice;
(2) Defendants and Plaintiff must file supplemental briefs and evidence on the Count II
Fourth Amendment Claim (Search of Vehicle) no later than December 19, 2017, after
which the Court will resolve the cross-motions for summary judgment on this claim
and the related state law claims of trespass, .negligent hiring, training, supervision,
and retention, and respondeat superior; and
(3) PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM
OF LAW IN SUPPORT (Doc. No. 36) is DENIED, in part, consistent with this
opinion.
________________________________________
SENIOR UNITED STATES DISTRICT JUDGE

26