Armijo et al v. Hayes et al

Filing 102

Proposed Findings and Recommended Disposition by Magistrate Judge Carmen E. Garza. The Court RECOMMENDS that 98 Defendant Griego's Motion for Summary Judgment on the Basis of Qualified Immunity be GRANTED as outlined in the Proposed Findings a nd Recommended Disposition. Objections to PFRD due by 1/18/2017. Add 3 days to the deadline if service is by mailing it to the person's last known address (or means described in Fed. R. Civ. P. 5(b)(2)(D) and (F)); if service is by electronic means, no additional days are added. (Fed. R. Civ. P. 6(d); Fed. R. Crim. P. 45(c).) (jrt) Modified to correct text per Chambers on 1/4/2017 (bc).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
SIMON ARMIJO,
Plaintiff,
v.

CV No. 2:14-00362 JB/CG

RONY D. HAYES, et al.,
Defendants.
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER is before the Court on Defendant Robert Griego’s Motion for
Summary Judgment on the Basis of Qualified Immunity (the “Motion), (Doc. 98), filed
November 1, 2016; Plaintiff’s Opposition and Response to Defendant Griego’s Motion
for Summary Judgment on the Basis of Qualified Immunity (the “Response”), (Doc. 99),
filed November 15, 2016; and Defendant Griego’s Reply in Support of Motion for
Summary Judgment on the Basis of Qualified Immunity (the “Reply”), (Doc. 100), filed
December 2, 2016. United States District Judge James O. Browning referred this case
to Magistrate Judge Carmen E. Garza to perform legal analysis and recommend an
ultimate disposition. (Doc. 4). Having considered the parties’ filings and the relevant law,
the Court RECOMMENDS that Defendant Griego’s Motion be GRANTED and all claims
against him be DISMISSED WITH PREJUDICE.
I.

Background
This case arises out of Defendants’ search and seizure of Plaintiff’s property. On

April 17, 2012, Defendant Rony Hays executed a search warrant on Plaintiff’s property.
(Doc. 2 at 3). The search warrant authorized Defendant Hays to search for evidence of
trafficking of a controlled substance, namely marijuana. (Doc. 43-1 at 1-3, 5). Defendant

Hays seized numerous items under the warrant, including approximately 22 ounces of
marijuana. (Doc. 43-2 at 7-8).
While executing the search warrant, Defendant Hays found several deer heads,
various deer parts, and a deer carcass in a shed. (Doc. 43-2 at 10). Defendant Hays
observed that several of the deer heads had carcass tags on them, but some did not,
and he did not see any carcass tag on the deer carcass. (Doc. 43-2 at 10). Suspicious
about the various deer parts and their lack of identifying paperwork, Defendant Hays
contacted Defendant Robert Griego, an officer employed by the New Mexico
Department of Game and Fish (“NMDGF”).
Defendant Griego arrived at Plaintiff’s property twenty minutes after being called.
(Doc. 43-2 at 11). When Defendant Griego arrived at the property, Plaintiff told
Defendant Griego that he needed his own search warrant to search Plaintiff’s property.
(Doc. 2 at 7; Doc. 98 at 7).1 Defendant Griego ignored Plaintiff and continued onto the
property to join the officers at the shed. (Doc. 2 at 7; Doc. 98 at 7). Defendant Griego
states he saw 15 to 20 deer heads on the floor of the shed, along with a deer carcass
that was sawn in half. (Doc. 43-2 at 11). When asked about all the deer heads, Plaintiff
told Defendant Griego he was a good hunter. (Doc. 43-2 at 11). Defendant Griego
asked Plaintiff if he kept deer meat as well, to which Plaintiff responded that he did and
that Defendant Griego could look at it if he wanted to. (Doc. 43-2 at 11).
When asked about the carcass, Plaintiff represented that one of the tagged deer
heads belonged to the carcass and that he killed said deer in November, 2011, on a
private ranch. (Doc. 43-2 at 11). The tag on the identified deer head indicated that the
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Doc. 2 is Plaintiff’s Civil Rights Complaint Pursuant to 42 U.S.C. § 1983 (the “Complaint”). Plaintiff’s
Complaint is verified, (Doc. 2 at 6), therefore it may be considered as an affidavit for purposes of
summary judgment. Conway v. Smith, 853 F.2d 789, 792 (10th Cir. 1988).

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deer was killed on November 26 or 27, 2011. (Doc. 43-2 at 11). Defendant Griego
looked up 2011 deer hunt dates and noted that the only dates Plaintiff could have
lawfully killed the deer were November 5-9 or 12-16, 2011. (Doc. 43-2 at 11). Defendant
Griego then began walking to the front of the property, where Plaintiff again told him he
needed a warrant; Defendant Griego responded he would obtain a warrant immediately.
(Doc. 43-2 at 11).
Based on his observations and his conversation with Plaintiff, Defendant Griego
applied for a warrant, stating he had reason to believe that Plaintiff was concealing: (1)
unlawfully possessed Mule Deer heads; (2) unlawfully possessed game meat; (3)
photographs of unlawfully killed game animals; and (4) instruments used to process big
game. (Doc. 43-2 at 10). Defendant Griego swore that, based on his experience: (1)
individuals who illegally kill big game keep the heads and antlers; (2) these individuals
often reuse game tags to make their kills appear legitimate; (3) game blood and hair do
not last long outdoors; and (4) that individuals who kill big game illegally photograph
their kills in the field. (Doc. 43-2 at 11). Defendant Griego obtained and executed a
search warrant the same day, seizing numerous deer heads, parts, and meat, along
with elk meat, a golden eagle carcass, and red-tailed hawk feathers. (Doc. 43-2 at 8,
13). Plaintiff was later arrested and charged by the United States Fish and Wildlife
Service for his possession of the golden eagle carcass and red-tailed hawk feathers.
(Doc. 43-3 at 3).
Following the searches and seizures, Plaintiff filed a Civil Rights Complaint
Pursuant to 42 U.S.C. § 1983 (the “Complaint”). Plaintiff raised several claims, all of
which were previously dismissed except one currently before the Court. (See Docs. 76,

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77). Plaintiff’s only remaining claim is that Defendant Griego violated his Fourth
Amendment rights. (Doc. 2 at 7-9). The Court previously recommended denying
summary judgment in Defendant Griego’s favor. (Doc. 71 at 27-31). The Court found
that there was a genuine dispute of material fact as to whether Defendant Griego
searched Plaintiff’s property without a warrant or Plaintiff’s consent, (Doc. 71 at 29-30),
and that the law was clearly established that searches violate the Fourth Amendment
when conducted without a warrant or an exception to the warrant requirement. (Doc. 71
at 30-31).
Defendant Griego then filed the instant Motion. Defendant Griego concedes for
purposes of the Motion that he entered Plaintiff’s property without Plaintiff’s consent and
argues he is entitled to judgment as a matter of law regardless. First, Defendant Griego
argues that his conduct before obtaining a warrant was not a search within the meaning
of the Fourth Amendment because his conduct falls within the plain-view exception to
the warrant requirement. (Doc. 98 at 14-16). Defendant Griego asserts that he was
lawfully present on Plaintiff’s property because he was also authorized under state law
to execute the original search warrant, and he only observed evidence in plain view.
(Doc. 98 at 14-16). Even if his conduct did constitute a search, Defendant Griego
contends the search did not violate the Fourth Amendment, as it was authorized by the
warrant obtained by Officer Hays. (Doc. 98 at 17-19). Finally, even assuming Defendant
Griego’s conduct did violate Plaintiff’s Fourth Amendment rights, Defendant Griego
argues that he is entitled to qualified immunity. (Doc. 98 at 20). As for his conduct after
obtaining the warrant, Defendant Griego argues that he is entitled to qualified immunity
because he acted pursuant to a facially valid warrant. (Doc. 98 at 20-25).

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Plaintiff timely responded to Defendant Griego’s Motion. (Doc. 99). Although
Plaintiff disputes a number of facts as set forth in the Motion and described above,
Plaintiff does not refer to affidavits or other portions of the record. (Doc. 99 at 3-9). For
instance, Plaintiff states he does not recall any conversation with Defendant Griego, but
Plaintiff does not attach an affidavit denying the conversation occurred. (Doc. 99 at 8).
Plaintiff reiterates his argument that Defendant Griego’s presence and actions before
obtaining a warrant violated the Fourth Amendment. (Doc. 99 at 4-5). Plaintiff also
reiterates his previous allegations that Defendant Griego falsified information in order to
obtain a search warrant. (Doc. 99 at 5-6). Plaintiff argues that the instant case is nearly
identical to State v. Moran, 2008-NMCA-160, 145 N.M. 297, 197 P.3d 1079, where the
New Mexico Court of Appeals suppressed evidence of seized game animal parts. In
Moran, the Court of Appeals held that an NMDGF officer violated the Fourth
Amendment by searching a residence and seizing game animal parts without a warrant
or the homeowner’s consent. Moran, 2008-NMCA-160, ¶¶ 3, 13-14. Thus, Plaintiff
argues, Moran clearly established his Fourth Amendment right, and Defendant Griego is
not entitled to summary judgment in his favor. (Doc. 99 at 12).
II.

Analysis
a. Legal Standards for Summary Judgment and Qualified Immunity.
The Court must grant summary judgment if “the movant shows that there is no

genuine dispute as to any material fact and that the movant is entitled to judgment as a
matter of law.” FED. R. CIV. P. 56(a). The movant bears the burden of making a prima
facie demonstration that there is no genuine issue of material fact. Adler v. Wal-Mart
Stores, Inc., 144 F.3d 664, 670-71 (10th Cir. 1998) (citing Celotex Corp. v. Catrett, 477

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U.S. 317, 323 (1986)). A fact is material if it might affect the outcome of the case under
the governing substantive law. Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248
(1986). An issue is genuine if a reasonable jury could resolve the issue in favor of the
nonmoving party based on the evidence in the record. Id. In order to create a genuine
issue of fact, the nonmoving party must provide admissible evidence, which the Court
views in the light most favorable to him. Panis v. Mission Hills Bank, N.A., 60 F.3d 1486,
1490 (10th Cir. 1995). Admissible evidence includes reference to affidavits, depositions,
or specific exhibits. See Adler, 144 F.3d at 671; FED. R. CIV. P. 56(c).
When a defendant has moved for summary judgment on the basis of qualified
immunity, the inquiries are: (1) whether the plaintiff has demonstrated a violation of a
constitutional right; and (2) whether that right was clearly established at the time the
right was allegedly violated. Pearson v. Callahan, 555 U.S. 223, 232-33 (2009). The
Court may exercise its discretion in deciding which of the two inquiries to address first.
Id. at 236.
A right is clearly established if it is “sufficiently clear that every reasonable official
would have understood that what he is doing violates that right.” Reichle v. Howards,
123 S. Ct. 2088, 2093 (2012). A right may be clearly established by either “a Supreme
Court or Tenth Circuit decision on point” or the “weight of authority from other courts.”
Medina v. City of Denver, 960 F.2d 1493, 1498 (10th Cir. 1992). A plaintiff need not
provide a case “directly on point, but existing precedent must have placed the statutory
or constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)
(citation omitted).

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The Supreme Court has repeatedly cautioned against defining a clearly
established right “at a high level of generality.” Id. at 142. “The dispositive question is
‘whether the violative nature of the particular conduct is clearly established.’” Mullenix v.
Luna, 136 S. Ct. 305, 308 (2015) (quoting al-Kidd, 563 U.S. at 742) (emphasis in
original). “[S]pecificity is especially important” in cases implicating the Fourth
Amendment, as “‘[i]t is sometimes difficult for an officer to determine how the relevant
legal doctrine . . . will apply to the factual situation the officer confronts.’” Mullenix, 136
S. Ct. at 308 (quoting Saucier v. Katz, 533 U.S. 194, 205 (2001)).
b. Whether Defendant Griego is entitled to Summary Judgment
regarding his pre-warrant conduct
In his Response, Plaintiff responds to and disputes a number of facts as relayed
in Defendant Griego’s Motion. (Doc. 99 at 3-9). However, Plaintiff does not reference
affidavits, depositions, or other portions of the record in accordance with Federal Rule of
Civil Procedure 56(c). (See Doc. 99 at 3-9). Rather, Plaintiff cites exhibits that he did not
attach to his Response. (Doc. 99 at 5, 8). Because Plaintiff has not supported his
assertions of fact with admissible evidence, the Court finds that there is no genuine
issue of material fact.
Regarding whether Defendant Griego is entitled to judgment as a matter of law
on qualified immunity grounds, the Court will analyze whether Plaintiff’s rights were
clearly established first. As a general proposition, it is clearly established that
warrantless searches and seizures violate the Fourth Amendment. See United States v.
Davis, 290 F.3d 1239, 1242 (10th Cir. 2002) (“With few exceptions, the question
whether a warrantless search of a home is reasonable and hence constitutional must be
answered no.”) (citations omitted). However, Plaintiff has not provided, nor has the
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Court been able to find, any Tenth Circuit or Supreme Court case that concludes
Defendant Griego’s particular conduct violates the Fourth Amendment. The Supreme
Court has held “it is a violation of the Fourth Amendment for police to bring members of
the media or other third parties into a home during the execution of a warrant when the
presence of the third parties in the home was not in aid of the execution of the warrant.”
Wilson v. Layne, 526 U.S. 603, 614 (1999). However, in Wilson, police officers invited a
media crew to film the execution of an arrest warrant. Id. at 605-609. That scenario is
distinct from the circumstances here, where a state police officer requested the
assistance of another state police officer in identifying suspicious items found during the
execution of a search warrant. Thus, the “violative nature” of Defendant Griego’s
“particular conduct” has not been clearly established by Supreme Court or Tenth Circuit
precedent.
Plaintiff cites State v. Moran, 2008-NMCA-160, in support of his argument that
Defendant Griego violated his clearly established constitutional rights. (Doc. 99 at 9-12).
In Moran, sheriffs executed a search warrant of a home looking for evidence of criminal
sexual penetration. Moran, 2008-NMCA-160, ¶ 3. During the search, a sheriff became
suspicious about animal skulls and antlers on display in and around the home. Id.
Eventually, the sheriff called an NMDGF officer to the scene, and the officer searched
the home and seized a number of game animal items without a warrant. Id. In the
resulting criminal case, the homeowner moved to suppress all evidence the NMDGF
officer seized, arguing the officer’s warrantless search and seizure violated the Fourth
Amendment. Id., ¶ 4. The New Mexico Court of Appeals agreed, holding that the
NMDGF officer violated the homeowner’s Fourth Amendment rights by entering the

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home, searching the home, and seizing property, all without a warrant. Id., ¶¶ 9, 13-14.
Specifically, the Court of Appeals held the NMDGF officer was not legally present in the
home even after he was invited onto the property by the sheriff. Id., ¶¶ 12-14.
Indeed, Moran is factually similar to this case. In both circumstances, police
officers executed a search warrant looking for evidence of a particular crime. In the
course of their searches, the officers executing the warrant became suspicious about
game animal parts and called an NMDGF officer for assistance. Both here and in
Moran, the NMDGF officer entered the property under the authority of a search warrant
that did not authorize officers to search and seize evidence of crimes related to game
animal parts. The only potentially material difference is that Defendant Griego obtained
a warrant before seizing Plaintiff’s property.
Although Moran is factually similar to this case, Moran does not establish that
Defendant Griego violated a clearly established right. As stated, one way to show a
clearly established right is to provide a Supreme Court or Tenth Circuit Court of Appeals
opinion on point. Medina, 960 F.2d at 1498. The New Mexico Court of Appeals is
neither the Tenth Circuit nor the Supreme Court, so its decisions do not clearly establish
a right on their own. The second way to demonstrate a clearly established right is
through the weight of authority from other courts. Id. However, one state court of
appeals decision does not establish the weight of authority from other courts. See
Stewart v. Donges, 915 F.2d 572, 582 (10th Cir. 1990) (finding clearly established right
through the weight of authority of six different circuit courts of appeals’ decisions).
Despite the factual similarity to Moran, it is not “beyond debate” that Defendant Griego
violated Plaintiff’s Fourth Amendment rights. al-Kidd, 563 U.S. at 741. Because Plaintiff

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has failed to show that Defendant Griego violated a clearly established right, Defendant
Griego is entitled to qualified immunity regarding his initial conduct on Plaintiff’s
property.
c. Whether Defendant Griego is entitled to Summary Judgment
regarding his post-warrant conduct.
Defendant Griego argues he is entitled to summary judgment on any claims
arising from his conduct following acquiring a warrant because the warrant was facially
valid. (Doc. 98 at 20). Further, Defendant Griego argues that even if his subsequent
search and seizure violated Plaintiff’s constitutional rights, Defendant Griego is still
entitled to qualified immunity. (Doc. 98 at 21, 25). Liberally construed, Plaintiff responds
that Defendant Griego’s search warrant was invalid because Defendant Griego falsified
information to obtain the warrant.2 (Doc. 99 at 6). Plaintiff bases this argument on two
premises: Plaintiff has not been convicted of illegally possessing deer parts, and the
search did not result in the seizure of some items named in the search warrant. (Doc.
99 at 6).
Plaintiff’s argument mirrors his previous argument regarding Defendant Hays’
search warrant, which the Court rejected. (Doc. 71 at 15-17). Here, as before, Plaintiff
does not dispute that Defendant Griego’s warrant contains sufficient information to
establish probable cause; rather, Plaintiff alleges that Defendant Griego lied to secure
the warrant. (See Docs. 71 at 15; 99 at 6). As explained previously, Plaintiff must “make
a substantial showing of deliberate falsehood or reckless disregard for the truth, such
that would be needed to challenge the presumed validity of an affidavit supporting a
search warrant.” Snell v. Tunnell, 920 F.2d 673, 698 (10th Cir. 1990). Plaintiff must
2

A pro se litigant’s “pleadings are to be construed liberally and held to a less stringent standard than
formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

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make “a specific affirmative showing of dishonesty by the applicant, i.e. knowledge of
[Plaintiff’s] innocence or that a witness was lying.” Id.
First, Plaintiff argues Defendant Griego must have falsified facts because Plaintiff
has not been convicted of illegally possessing deer heads or deer meat. (Doc. 99 at 6).
Plaintiff’s argument does not logically follow; just because he has not been convicted of
illegal possession of deer heads or meat does not mean Defendant Griego was
deliberately dishonest or acted with reckless disregard for the truth when he applied to
search for illegally held deer heads and meat. Plaintiff must make a substantial showing
that Defendant Griego was deliberately dishonest in swearing he believed Plaintiff was
concealing unlawfully possessed deer heads and meat. See Snell, 920 F.2d at 698.
Plaintiff has yet to do so.
Second, Plaintiff contends that Defendant Griego falsified facts because the
search did not result in the seizure of photographs of unlawful kills or “implements used
to process big game.” (Doc. 99 at 6). Plaintiff’s argument appears to be based on a
misapprehension of what Defendant Griego swore to in his affidavit. Defendant Griego
did not swear that Plaintiff was concealing photographs of unlawful kills or implements
used in processing big game. Rather, Defendant Griego swore that he “ha[d] reason to
believe” that Plaintiff was concealing the photographs and implements. (Doc. 43-2 at
10). In support of that belief, Defendant Griego swore that, in his experience, it is
common for poachers to keep heads and antlers, which Plaintiff did, and that it is
common for such individuals to also keep photographs of their kills. (Doc. 43-2 at 11).
Plaintiff does not provide any evidence showing Defendant Griego was deliberately

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false or dishonest in stating his belief and experiences. Accordingly, Plaintiff has failed
to establish Defendant Griego falsified information in order to obtain the search warrant.
Finally, even assuming Defendant Griego violated Plaintiff’s Fourth Amendment
rights after he obtained the search warrant, Plaintiff has not provided case law
establishing Defendant Griego violated Plaintiff’s clearly established rights. Here, as
before, Plaintiff has not shown it was clearly established that a state law enforcement
officer violates the Fourth Amendment by entering a property at the invitation of another
state law enforcement officer executing a valid search warrant, observing evidence,
obtaining a different search warrant based on those observations, and then returning
and executing the search warrant. Thus, even if Defendant Griego violated the Fourth
Amendment after he obtained a search warrant, he is still entitled to qualified immunity.
III.

Conclusion
For the foregoing reasons, Plaintiff has not established a genuine dispute as to a

material fact, and Defendant is entitled to judgment as a matter of law on qualified
immunity grounds. IT IS THEREFORE RECOMMENDED that Defendant Griego’s
Motion for Summary Judgment on the Basis of Qualified Immunity be GRANTED and all
claims against Defendant Griego be DISMISSED WITH PREJUDICE.
THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF
SERVICE of a copy of these Proposed Findings and Recommended Disposition they
may file written objections with the Clerk of the District Court pursuant to 28 U.S.C. §
636(b)(1). A party must file any objections with the Clerk of the District Court
within the fourteen-day period if that party wants to have appellate review of the
proposed findings and recommended disposition. If no objections are filed, no
appellate review will be allowed.

THE HONORABLE CARMEN E. GARZA
UNITED STATES MAGISTRATE JUDGE
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