McCullars v. New Mexico State Police et al
MEMORANDUM OPINION AND ORDER by Magistrate Judge Stephan M. Vidmar GRANTING 29 Defendant's Motion for Partial Summary Judgment (am)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
No. 16-cv-0962 SMV/GBW
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Defendant’s Motion for Partial Summary
Judgment on Recoverable Damages, filed March 31, 2017. [Doc. 29]. Plaintiff responded on
April 11, 2017. [Doc. 30]. Defendant replied on April 25, 2017. [Doc. 31]. Having considered
the briefing, the record, and the relevant law, and being otherwise fully advised in the premises,
the Court finds that Defendant’s motion is well-taken and will be GRANTED.
Plaintiff was the passenger in a vehicle traveling in Lincoln County, New Mexico, on the
evening of April 17, 2014. [Doc. 29] at 2. Defendant, a New Mexico State Police officer,
stopped the vehicle for speeding. Id. When he approached the vehicle, he smelled marijuana.
Id. In the course of issuing the speeding ticket to the driver, Defendant began questioning both
occupants of the vehicle. Id. at 3–4; [Doc. 1] at 10–11. He asked them whether they had drugs,
drug paraphernalia, or large amounts of cash inside the vehicle. [Doc. 1] at 10. They responded
in the negative. Id.; [Doc. 29] at 2–3. Defendant then asked for permission to search the vehicle.
Plaintiff replied “no.” [Doc. 29] at 3. What followed after Plaintiff declined to consent to the
search was a lengthy, confusing colloquy during which Defendant attempted to obtain Plaintiff’s
permission to search the vehicle and Plaintiff provided increasingly opaque responses. Id. The
pertinent portion of the exchange is excerpted below.
Okay, well I’m asking the questions
right now. I can smell the marijuana in the vehicle. I’m asking for
your consent. I’m not trying to coerce y’all or nothing. If you
don’t give me consent, I’m goin [sic] take the vehicle, I’m goin
[sic] apply for a search warrant and if the judge grants me the
search warrant, I’m going to search the vehicle. It’s plain and
simple how this is going to go. I could smell it as soon as I walked
up to y’all. But it’s your choice, yes or no.
I don’t want to beat around the bush, it’s either, I’m asking, can I
search your vehicle?
MELISSA McCULLERS: I would prefer not to.
So is that a yes or no?
MELISSA McCULLERS: I mean, you’re not going to find
Is that a yes or no?
MELISSA McCULLERS: [Inaudible]
your map down.
Okay, step out of the vehicle. Put
MELISSA McCULLERS: It’s just like all my personal stuff in
here. We do live in here.
[Doc. 29] at 3. After this exchange, Defendant instructed Plaintiff and her companion to stand
approximately fifty feet up the road from the vehicle. [Doc. 1] at 11. Defendant procured a
“consent to search” form. Plaintiff and her companion ultimately signed the form. [Doc. 1]
Defendant and another officer searched the vehicle and found a small amount of
marijuana. [Doc. 1] at 12. They also found a locked safe in the vehicle. [Doc. 29] at 4.
Throughout the encounter, Defendant repeatedly told Plaintiff and her companion that they
themselves were “free to go,” but they were not free to take the car with them. E.g., [Doc. 1]
at 12–13. Defendant also contends that a K-9 was brought to the scene and “alerted to drugs in
both the vehicle and the strongbox.”1 [Doc. 29] at 4. Defendant sought permission to open the
safe, but Plaintiff and her companion said they did not have the key to it. Defendant told them,
Like I said if I don’t get a key to [the safe], I’m going to take it, I’ll
get a search warrant . . . . I’m not here to argue with you. I’m here
to search and find any marijuana that I can, and with it locked like
that, if you don’t have a key and you’re not willing to open it,
you’re not giving me consent, so in that order I have to get a search
warrant from the court.
[Doc. 1] at 13 (quoting from a police camera video). Plaintiff’s companion admitted that the
marijuana found in the vehicle belonged to him. [Doc. 29] at 4. Defendant issued him citations
for the traffic violation and the marijuana and released them. Defendant did not issue a citation
to Plaintiff or take any other action against her at that time. Before releasing them, Defendant
removed the safe and placed it in the trunk of his police vehicle. Id.
The following day, April 18, 2014, Defendant sought and obtained a search warrant to
open the safe.
Id.; [Doc. 29-1] at 4–5.
The safe contained drugs (including oxycodone,
suboxone, and buprenorphine, but not marijuana), drug paraphernalia, and other related items,
including a ledger book with a list of names and phone numbers. [Doc. 29] at 4; [Doc. 1] at 14.
On finding the contraband, Defendant filed a criminal complaint and an arrest warrant was
In Plaintiff’s First Amended Complaint, she notes that during the suppression hearing in her underlying criminal
case, Defendant admitted that the results of the K-9 sniff “did not form the basis of the probable cause he used to
search.” [Doc. 1] at 13 (internal quotation marks omitted).
issued. [Doc. 29] at 5; [Doc. 29-1] at 6–10. Plaintiff was taken into custody on May 18, 2014.
[Doc. 29] at 5. Plaintiff remained in custody until April 15, 2015, when she was released on
bond. Id. at 6. On June 11, 2015, Plaintiff filed a motion to suppress the evidence of the search,
on the ground that the search had not been consensual. Id. The motion was granted on June 15,
2015, and the deputy district attorney filed a nolle prosequi shortly thereafter. Id.
Plaintiff initiated this lawsuit in April 2016, asserting claims under 42 U.S.C. § 1983 and
NMSA 1978, § 41-4-12. [Doc. 1] at 9–17. Plaintiff claims that Defendant’s warrantless search
and seizure violated the Fourth Amendment of the U.S. Constitution and Article II, Section 10 of
the New Mexico Constitution. Id. at 15, 16. She alleges that as a result of the unlawful search
and seizure, she “suffered personal injuries, including but not limited to, incarceration, the loss of
her freedom, and having to defend against criminal charges.”
Id. at 15.
compensatory and punitive damages, as well as costs and attorney fees. Id. at 17.
Defendant filed the instant motion for partial summary judgment to limit Plaintiff’s
recoverable damages on her § 1983 claim. [Doc. 29]. He does not, in this motion, assert
qualified immunity or contest Plaintiff’s claim that the search of the vehicle and seizure of the
vehicle and lockbox violated her constitutional rights.2 Rather, he asks the Court to preclude
Plaintiff from recovering damages under her § 1983 claim associated with her arrest and
subsequent criminal proceedings—namely, her nearly year-long pretrial detention. Id. at 1–2, 8.
In the main, Defendant argues that the exclusionary rule and the “fruit of the poisonous tree”
doctrine, principles that apply in the criminal context to preclude the admission of illegally
Defendant has not filed a motion to dismiss or motion for summary judgment based on qualified immunity or
based on the merits of Plaintiff’s claim that Defendant violated her constitutional rights. He notes at the outset of
the present motion that he does, however, intend to challenge the substance of Plaintiff’s claim. [Doc. 29] at 1 n.1.
obtained evidence, do not apply in the context of § 1983 civil actions. Id. at 9–12. Therefore, he
contends, the unconstitutional search of the vehicle and seizure of the vehicle and lockbox do not
taint the subsequent search of the safe and arrest of Plaintiff, both of which were carried out
pursuant to warrants issued by an independent magistrate based on a finding of probable cause.
Because these lawful actions, and not the prior unlawful actions, led to Plaintiff’s detention,
Defendant claims he cannot be liable for the damages stemming from that detention.
Relatedly, Defendant contends that a number of independent judicial determinations—the
determination that there was probable cause to search the safe, the determination that there was
probable cause to arrest Plaintiff, the determination to detain Plaintiff pending trial, and
subsequent judicial determinations respecting her continued detention and trial schedule—are
intervening actions that preclude Plaintiff from establishing proximate cause, a requirement to
recover damages in a § 1983 suit. Id. at 13–16. Finally, Defendant contends that Plaintiff
waived the right to seek damages for her detention because she delayed asserting her
constitutional rights in her criminal trial (i.e., filing the motion to suppress) until after she was
released on bond. Id. at 16–17.
Plaintiff argues that, in the Tenth Circuit, a defendant in a § 1983 action based on an
unlawful search or seizure can be held liable for the damages that flow from the search or
seizure, including detention and the costs of defending against criminal charges. Plaintiff relies
almost exclusively on a single case from this District (though Plaintiff mistakenly characterizes it
as a decision by the Tenth Circuit Court of Appeals) in support of her position. [Doc. 30] at 2–7
(citing Train v. City of Albuquerque, 629 F. Supp. 2d 1243 (D.N.M. 2009)). She argues that
Train dictates that such damages are available to plaintiffs upon a showing of proximate cause,
the determination of which is a question of fact left to the jury. She further contends that
Plaintiff could not have waived her right to assert a constitutional claim here by not raising it
earlier in the criminal court proceedings. Id. at 7–10. She argues that the requisite statute of
limitations governs the time within which a party must assert her constitutional claims; that
Defendant’s reliance on speedy trial case law is inapposite here; and that that waiver of a
substantive right generally requires a finding that the waiver was knowing, intelligent, and
Plaintiff also suggests that, as a policy matter, damages flowing from an
unconstitutional search or seizure should be recoverable in order to hold officers accountable for
their unlawful conduct. Id. at 10–11.
The Court assumes without deciding, for purposes of this analysis, that Defendant
violated Plaintiff’s Fourth Amendment right to be free from unreasonable searches and seizures
by searching and seizing Plaintiff’s vehicle and seizing the lockbox. The narrow issue the Court
must decide is the scope of injury—and thus, the scope of recoverable damages—arising from
that unconstitutional search and seizure. The Court must decide whether Plaintiff may recover
damages for the injuries that occurred following the search of the lockbox and her arrest—
namely, damages relating to her pretrial detention. The Court finds that Plaintiff is not entitled to
recover such damages.
Summary Judgment Standard
Summary judgment will be granted “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). The movant bears the initial burden of establishing that there is no genuine
issue as to any material fact and that the movant is entitled to judgment as a matter of law.
Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). If this burden is met, the non-movant
must come forward with specific facts, supported by admissible evidence, which demonstrate the
presence of a genuine issue for trial. Id. at 324. A genuine dispute exists if “the evidence is such
that a reasonable jury could return a verdict for the nonmoving party” on the issue. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Although all facts are construed in favor of the
non-movant, the non-movant still has a responsibility to “go beyond the pleadings and designate
specific facts so as to make a showing sufficient to establish the existence of an element essential
to [his] case in order to survive summary judgment.” Johnson v. Mullin, 422 F.3d 1184, 1187
(10th Cir. 2005) (alteration in original) (internal quotation marks omitted).
Damages Under § 1983
Fourth Amendment rights. Carey v. Piphus, 435 U.S. 247, 254–55 (1978). The statute itself is
silent as to the kind of damages that may be awarded. The Supreme Court has stated that
principles of tort law provide the “appropriate starting point” for the inquiry into the damages
allowable in a § 1983 action. Id. at 258. That is, where a constitutional right sufficiently
comports with an interest protected in tort law, the court may apply the applicable tort damage
However, some constitutional rights “may not also be protected by an
analogous branch of the common law torts.” Id. In such cases, the court is tasked with
“adapting common-law rules of damages to provide fair compensation for injuries caused by the
deprivation of a constitutional right.” Id. At bottom, damages in a § 1983 action “should be
tailored to the interests protected by the particular right in question—just as the common-law
rules of damages themselves were defined by the interests protected in the various branches of
tort law.” Id. at 259.
The Tenth Circuit has not passed on the allowable scope of damages stemming from
illegal searches and seizures. The circuits to have decided the issue have reached different
conclusions. For example, in Townes v. City of New York, 176 F.3d 138 (2d Cir. 1999), the
Second Circuit concluded that the claimed injury—violation of the “Fourth Amendment right to
be free from unreasonable searches and seizures”—did not fit the damages sought—
“compensation for . . . conviction and incarceration” stemming from the failure to suppress
evidence that was unlawfully obtained. Id. at 147. Among other reasons, the court found a
“gross disconnect” between the protections enshrined in the Fourth Amendment (namely,
privacy) and the injury that results from the discovery of incriminating information. Id. at 148.
“The evil of an unreasonable search or seizure is that it invades privacy, not that it uncovers
crime . . . .” Id. The Third Circuit reached a similar conclusion, holding that “damages for an
unlawful search should not extend to post-indictment legal process, for the damages incurred in
that process are too unrelated to the Fourth Amendment’s privacy concerns.” Hector v. Watt,
235 F.3d 154, 157 (3d Cir. 2000).
Other courts have taken a broader view of the interests enshrined in the
Fourth Amendment and the scope of allowable damages stemming for an unlawful search. In
Train v. City of Albuquerque, the Honorable James O. Browning, United States District Judge,
reasoned that courts considering allowable damages under § 1983 should not be constricted by
whether an analogous common law tort would permit recovery. 629 F. Supp. 2d at 1251–52. In
that case, the plaintiff had been the victim of a warrantless search of his apartment. The search
revealed an unlawful weapon. The plaintiff was later indicted on federal charges for felon in
unlawful possession of a firearm. In his criminal case, Train filed a motion to suppress evidence
of the firearm based on the argument that the entry and search of the apartment was unlawful.
That motion was granted, and the charges were eventually dismissed. In the meantime, Train
spent ten months incarcerated in a federal facility. In his subsequent § 1983 action against the
City of Albuquerque and the officers who conducted the search, he sought to recover damages
for the cost of defending himself against the federal criminal charges, as well as lost wages and
emotional distress damages stemming from his detention.
The defendants filed motions in limine seeking to exclude evidence of Train’s
incarceration, arguing that damages for an unlawful search should not extend to post-indictment
legal process. In ruling on those motions, Judge Browning found that the Tenth Circuit has
identified liberty, property, privacy, and sense of security and individual dignity—not just
privacy alone—as the interests the Fourth Amendment protects. Id. at 1252 (citing Holland ex
rel. Overdorff v. Harrington, 268 F.3d 1179, 1196 (10th Cir. 2001)). Because these interests
were implicated by the injuries flowing from the post-indictment legal process, he found that
plaintiff could, upon a showing of proximate cause, recover damages stemming from such
injuries in his § 1983 action. Id. The court went on to hold that whether an intervening cause,
such as a prosecutor’s or judge’s independent decision, cut off liability (i.e., whether the plaintiff
had established proximate cause) was a question of fact for the jury to decide. Id. at 1253. As
the court in Train pointed out, an earlier Ninth Circuit decision had reached the same conclusion.
Borunda v. Richmond, 885 F.2d 1384, 1389–90 (9th Cir. 1988) (holding that plaintiffs could
recover the costs of defending against their criminal prosecutions on a finding that the injury was
proximately caused by the unlawful search that gave rise to the criminal proceedings); see also
Kerr v. City of Chicago, 424 F.2d 1134, 1141 (7th Cir. 1970) (stating without further analysis
that “a plaintiff in a civil rights action should be allowed to recover the attorneys’ fees in a state
criminal action where the expenditure is a foreseeable result of the acts of the defendant”).
Without deciding whether, as a categorical matter, a party may ever recover post-arrest
damages in a § 1983 action based on an unlawful search and seizure, the Court concludes that
Plaintiff is not entitled to recover such damages in this case. Plaintiff was arrested pursuant to an
arrest warrant, which was issued following the discovery of contraband during the search of the
lockbox, which itself was conducted pursuant to a search warrant. Plaintiff does not contend that
the search warrant Defendant obtained to search the lockbox was invalid. Nor does Plaintiff
contend that the arrest warrant Defendant obtained based on the evidence recovered from the
lockbox was invalid. Defendant may not be held liable for the injuries that resulted from these
lawful acts, even though they were carried out pursuant to information obtained by virtue of
Defendant’s earlier unlawful acts (the initial search and seizure).
Whether prior unlawful acts may taint subsequent lawful acts implicates the exclusionary
rule and the fruit of the poisonous tree doctrine. The exclusionary rule precludes the government
from using evidence acquired during an unconstitutional search and seizure in a criminal
prosecution against the victim of the unconstitutional action. United States v. Calandra, 414
U.S. 338, 347 (1974). The “fruit of the poisonous tree” doctrine extends the exclusionary rule to
evidence that was obtained as a result of the illegal search and seizure, unless the evidence is so
far removed from the constitutional violation that the taint of the violation no longer clings to it.
Wong Sun v. United States, 371 U.S. 471, 484 (1963).
Whether the evidentiary “fruits”
stemming from an unlawful search are admissible depends on whether such evidence “has been
come at by exploitation of [the underlying illegal search] or instead by means sufficiently
distinguishable to be purged of the primary taint.” United States v. Olivares-Rangel, 458 F.3d
1104, 1109 (10th Cir. 2006) (quoting Wong Sun, 371 U.S. at 488). The exclusionary rule is not a
personal constitutional right of the victim of the unconstitutional activity, but rather a “judicially
created means of deterring illegal searches and seizures.” Penn. Bd. of Prob. & Parole v. Scott,
524 U.S. 357, 363 (1998).
There appears to be a consensus of opinion that the exclusionary rule and fruit of the
poisonous tree doctrine do not apply to § 1983 actions. E.g., Townes, 176 F.3d at 145–46; Lingo
v. City of Salem, 832 F.3d 953, 958–959 (9th Cir. 2016); Black v. Wigington, 811 F.3d 1259,
1268 (11th Cir. 2016); Wren v. Towe, 130 F.3d 154, 1158 (5th Cir. 1997) (per curiam); Machado
v. Weare Police Dep’t, 494 F. App’x 102, 106 (1st Cir. 2012) (per curiam); Hector, 235 F.3d at
158–60; Galicia v. United States, 13-cv-0105 MCA/LAM, [Doc. 92] at 10–11 (D.N.M. Feb. 24,
2015). “[T]he lack of probable cause to . . . search does not vitiate the probable cause to arrest
on the basis of evidence found in that search.” Lingo, 832 F.3d at 960 (alternation in original)
(internal quotations omitted); see also Penn Bd. of Prob., 524 U.S. at 362 (“We have emphasized
repeatedly that the governments’ use of evidence obtained in violation of the Fourth Amendment
does not itself violate the Constitution.”). The fruit of the poisonous tree doctrine “is not
available to elongate the chain of causation” in the § 1983 context. Townes, 176 F.3d at 146.
Thus, unlawfully obtained information may be put to a lawful purpose.
Following Defendant’s search of the vehicle, Plaintiff was free to go. She had not been
arrested nor issued a citation. True, Defendant seized the lockbox as a result of that initial
unlawful search. But the search of the lockbox itself was based on a warrant issued by a neutral
And Plaintiff’s arrest was based on a warrant issued by a neutral magistrate.
Because the fruit of the poisonous tree doctrine does not apply in the § 1983 context, the
information obtained from the initial unconstitutional search and seizure does not taint these
subsequent lawful events.
The damages Plaintiff seeks—those relating to her pretrial
detention—arose from a second, lawful search and arrest.
Plaintiff may not recover such
Though Plaintiff stresses the factual similarities between this case and Train—the case on
which Plaintiff exclusively relies—the facts here are more akin to those in Dalcour v. Gillespie,
2013 WL 2903399 (D. Colo. June 14, 2013) (unpublished), a decision of the District of Colorado
that distinguished the holding of Train. In Dalcour, the defendant police officer was told by a
child services caseworker that Mr. Dalcour might be present in the home of two children and
their mother in violation of a court-issued order of protection. The officer went to the home and
attempted to check on the welfare of the children. The mother answered the door but refused to
allow the officer to enter. The officer put her foot in the doorway and was able to ascertain that
Mr. Dalcour was in the home.
Other officers arrived, and based on the information that
Mr. Dalcour was present in the home in violation of the court order, a second officer decided to
forcibly enter the home. The officers did force entry into the home. They arrested Mr. Dalcour
and the mother. Id. at *1.
Eventually, the Tenth Circuit Court of Appeals determined that when the first officer put
in her foot in the door, her actions constituted an unlawful search. See id. at *2. However, the
court also held that the forced entry was not unlawful because the second officer reasonably
believed that they had authority to enter. See id. at *2, 7. On remand, the district court
considered whether the plaintiffs could recover under § 1983 for injuries they sustained as a
result of police officers’ second, lawful entry into their home following an initial unlawful entry.
Id. at *5–7.
The court held that, because the exclusionary rule and fruit of the poisonous tree doctrine
did not apply, “there is no legal reason why [the officer] could not convey what she had learned[,
i.e., that Mr. Dalcour was in the home] (albeit through wrongful conduct)” or why the officers
could not rely on that information. Id. at *6. The court reasoned: “Even if the [second] forced
entry can be said to have been proximately caused by” the first officer’s initial unlawful entry,
“the fact remains that the [second] entry was lawful.” Id. at *7. The court distinguished Train
on that basis:
Train properly found that the plaintiff was entitled to recover for
all injuries that proximately flowed from that unlawful search.
Here, although [defendant’s] initial “search”—the foot in the
doorway—may have been unlawful, the chain of causation is
broken by a lawful subsequent search and arrest. The Plaintiffs
cannot recover for injuries that arise from lawful conduct simply
because it was preceded by unlawful conduct.
Id. at *7.
The present case is distinguishable from Train on the same basis. Just as in Dalcour, the
unconstitutional search and seizure in the instant case gave way to a lawful search and arrest,
both based on warrants issued by a neutral magistrate. Plaintiff cannot recover for injuries that
arose from lawful conduct simply because the lawful conduct was preceded by unlawful conduct.
This holding is in line with authority stating that the findings of an independent magistrate are, as
a matter of law, superseding events that disrupt proximate cause. See Hector, 235 F.3d at 163
(Nygaard, J., concurring) (“[T]he magistrate issued a search warrant before the officers
recovered the contraband, and this act of independent judgment breaks the chain of causation
between the illegal detention and [the plaintiff’s] subsequent legal costs.”); see also, e.g.,
Townes, 176 F.3d at 146 (trial court’s refusal to suppress the evidence from the unlawful search
constituted an intervening and superseding cause of the plaintiff’s conviction and incarceration,
for which he sought damages); Barts v. Joyner, 865 F.2d 1187, 1196–97 (11th Cir. 1989)
(intervening acts of prosecutor, judge, and jury broke the chain of causation).3
Plaintiff’s arrest and pretrial detention arose from a second, lawful search performed
following the initial unlawful search and seizure. Plaintiff is therefore not entitled to recover
damages flowing from her arrest and pretrial detention. Defendant’s Motion will be granted.
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that Defendant’s
Motion for Partial Summary Judgment on Recoverable Damages [Doc. 29] is GRANTED.
IT IS SO ORDERED.
STEPHAN M. VIDMAR
United States Magistrate Judge
Presiding by Consent
To be sure, a neutral magistrate’s independent judgment will not break the causal chain if the officer misled or
pressured the magistrate. See Robinson v. Maruffi, 895 F.2d 649, 655–56 (10th Cir. 1990). Plaintiff makes no such
claim in this case.
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