Lеe Roy ROMERO, Plaintiff-Appellant, v. Eric SCHUM, an officer employed by the New Mexico State Police, individually, Defendant-Appellee.
No. 10-2084
United States Court of Appeals, Tenth Circuit.
Feb. 15, 2011.
Before MURPHY, McKAY, and HOLMES, Circuit Judges.
Sharon B. Hawk, Esq., Hawk Law, Albuquerque, NM, for Plaintiff-Appellant. Christina Brennan, James P. Sullivan, Brennan & Sullivan, P.A., Santa Fe, NM, for Defendant-Appellee.
D. Failure to understand drug laws
Garcia argues that his counsel did not understand the controlled substance laws because counsel should have recognized that methamphetamine is, by statute, a Schedule III substance, rather than a Schedule II substance. Garcia‘s view of methamphetamine‘s classification is incorrect. We have previously held that the Attorney General properly re-classified methamphetamine as a Schedule II сontrolled substance pursuant to
E. Failure to obtain a post-sentencing motion based on substantial assistance
Garcia argues that counsel was ineffective for failing to advocate more strongly for the government to move for a sentence reduction due to substantial assistance. In his petitiоn, Garcia acknowledges that, to the extent he offered assistance, “it was obvious it wasn‘t the assistance that [the government] wanted.” ROA at 12. Garcia has failed to show deficient performance or prejudice because he admits that the government did not regard his assistance as substantial. His counsel could do nothing to alter the government‘s receptiveness to the information Garcia had to offer.
Garcia has not shown that reasonable jurists could debаte whether his petition states a valid claim for the denial of a constitutional right. Garcia‘s request for a COA is DENIED and the matter is DISMISSED.2
MONROE G. McKAY, Circuit Judge.
Plaintiff Lee Roy Romero commenced this civil rights/state tort action in New Mexico following a warrantless arrest from his home by defendant state police officer Eric Schum for the misdemeanor offense of concealing identity,
Before we address specific arguments advanced by the parties, it would be helpful to set out a general summary of the events surrounding Mr. Romero‘s arrest. Additional factual points will be discussed later where apprоpriate in our analysis of the issues presented for our review.
I. GENERAL FACTUAL BACKGROUND
On April 30, 2006, Louisa Maestas reported her teenage daughter Eve missing. Officer Schum, who had assisted in returning Eve home following a prior runaway incident, was assigned to the case. Louisa informed officer Schum that Eve had left the family home in Wagon Mound, New Mexico about a week earlier, to go to Albuquerque with her twenty-year-old boyfriend Kevin Romero. Kevin is the son of Mr. Romero and his wife Evangeline. Louisa Maestas and Mrs. Rоmero were in nearly daily contact regarding their children, who had been dating for some time. On May 9, Mrs. Romero told Louisa Maestas that Eve and Kevin had shown up at the Romero home in Montezuma, New Mexico, very late the previous night and stayed over, but had left in the afternoon after being told they could not stay there because they were not married. Louisa Maestas called officer Schum and relayed the information that Eve and Kevin had stayed at the Romero home the previous night. Officer Schum drove over to investigate, arriving at about 10:00 p.m.
Mrs. Romero met officer Schum at the door. She repeated the facts she had told Louisa Maestas, and even showed officer Schum that the caller I.D. on her phone reflected their recent contact. She also invited officer Schum inside and provided her identification. When officer Schum asked to see Mr. Romero too, she called him out of the bedroom. Mr. Romero reitеrated the account his wife had given, making it clear he did not consider it acceptable for Eve and Kevin to stay at the house. He provided his name, phone number, and date of birth (the date that appears on his birth certificate), but said that he did not have any documentary identification with him. Officer Schum then asked for his social security number, which he refused to divulge. Mr. Romero adamantly held to the view, which he attributed to public service ads by the New Mexico Attorney Genеral, that people should not reveal their social security numbers. Officer Schum relented and concluded the visit. He assured the Romeros that he would leave them alone, but told them to call him if Eve returned.
Officer Schum radioed dispatch the identifying information the Romeros had provided. He was told that no record had been found for a Lee Roy Romero with the specified birth date. It is not clear what data bases had been checked other than the criminal reсords of the National Crime Information Center and the driver‘s licenses records of the New Mexico Department of Motor Vehicles. In any event, officer Schum testified that, in his experience, a no-record finding from dispatch was a strong indication that false information had been provided. He decided to return to the Romero home to clear up the matter.
This second visit ended in the arrest at the heart of this lawsuit. Some of the facts regarding the encounter, particularly the precise location of the parties and manner in which officer Schum effected the arrest, were disputed. Indeed, the trial was held to resolve just these physical
Officer Schum was met at the door by Mrs. Romero, who was on the phone with Louisa Maestas. When he said he needed to speak with Mr. Romero, she called her husband to the door. Mr. Romero came and stood behind and to the side of his wife, who was holding the door open. Officer Schum explained that the information Mr. Romero had provided did not come up in a records search and that he needed Mr. Romero‘s social security number. Mr. Romero again insisted he would not divulge it, and bеgan repeating that he had done nothing wrong. Finally, he said that if he had committed a crime, officer Schum should arrest him. With that, officer Schum moved toward the door to arrest Mr. Romero, who stepped back further into the house. Officer Schum moved past Mrs. Romero and followed Mr. Romero inside. He held Mr. Romero against a couch near the door and handcuffed him, telling him he was under arrest for concealing his identity. During the scuffle, officer Schum retrieved and examined Mr. Romero‘s wallet, but found no identification. He walked Mr. Romero out to his patrol car and drove them to the police station, where another search evidently revealed a record for Mr. Romero with a birth date a year earlier than the date he had given. The arrest for concealing identity was completed, though the charge was not later prosecuted.
II. CONSTITUTIONALITY OF ARREST FOR CONCEALING IDENTITY
The Supreme Court held in 1979 that police officers lacking “reasonable suspicion to believe [a person] was engaged or had engaged in criminal conduct” may not demand identification and arrest the person for failing to provide it.1 Brown v. Texas, 443 U.S. 47, 53, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979). That remains black letter Fourth Amendment law. See Keylon v. City of Albuquerque, 535 F.3d 1210, 1216 (10th Cir.2008) (holding, following Brown, that “to arrest for concealing identity [in violation of
Mr. Romero argued, both in the summary judgment proceedings and in his renewed motion for judgment as a matter of law (JMOL), that officer Schum lacked reasonable suspicion of underlying criminal activity to justify the demand for his identification and that his resulting arrest for conсealing identity was impermissible under the Fourth Amendment principle recognized in Brown and applied in Keylon. The district court‘s final analysis of the matter, in its order denying the motion for JMOL, turned solely on a rejection of the legal premise of Mr. Romero‘s argument, regarding the arresting officer‘s need for reasonable suspicion of a predicate crime, finding that this premise was
Prior to the trial, the Court, ruling on a motion for summary judgment, concluded that Defendant had probable cause to arrest Plaintiff for the misdemeanor offense of concealing his identity. Plaintiff requests the Court “to determine as a matter of law that Defendant lacked probable cause to arrest Plaintiff pursuant to Keylon.” Keylon states “to arrest for concealing identity, there must be reasonable suspicion of some predicate, underlying offense.”
The Court will not “determine as a matter of law that Defendant lacked the requisite probable сause to arrest Plaintiff pursuant to Keylon” because Keylon was decided two years after Defendant arrested plaintiff... [and] an earlier case involving New Mexico‘s concealing identity statute did not state that an officer must have reasonable suspicion of some predicate, underlying crime before arresting a person for concealing identity. See Albright v. Rodriguez, 51 F.3d 1531, 1537 (10th Cir.1995) (“Twice the Supreme Court has specifically refused to determine whether an individual can be arrested for refusing to identify himself in thе context of a lawful investigatory stop. The issue remains unsettled.“).
District Court Order dated March 17, 2010, at 5-6 (Aplt.App. vol. I, at 177-78) (quotation and citations omitted).
We cannot uphold this analysis. While Keylon was decided in 2008, it applied a Fourth Amendment principle recognized thirty years earlier in Brown. Indeed, consistent with the fact that it was applying law already clearly established, Keylon itself did not just find a constitutional violation, see id. at 1216-17, but went on to deny qualified immunity as well, id. at 1217-20. See also Richardson v. Bonds, 860 F.2d 1427, 1432 (7th Cir.1988) (holding that by 1985 “it was clearly established that a private citizen could not be arrested for failing to identify himself in response to an inquiry which was part of a legitimate police investigation, absent other suspicious circumstances“). In no way can the timing of Keylon be relied upon to either deny a constitutional violation or grant qualified immunity here.
Nor does Albright alter the analysis. Once the Supreme Court established the pertinent legal principle in Brown, this circuit court could not purport to nullify it in Albright. And of course we did not. Rather, we acknowledged Brown‘s predicate-crime principle, see Albright, 51 F.3d at 1537 n. 4—which was satisfied because the officer had both probable cause as to concealing identity and reasonable suspicion for obstruction of justice, id. at 1537-38 and focused, rather, on the converse question Brown left open: whether an arrest fоr concealing identity is permissible even if the officer had reasonable suspicion of criminal activity sufficient to stop the suspect, id. at 1537-38. See also supra note 1. That the unsettled nature of the latter question afforded qualified immunity to the arresting officer in Albright, who had reasonable suspicion to stop the plaintiff, in no way supports the denial of a constitutional violation or the grant of qualified immunity to officer Schum here absent a finding that he likewise had reasonablе
We must therefore look elsewhere for an affirmable rationale supporting Mr. Romero‘s arrest for concealing identity. In particular, we turn to the district court‘s pretrial summary judgment decision, which while denying both parties’ motions, nevertheless indicated that officer Schum had an adequate legal basis for arresting Mr. Romero. For reasons explained above, we pass over the district court‘s repeated point regarding the timing of the Keylon decision.
The district court also attempted to distinguish Keylon factually. But it is the legal principle applied in Keylon—the predicate-crime requirement previously established in Brown—that plainly controls herе, not the specific circumstances of its application in Keylon. Unless the cited circumstances bear on the operation of the Brown predicate-offense requirement, and they do not, they are distinctions without a difference. First, the district court emphasized that Mr. Romero concealed his identity not by passively refusing to divulge identifying information but by actively giving false information (at least as matters appeared to officer Schum after hearing from dispatch that nо record had been found matching the birth date Schum had relayed3). But this distinction relates to the factual basis for probable cause on the concealed-identity charge, not to the officer‘s requisite reasonable suspicion of another, predicate crime, which is the material point. Neither the district court nor officer Schum, who parrots this factual distinction on appeal, has provided any explanation of how the manner in which Mr. Romero may have violated the concealed-identity statute could possibly obviate or satisfy the distinct threshold inquiry under Brown into the arresting officer‘s reasonable suspicion of a another, predicate offense.
Second, as officer Schum emphasizes on appeal, he “had reasonable suspicion to investigate Mr. Romero as he was, at the very least, a witness to the investigation into the runaway child.” Aplee. Br. at 10 (emphasis added). But Brown and its progeny require “reasonable suspicion to believe the [person detained for identification and arrested for failing to comply] was engaged or had engaged in criminal conduct.” Brown, 443 U.S. at 53, 99 S.Ct. 2637 (emphasis added); see Hiibel v. Sixth Judicial Dist. Court of Nev., 542 U.S. 177, 184, 124 S.Ct. 2451, 159 L.Ed.2d 292 (2004) (noting Brown‘s requirement of “reasonable suspicion to believe the suspect was involved in criminal activity“). “[W]hatever purposes may be served by ‘demanding identification from an individual [on pain of arrest for noncompliance] without any specific basis for believing he is involved in
III. PURPOSE AND SCOPE OF REMAND
That brings us to what should have been the focus of this critical aspect of the case: did officer Schum have reasonable suspicion that Mr. Romero was or had been engaged in criminal activity when he was arrested for concealing his identity. In the district court proceedings, officer Schum argued that Mr. Romero could have been suspected of one crime: contributing to the delinquency of a minor, in connection with Eve Maesta‘s stay at his home the night before the arrest, in violation of
But the district court never determined whether the evidence established reasonable suspicion of this crime. And that task is not lightly undertаken in the first instance by an appellate court, as it entails a mixed question of fact and law appropriately left to the district court here: “the district court must determine how the [New Mexico] courts would interpret [
If officer Schum was not authorized to arrest Mr. Romero for concealing his identity due to the lack of reasonable suspicion of an underlying crime, the arrest was unconstitutional regardless of whether there was probable cause for the concealing-identity offense itself (see supra note 3) and whether the arrest was effected outside or inside the home. We therefore decline to consider the latter issues at this point. Accordingly, we remand this case for a detеrmination whether the facts known to officer Schum afforded reasonable suspicion that Mr. Romero was, or had been, engaged in criminal activity when he was arrested for concealing his identity. Following that determination, the aggrieved party may, of course, appeal and challenge the disposition of any aspect of the case that has remained or has become adverse to his interest.
The judgment of the district court is VACATED in part and the cause is REMANDED for furthеr proceedings consistent with this order and judgment.