MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on: (i) the Defendants’ Motion for Partial Summary Judgment, filed December 16, 2013 (Doc. 43)(“MSJ”); and (ii) the Defendants’ Objections to Plaintiffs Proposed Jury Instructions, filed February 14, 2014 (Doc. 68)(“Objections”). The Court held a hearing on February 13, 2014. The primary issues are: (i) whether police officers may, under the Fourth Amendment to the Constitution of the United States of America, legally enter a person’s yard when they do not have probable cause that the person has committed a crime or is destroying evidence, there are no exigent circumstances, there is no consent, but there is reasonable suspicion; (ii) whether, if the New Mexico Magistrate Judge, who is not a lawyer, determines that there is probable cause that a person committed a crime, that determination collaterally es-tops re-litigation in federal court of the issue of probable cause for that person’s arrest, entitling Brown and Rider to summary judgment on the unlawful arrest claim that Ysasi asserts comes under the Fourth and Fifth Amendments to the Constitution; and (iii) whether Plaintiff Manu
FACTUAL BACKGROUND
This case arises from an incident that occurred on February 25, 2010. See Complaint for Damages for Violation of Civil Rights and Jury Demand ¶ 5, at 2-3, filed February 25, 2013 (Doc. l)(“Complaint”); Memorandum in Support of Motion for Partial Summary Judgment ¶ 1, at 4, filed December 16, 2013 (Doc. 44)(“MSJ Memo.”)(setting forth this fact); Response to Memorandum in Support of Motion for Particial [sic] Summary Judgment ¶ 1, at 5, filed January 15, 2014 (Doc. 48)(“Re-sponse”)(not disputing this fact). On that date, Brown was dispatched to property located at North Evans Street in Hobbs, New Mexico, in response to a 911 call requesting assistance in recovering personal property. See Affidavit of Kelly Brown ¶ 3, at 1, filed December 16, 2013 (Doc. 44-l)(“Brown Aff.”); Audio of 911 Call and Radio Traffic Recordings, filed December 16, 2013 (Doc. 45)(lodged in Records)(“911 and Dispatch Audio”); MSJ Memo. ¶ 2, at 4 (setting forth this fact).
Brown and Rider arrived at Ysasi’s house to assist Thompson retrieve personal property; they did not know whether a crime had been committed and did not have any reports that a crime had occurred. See Transcription of Digitally-Recorded Preliminary Hearing at 58:23-59:19 (Reese, Rider), taken April 27, 2010, filed December 16, 2013 (Doc. 44-5), filed January 16, 2014 (Doc. 51-1), filed January 28, 2014 (Doc. 53-1)
Rider climbed a gate to enter the property and approached Ysasi, who was standing on an elevated platform or porch adjacent to the mobile home’s front door. See Brown Aff. ¶ 11, at 3; MSJ Memo. ¶ 11, at 6 (setting forth this fact); Response ¶ 13, at 7 (not disputing this fact).
Ysasi was arrested and transported to the LCDC, where he remained until March 1, 2010, at which time he posted bail and was released. See MSJ Memo. ¶ 13, at 6 (setting forth this fact); Response ¶ 16, at 7-8 (not disputing this fact).
A Criminal Complaint was filed in Lea County Magistrate Court with charges of Battery upon a Peace Officer, Resisting/Evading/Obstructing an Officer, and Concealing Identity. See Criminal Complaint, filed January 28, 2014 (Doc. 53-2); MSJ Memo. ¶ 14, at 6 (setting forth this fact); Response ¶ 17, at 8 (not disputing this fact). At the preliminary hearing, Rebecca Reese, a New Mexico Public Defender, represented Ysasi, and cross-examined Brown and Rider. See Preliminary Hearing Transcript at 2; MSJ Memo. ¶ 14, at 6 (setting forth this fact); Response ¶ 18, at 8 (not disputing this fact). Brown testified that, when he was dispatched, he was not dispatched to investigate a crime, see Preliminary Hearing Transcript at 14:23-15:1 (Reese, Brown), and Rider testified that, at the time he climbed over Ysasi’s fence, he was not certain if a crime had been committed, but he wanted to get Ysasi’s side of the story, see Preliminary Hearing Transcript at 58:20-59:19 (Reese, Rider). See Response ¶ 18 (setting forth this fact); Reply at 6 (not disputing this fact).
From the testimony and the evidence presented, I find that the state has presented evidence for me to believe there is probable cause that the defendant did commit the crimes of battery upon a police officer, resisting, evading and obstructing an officer, and concealing identity. It is the court’s decision to bind the defendant over to district court.
Preliminary Hearing Transcript at 97:8-14 (Judge Crenshaw). See MSJ Memo. ¶ 14, at 6 (setting forth this fact); Response ¶ 18, at 8 (not disputing this fact). On April 27, 2010, Judge Crenshaw bound the ease over to the Fifth Judicial District Court, County of Lea, State of New Mexico, Cause No. D-506-CR-20100169. See Bind-Over Order at 1; MSJ Memo. ¶ 15, at 6-7 (setting forth this fact); Response ¶ 19, at 8 (not disputing this fact). Tara M. Wood, a New Mexico Assistant District Attorney, entered a nolle prosequi, and the case was dismissed on September 27, 2010. See Nolle Prosequi, filed December 16, 2013 (Doc. 44-4 at 2); MSJ Memo.
PROCEDURAL BACKGROUND
On February 25, 2013, Ysasi filed suit against Brown, Rider, and the LCDC for “false arrest, unreasonable and excessive use of force against the person of the Plaintiff, failure to provide necessary and adequate medical care while in custody, and abuse of process when Deputies of the Lea County Sheriffs Department took him into custody.” Complaint at 1. In Count I, Ysasi alleges that Brown and Rider violated his rights under the Constitution by using excessive force and unreasonably seizing him, and that their actions constituted cruel and unusual punishment. See Complaint ¶ 32, at 7. In Count II, Ysasi brings state law claims against Brown and Rider for assault and battery. See Complaint ¶ 35, at 8. In Count III, Ysasi alleges that the LCDC,
through the acts of currently unknown employees and agents conspired with other named and unnamed persons to violate the rights of Mr. Ysasi by holding him incommunicado for a period of three days with[out] access to bail in an attempt to cover up the actions of Deputies Rider and Brown.
Complaint ¶ 40, at 9-10.
The Defendants move for summary judgment on all the claims except the claim against Brown and Rider for using excessive force. See MSJ at 1-2. The Defendants contend that: (i) Judge Cren-shaw’s finding of probable cause precludes the false arrest or unreasonable seizure claim; (ii) the statute of limitations bars the state law claims; (in) Brown’s and Rider’s entry onto Ysasi’s property to question him about a potential domestic abuse incident was not unreasonable; and (iv) there is no factual support for the claim against the LCDC, because the evidence shows that Ysasi was allowed to make personal calls while he was incarcerated. See MSJ ¶¶ 1-3,
The Defendants argue that the state law claims “can be summarily dismissed because of the statute of limitations,” because Ysasi filed his case more than two years after the incident, and the statute of limitations is two years. MSJ Memo, at 7 (citing N.M. Stat. Ann. § 41-4-15). The Defendants contend that the “claims against the LCDC can also be summarily dismissed,” because the LCDC Call Log shows that Ysasi was allowed to communicate with friends and relatives. MSJ Memo, at 7.
The Defendants argue that, “[t]o the extent the unreasonable seizure claim is based on an absence of probable cause for the arrest,” collateral estoppel precludes Ysasi from re-litigating the probable cause issue, because he had a full and fair opportunity to litigate probable cause at his preliminary hearing in April, 2010. MSJ Memo, at 8 (citing Hubbert v. Moore,
Ysasi abandons his state claims, because he agrees with the Defendants that the statute of limitations has passed on those claims. See Response at 8. Ysasi contends that Brown and Rider violated his constitutional rights by entering his property without probable cause, without an arrest warrant, and without a warrant to search the property. See Response at 10. In Ysasi’s view, Brown and Rider did not have any factual circumstances to believe that he committed any crime, including domestic violence, because, he asserts, the information from Vega, Thompson, and the 911 Dispatch Officer did not indicate that there was a crime being committed or a domestic violence problem, and that Brown and Rider did not observe any evidence of domestic violence. See Response at 10. According to Ysasi, “[t]he officers simply should have left the premises once the personal property was secured and in the hands of Heather Thompson.” Response at 10.
Ysasi further argues that, when Brown and Rider came onto his property, they confronted him and arrested him without probable cause. See Response at 9. He contends that, although a Magistrate Judge held a preliminary hearing, and found probable cause to bind him over for trial on the charges of battery on a police officer and obstructing a police officer, the Magistrate Judge’s jurisdiction is limited, that Magistrate Courts in New Mexico do not decide guilt or innocence, and that, because the district attorney chose to nolle prosequi the case, there was no final adjudication for Ysasi on the charges. See
Regarding the claim against the LCDC, Ysasi contends that it conspired with Brown and Rider to hold him for four days without arraignment and without bail, preventing anyone outside the LCDC from seeing the injuries he received from Brown and Rider. See Response at 5. He points to his deposition testimony to support his contention that he was held for four days without an arraignment and without bail, but he did not attach to the Response the deposition testimony. See Response at 12.
In the Reply, the Defendants argue that the Plaintiffs cannot support their contention that collateral estoppel does not bar the unlawful arrest claim. See Reply at 7-8. The Defendants set forth the elements of issue preclusion under New Mexico law:
Issue preclusion bars re-litigation of the same issue if (1) the party to be es-topped was a party to the prior proceeding, (2) the cause of action in the case presently before the court is different from the cause of action in the prior adjudication, (3) the issue was actually litigated in the prior adjudication, and (4) the issue was necessarily determined in the prior litigation.
Reply at 8 (quoting Ideal v. Burlington Res. Oil & Gas Co. LP,
Regarding the unlawful entry claim, the Defendants disagree with Ysasi’s contention that Brown and Rider were not investigating a predicate crime; the Defendants contend that “[t]he 911 call, the broken crib, Heather Thompson’s fear, and the Plaintiffs behavior in yelling obscenities all support a suspicion of domestic abuse.” Reply at 9. The Defendants argue that Brown and Rider were “entitled, even obligated, to gather information and hear both sides of the story.” Reply at 9.
The Defendants argue that they are entitled to summary judgment on Ysasi’s claim against the LCDC, because they produced evidence to show that Ysasi was able to make numerous personal telephone calls while he was incarcerated, and that Ysasi did not dispute this evidence or discuss his claim that the Defendants held him “incommunicado.” Reply at 9-10. The Defendants contend that Ysasi abandoned his “ ‘incommunicado’ conspiracy claim,” and that Ysasi’s Response raises a new theory — that the LCDC incarcerated him for four days without arraignment and without a bond — without explaining the legal theory upon which he bases liability. Reply at 10. The Defendants explain that they “will assume that Plaintiffs theory is that he did not receive a timely judicial determination of probable cause,” and argue that, under County of Riverside v. McLaughlin,
At the hearing, the Court confirmed that Ysasi agreed that the Court should dismiss all the state claims against the Defendants. See Transcript of Hearing at 23:18-24:10 (Court, Blenden, Childress), taken February 13, 2014 (“Tr.”).
Addressing the unlawful entry claim, the Defendants acknowledged that Brown and Rider were initially called to help Thompson get property from what may have been her property, but argued that their reasons for suspecting a more serious situation, such as domestic abuse, developed when they arrived at Ysasi’s property, because they saw a broken baby bed and broken baby swing, and Thompson did not want to talk to Brown or Rider about what happened, and pleaded with them to leave. See Tr. at 37:9-38:12 (Childress). The Defendants argued that, after Ysasi came outside and started screaming obscenities, Brown and Rider could enter Ysasi’s property to investigate the situation further. See Tr. at 38:12-16 (Childress). The Defendants conceded that Brown and Rider did not have probable cause to enter Ysa-si’s property based on the dispatch call and when they initially arrived at the scene, but argued that Brown and Rider did not need probable cause to enter Ysasi’s property and go up to his house. See Tr. at 38:17-39:16 (Court, Childress). The Defendants pointed out that Ysasi’s house was almost one-hundred yards away from his fence and argued that, when Ysasi refused to come over to the fence to talk to Brown and Rider, they could enter his property to talk to him. See Tr. at 40:18-41:3 (Childress). The Defendants cited United States v. Jones,
Ysasi argued that Manzanares v. Higdon,
The Defendants contended that, in some stand-by situations, officers would not have any reason to continue investigating after the person who requested the stand-by retrieved his or her property, but that, in this case, Thompson’s uncooperativeness and Ysasi’s yelling at Brown and Rider gave Brown and Rider reasonable justification to investigate further. See Tr. at 56:13-57:3 (Childress). The Defendants argued that, especially in situations that implicate potential domestic violence, officers need to investigate and, although they would not have probable cause to arrest someone without more information, they are justified in coming onto someone’s property to talk to him or her about the situation, and that should not lead to a viable civil rights claim. See Tr. at 57:3-17 (Childress).
Regarding the unlawful arrest claim, the Court noted that Ysasi asserted that Brown and Rider unlawfully arrested him in violation of the Fourth and Fifth Amendments; the Defendants argued that the Fifth Amendment would not apply to a false arrest claim, and the Court agreed. See Tr. at 60:6-14 (Court, Childress). The Defendants pointed out that Brown and Rider arrested Ysasi for battery of a police officer, based on the altercation between Ysasi and Rider, and for obstructing an officer, based on Ysasi refusing to tell Rider his name and other information after he was in the police car. See Tr. at 60:20-
Ysasi argued that his conduct leading to the obstruction of an officer charge — refusing to tell Brown and Rider his name— happened long after he was arrested following the altercation. See Tr. at 67:11-15 (Blenden). He contended that, because Thompson gave Brown and Rider his name, his refusal to tell Rider his name did not obstruct them. See Tr. at 69:2-6 (Blenden). Ysasi argued that one of the requirements for unlawful arrest described in Buck v. City of Albuquerque is a termination of the original action in favor of the plaintiff and that, in this case, the DA dismissed the charges against him. See Tr. at 69:10-18 (Blenden). Ysasi argued that issue preclusion should not bar the unlawful arrest claim and pointed the Court to the law he discussed in the Response. See Tr. at 69:6-9 (Blenden).
Because Judge Crenshaw found probable cause to bind Ysasi over for battery on a police officer, the Court stated that, unless it determined that issue preclusion bars the claim, it would probably allow the claim for unlawful arrest to go to the jury, because the evidence for obstructing a police officer occurred after the altercation, and a jury would need to determine if Brown and Rider had probable cause to arrest Ysasi for battery on a police officer. See Tr. at 71:8-20 (Court).
On Ysasi’s claim against the LCDC for an alleged Eighth Amendment violation, the Defendants argued that the Complaint listed a claim against LCDC for conspiracy, that Ysasi did not develop that theory during discovery, and, when the Defendants attached to the MSJ Memo, telephone records to show that Ysasi was allowed to call people before he was released, Ysasi did not respond, but then changed his claim to assert that he was held without bail or an arraignment for four days. See Tr. at 72:3-78:5 (Chil-dress). The Defendants said it has been difficult to determine what Ysasi’s claim is against the LCDC, but that they attached the Criminal Complaint, which shows that a Magistrate Judge made a probable cause finding the day after Ysasi was arrested and within the forty-eight hours that the Supreme Court requires. See Tr. at 73:5-15 (Childress). The Defendants argued that Ysasi did not explain his claim, did not cite any law to support it, and so, more than any of the other claims, have not had adequate notice of the claim. See Tr. at 73:20-74:5 (Childress). The Court asked Ysasi about his claim and whether the documents that the Defendants attached negate his claim; Ysasi stated that he was not allowed to bond out of jail for four days and that he did not think the fact that he was allowed to call his family related to the claim, but he admitted that he did not know if four days is an unreasonable time. See 75:10-76:9 (Court, Blenden). The Defendants explained that the notation at the bottom of the Criminal Complaint indicated that
LAW REGARDING SUMMARY JUDGMENT
Rule 56(a) of the Federal Rules of Civil Procedure states: “The 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). “The movant bears the initial burden of ‘showing] that there is an absence of evidence to support the non-moving party’s case.’ ” Herrera v. Santa Fe Pub. Schs.,
The party opposing a motion for summary judgment must “set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.” Applied Genetics Int’l, Inc. v. First Affiliated Sec., Inc.,
To deny a motion for summary judgment, genuine factual issues must exist that “can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc.,
When reviewing a motion for summary judgment, the court should keep in mind certain principles. First, the court’s role is not to weigh the evidence, but to assess the threshold issue whether a genuine issue exists as to material facts requiring a trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 249,
There are, however, limited circumstances in which the Court may disregard a party’s version of the facts. This doctrine developed most robustly in the quali
At the summary judgment stage, facts must be viewed in the light most favorable to the nonmoving party only if there is a “genuine” dispute as to those facts. Fed. Rule Civ. Proc. 56(c). As we have emphasized, “[w]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts .... Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’” Matsushita Elec. Industrial Co. v. Zenith Radio Corp.,475 U.S. 574 , 586-587,106 S.Ct. 1348 ,89 L.Ed.2d 538 (1986) (footnote omitted). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc.,477 U.S. 242 , 247-248,106 S.Ct. 2505 ,91 L.Ed.2d 202 (1986). When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.
That was the case here with regard to the factual issue whether respondent was driving in such fashion as to endanger human life. Respondent’s version of events is so utterly discredited by the record that no reasonable jury could have believed him. The Court of Appeals should not have relied on such visible fiction; it should have viewed the facts in the light depicted by the videotape.
The Tenth Circuit applied this doctrine in Thomson v. Salt Lake County,
[B]ecause at summary judgment we are beyond the pleading phase of the litigation, a plaintiffs version of the facts must find support in the record: more specifically, “[a]s with any motion for summary judgment, when opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts[.]” York v. City of Las Cruces,523 F.3d 1205 , 1210 (10th Cir.2008) (quoting Scott [v. Harris],550 U.S. at 380 ,127 S.Ct. 1769 ); see also Estate of Larsen ex. rel Sturdivan v. Murr,511 F.3d 1255 , 1258 (10th Cir.2008).
Thomson v. Salt Lake Cnty.,
In evaluating a motion for summary judgment based on qualified immunity, we take the facts “in the light most favorable to the party asserting the injury.” Scott v. Harris,550 U.S. 372 , 377,127 S.Ct. 1769 ,167 L.Ed.2d 686 (2007). “[T]his usually means adopting ... the plaintiffs version of the facts,” id. at 378,127 S.Ct. 1769 , unless that version “is so utterly discredited by the recordthat no reasonable jury could have believed him,” id. at 380, 127 S.Ct. 1769 . In Scott, the plaintiffs testimony was discredited by a videotape that completely contradicted his version of the events.550 U.S. at 379 ,127 S.Ct. 1769 . Here, there is no videotape or similar evidence in the record to blatantly contradict Mr. Rhoads’ testimony. There is only other witnesses’ testimony to oppose his version of the facts, and our judicial system leaves credibility determinations to the jury. And given the undisputed fact of injury, Mr. Rhoads’ alcoholism and memory problems go to the weight of his testimony, not its admissibility ... Mr. Rhoads alleges that his injuries resulted from a beating rendered without resistance or provocation. If believed by the jury, the events he describes are sufficient to support a claim of violation of clearly established law under Graham v. Connor,490 U.S. 386 , 395-96,109 S.Ct. 1865 ,104 L.Ed.2d 443 (1989), and this court’s precedent.
Rhoads v. Miller,
LAW REGARDING 42 U.S.C. § 1983
Section 1983 of Title 42 of the United States Code provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ..., subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress,....
42 U.S.C. § 1983. Section 1983 creates only the right of action; it does not create any substantive rights; substantive rights must come from the Constitution or federal statute. See Spielman v. Hildebrand,
must establish (1) a violation of rights protected by the federal Constitution or created by federal statute or regulation, (2) proximately caused (3) by the conduct of a “person” (4) who acted under color of any statute, ordinance, regulation, custom[,] or usage, of any State or Territory or the District of Columbia.
Martinez v. Martinez, No. CIV 09-0281 JB/KBM,
The Supreme Court of the United States has made clear that there is no respondeat superior liability under § 1983. See Ashcroft v. Iqbal,
Liability requires a showing that such policies were a “deliberate or conscious choice.” Barney v. Pulsipher,
In a “narrow range of circumstances,” however, deliberate indifference may be found absent a pattern of unconstitutional behavior if a violation of federal rights is a “highly predictable” or “plainly obvious” consequence of a municipality’s action or inaction, such as when a municipality fails to train an employee in specific skills needed to handle recurring situations, thus presenting an obvious potential for constitutional violations.
Barney v. Pulsipher,
RELEVANT LAW REGARDING FOURTH AMENDMENT SEARCHES
The Fourth Amendment to the Constitution of the United States of America protects “[tjhe right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches
“Not all searches require a warrant. The hallmark of the Fourth Amendment is reasonableness.” United States v. Harmon,
1. United States v. Jones.
The defendant in United States v. Jones was suspected of drug trafficking, and a joint Federal Bureau of Investigation and District of Columbia Metropolitan Police Department task force obtained a warrant authorizing installation in Washington, D.C., within ten days, of a Global Positioning System device to the defendant’s car. See
The Honorable Antonin G. Scalia, Associate Justice of the Supreme Court, writing for the majority, in which Chief Justice Roberts and Justices Kennedy, Thomas, and Sotomayor joined, held that “the Government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search.’ ”
Justice Scalia reasoned that the Fourth Amendment’s text supports taking a property law based approach to determine whether there is a search, but did not shy away from the fact that, in recent history, the Supreme Court had deviated from this approach:
The text of the Fourth Amendment reflects its close connection to property, since otherwise it would have referred simply to “the right of the people to be secure against unreasonable searches and seizures”; the phrase “in their persons, houses, papers, and effects” would have been superfluous.
Consistent with this understanding, our Fourth Amendment jurisprudence was tied to common-law trespass, at least until the latter half of the 20th century. Kyllo v. United States, 533 U.S. [at] 31,121 S.Ct. 2038 .... Our later cases, of course, have deviated from that exclusively property-based approach .... [and] have applied the analysis of Justice Harlan’s concurrence in [Katz v. United States], which said that a violation occurs when government officers violate a person’s “reasonable expectation of privacy,” id., at 360,88 S.Ct. 507 ....
The United States had contended that, under the “Harlan standard” — i.e., the Katz v. United States reasonable-expeetation-of-privacy approach — “no search occurred here, since Jones had ‘no reasonable expectation of privacy’ in the area of the Jeep accessed by the Government agents (its underbody) and in the locations of the jeep on the public roads, which were visible to all.”
Jones’s Fourth Amendment rights do not rise or fall with the Katz formulation. At bottom, we must “assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” Kyllo[ v. United States,533 U.S. at 34 ],121 S.Ct. 2038 . As explained, for most of our history the Fourth Amendment was understood to embody a particular concern for government trespass upon the areas (“persons, houses, papers, and effects”) it enumerates. Katz did not repudiate that understanding. Less than two years later the Court upheld defendants’ contention that the Government could not introduce against them conversations between other people obtained by warrantless placement of electronic surveillance devices in their homes. The opinion rejected the dissent’s contention that there was no Fourth Amendment violation “unless the conversational privacy of the homeowner himself is invaded.” Alderman v. United States, 394 U.S. 165 , 176,89 S.Ct. 961 ,22 L.Ed.2d 176 (1969). “[W]e [do not] believe that Katz, by holding that the Fourth Amendment protects persons and their private conversations, was intended to withdraw any of the protection which the Amendment extends to the home .... ” Id., at 180,89 S.Ct. 961 .
In her concurrence, Justice Sotomayor agreed that “the trespassory test applied in the majority’s opinion reflects an irreducible constitutional minimum: When the Government physically invades personal property to gather information, a search occurs. The reaffirmation of that principle suffices to decide this case.”
Of course, the Fourth Amendment is not concerned only with trespassory intrusions on property. See, e.g., Kyllo v. United States, 533 U.S. [at] 31-33,121 S.Ct. 2038 .... Rather, even in the absence of a trespass, “a Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable.” Id., at 33,121 S.Ct. 2038 ; see also Smith v. Maryland,442 U.S. 735 , 740-741,99 S.Ct. 2577 ,61 L.Ed.2d 220 (1979); Katz v. United States, 389 U.S. [at] 361,88 S.Ct. 507 ... (Harlan, J., concurring).
physical intrusion is now unnecessary to many forms of surveillance.... In cases of electronic or other novel modes of surveillance that do not depend upon a physical invasion on property, the majority opinion’s trespassory test may provide little guidance. But “[situations involving merely the transmission of electronic signals without trespass would remain subject to Katz analysis.”
The Honorable Samuel A. Alito, Associate Justice, joined by Justices Ginsburg, Breyer, and Kagan, concurred in the judgment only, reasoning that, although he agreed with the result, given the use of twenty-first century technology, he would have analyzed whether the government’s long-term monitoring of the defendant violated the Katz v. United States reasonable-expectation-of-privacy test:
This case requires us to apply the Fourth Amendment’s prohibition of unreasonable searches and seizures to a 21st-century surveillance technique, the use of a Global Positioning System (GPS) device to monitor a vehicle’s movements for an extended period of time. Ironically, the Court has chosen to decide this case based on 18th-centu-ry tort law. By attaching a small GPS device to the underside of the vehicle that respondent drove, the law enforcement officers in this case engaged in conduct that might have provided grounds in 1791 for a suit for trespass to chattels. And for this reason, the Court concludes, the installation and use of the GPS device constituted a search. [132 S.Ct.] at 948-949.
This holding, in my judgment, is unwise. It strains the language of the Fourth Amendment; it has little if any support in current Fourth Amendment case law; and it is highly artificial.
I would analyze the question presented in this case by asking whether respondent’s reasonable expectations of privacy were violated by the long-term monitoring of the movements of the vehicle he drove.
Justice Alito contended that the majority’s opinion suggests that “the concept of a search, as originally understood, comprehended any technical trespass that led to the gathering of evidence,” but disagreed with the majority, stating: “[W]e know this is incorrect.”
Justice Alito asserted that the trespass-based approach that the majority used was “repeatedly criticized” and ultimately “repudiated,” based largely on its incompatibility with cases involving wiretapping and eavesdropping surveillance. United States v. Jones,
2. Florida v. Jardines.
In Florida v. Jardines, — U.S. -,
In Florida v. Jardines, based on a tip that the defendant, Jardines, was growing marijuana in his home, the Miami-Dade, Florida, police department and the Drug Enforcement Administration sent a surveillance team to Jardines’ home. See
Justice Scalia held that the use of a drug-sniffing dog was a Fourth Amendment search, reasoning:
[T]his case [is] a straightforward one. The officers were gathering information in an area belonging to Jardines and immediately surrounding his house — in the curtilage of the house, which we have held enjoys protection as part of the home itself. And they gathered that information by physically entering and occupying the area to engage in conduct not explicitly or implicitly permitted by the homeowner.
Justice Scalia held that “the officers’ investigation took place in a constitutionally protected area,” the home, as the front porch is the home’s curtilage. See
While law enforcement officers need not “shield their eyes” when passing by the home “on public thoroughfares,” [California v. Ciraolo,476 U.S. 207 , 213,106 S.Ct. 1809 ,90 L.Ed.2d 210 (1986) ], an officer’s leave to gather information is sharply circumscribed when he steps off those thoroughfares and enters the Fourth Amendment’s protected areas. In permitting, for example, visual observation of the home from “public navigable airspace,” we were careful to note that it was done “in a physically nonin-trusive manner.” Id. Entick v. Carrington, 2 Wils. K.B. 275, 95 Eng. Rep.807 (K.B.1765), a case “undoubtedly familiar” to “every American statesman” at the time of the Founding, Boyd v. United States, 116 U.S. 616 , 626,6 S.Ct. 524 ,29 L.Ed. 746 (1886)[, abrogated by Warden, Md. Penitentiary v. Hayden,387 U.S. 294 ,87 S.Ct. 1642 ,18 L.Ed.2d 782 (1967) ], states the general rule clearly: “[0]ur law holds the property of every man so sacred, that no man can set his foot upon his neighbor’s close without his leave.” 2 Wils. K.B., at 291. As it is undisputed that the detectives had all four of their feet and all four of their companion’s firmly planted on the constitutionally protected extension of Jardines’ home, the only question is whether he had given his leave (even implicitly) for them to do so. He had not.
An invitation to engage in canine forensic investigation assuredly does not inhere in the very act of hanging a knocker. To find a visitor knocking on the door is routine (even if sometimes unwelcome); to spot that same visitor exploring the front path with a metal detector, or marching his bloodhound into the garden before saying hello and asking permission, would inspire most of us to — well, call the police. The scope of a license — express or implied — is limited not only to a particular area but also to a specific purpose. Consent at a traffic stop to an officer’s checking out an anonymous tip that there is a body in the trunk does not permit the officer to rummage through the trunk for narcotics. Here, the background social norms that invite a visitor to the front door do not invite him there to conduct a search.
The State of Florida argued “that investigation by a forensic narcotics dog by definition cannot implicate any legitimate privacy interest.”
Thus, we need not decide whether the officers’ investigation of Jardines’ home violated his expectation of privacy under Katz. One virtue of the Fourth Amendment’s property-rights baseline is that it keeps easy cases easy. That the officers learned what they learned only by physically intruding on Jardines’ property to gather evidence is enough to establish that a search occurred.
The Honorable Elena Kagan, Associate Justice, wrote a concurring opinion, noting: “The Court today treats this case under a property rubric; I write separately to note that I could just as happily have decided it by looking to Jardines’ privacy interests.”
That case is this case in every way that matters. Here, police officers came to Joelis Jardines’ door with a super-sensitive instrument, which they deployed to detect things inside that they could not perceive unassisted. The equipment they used was animal, not mineral. But contra the dissent, see [133 S.Ct.] at 1420 (opinion of Alito, J.)(noting the ubiquity of dogs in American households), that is of no significance in determining whether a search occurred.
[a] decision along those lines would'have looked ... well, much like this one. It would have talked about “ ‘the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.’ ” [133 S.Ct.] at 1414 (quoting Silverman v. United States,365 U.S. 505 , 511,81 S.Ct. 679 ,5 L.Ed.2d 734 (1961)). It would have insisted on maintaining the “practical value” of that right by preventing police officers from standing in an adjacent space and “trawl[ing] for evidence with impunity.” [133 S.Ct.] at 1414. It would have explained that “ ‘privacy expectations are most heightened’ ” in the home and the surrounding area. [133 S.Ct.] at 1414-15 (quoting California v. Ciraolo, 476 U.S. [at] 213,106 S.Ct. 1809 ...). And it would have determined that police officers invade those shared expectations when they use trained canine assistants to reveal within the confines of a home what they could not otherwise have found there. See [133 S.Ct.] at 1415-16, and n. 2-3.
Justice Alito’s dissenting opinion, in which Chief Justice Roberts, and Justices Kennedy and Breyer, joined, submitted that “[t]he Court’s decision in this important Fourth Amendment case is based on a putative rule of trespass law that is nowhere to be found in the annals of Anglo-American jurisprudence.”
Justice Alito contended that the majority’s opinion that the detective “exceeded the boundaries of the license to approach the house that is recognized by the law of trespass, ... is unfounded.”
[w]hat the Court must fall back on, then, is the particular instrument that Detective Bartelt used to detect the odor of marijuana, namely, his dog. But in the entire body of common-law decisions, the Court has not found a single case holding that a visitor to the front door of a home commits a trespass if the visitor is accompanied by a dog on a leash. On the contrary, the common law allowed even unleashed dogs to wander on private property without committing a trespass.
The Court responds that “[i]t is not the dog that is the problem, but the behavior that here involved use of the dog.” But where is the support in the law of trespass for this proposition? Dogs’ keen sense of smell has been used in law enforcement for centuries. The antiquity of this practice is evidenced by a Scottish law from 1318 that made it a crime to “disturb a tracking dog or the men coming with it for pursuing thieves or seizing malefactors.” If bringing a tracking dog to the front door of a home constituted a trespass, one would expect at least one case to have arisen during the past 800 years. But the Court has found none.
Justice Alito did not look any more favorably upon Justice Kagan’s conclusion that Bartelt’s conduct violated Jardines’ reasonable privacy expectations, asserting:
[W]e have already rejected a very similar, if not identical argument, see Illinois v. Caballes, ... and in any event I see no basis for concluding that the occupants of a dwelling have a reasonable expectation of privacy in odors that emanate from the dwelling and reach spots where members of the public may lawfully stand.
3. Standing.
The Tenth Circuit has referred to the test whether a particular search implicates a defendant’s Fourth Amendment interests — whether the search violates the defendant’s reasonable privacy expectation — as one of “standing.” E.g., United States v. Creighton,
In Rakas v. Illinois,
Had we accepted petitioners’ request to allow persons other than those whose own Fourth Amendment rights were violated by a challenged search and seizure to suppress evidence obtained in the course of such police activity, it would be appropriate to retain Jones[ v. United States,362 U.S. 257 ,80 S.Ct. 725 ,4 L.Ed.2d 697 (1960), overruled by United States v. Salvucci,448 U.S. 83 ,100 S.Ct. 2547 ,65 L.Ed.2d 619 (1980) ]’ use of standing in Fourth Amendment analysis. Under petitioners’ target theory, a court could determine that a defendant had standing to invoke the exclusionary rule without having to inquire into the substantive question of whether the challenged search or seizure violated the Fourth Amendment rights of that particular defendant. However, having rejected petitioners’ target theory and reaffirmed the principle that the “rights assured by the Fourth Amendment are personal rights, [which] ... may be enforced by exclusion of evidence only at the instance of one whose own protection was infringed by the search and seizure,” Simmons v. United States, 390 U.S. [377] at 389,88 S.Ct. 967 [19 L.Ed.2d 1247 (1968) ] ..., the question necessarily arises whether it serves any useful analytical purpose to consider this principle a matter of standing, distinct from the merits of a defendant’s Fourth Amendment claim. We can think of no decided cases of this Court that would have come out differently had we concluded, as we do now, that the type of standing requirement discussed in Jones and reaffirmed today is more properly subsumed under substantive Fourth Amendment doctrine. Rigorous application of the principle that the rights secured by this Amendment are personal, in place of a notion of “standing,” will produce no additional situations in which evidence must be excluded. The inquiry under either approach is the same. But we think the better analysis forthrightly focuses on the extent of a particular defendant’s rights under the Fourth Amendment, rather than on any theoretically separate, but invariably intertwined concept of standing. The Court in Jones also may have been aware that there was a certain artificiality in analyzing this question in terms of standing because in at least three separate places in its opinion the Court placed that term within quotation marks.362 U.S., at 261, 263, 265 ,80 S.Ct. 725 ....
[N]othing we say here casts the least doubt on cases which recognize ... as a general proposition, the issue of standing [generally.] ... But this Court’s long history of insistence that Fourth Amendment rights are personal in nature has already answered many of these traditional standing inquiries, and we think that definition of those rights is more properly placed within the purview of substantive Fourth Amendment law than within that of standing.
The Minnesota courts analyzed whether respondents had a legitimate expectation of privacy under the rubric of “standing” doctrine, an analysis that this Court expressly rejected 20 years ago in Rakas .... Central to our analysis [in Rakas v. Illinois] was the idea that in determining whether a defendant is able to show the violation of his (and not someone else’s) Fourth Amendment rights, the “definition of those rights is more properly placed within the purview of substantive Fourth Amendment law than within that of standing.” Id., at 140,99 S.Ct. 421 ....
Rigorous application of the principle that the rights secured by this Amendment are personal, in place of a notion of “standing,” will produce no additional situations in which evidence must be excluded. But we think the better analysis forthrightly focuses on the extent of a particular defendant’s rights under the Fourth Amendment, rather than on any theoretically separate, but invariably intertwined concept of standing.
Rakas v. Illinois,
4. Whether a Fourth Amendment Search Occurred.
A Fourth Amendment search occurs either where the government, to obtain information, trespasses on a person’s property or where the government violates a person’s subjective expectation of privacy that society recognizes as reasonable to collect information. See United States v. Jones,
a. Trespass-Based Analysis.
The Fourth Amendment “establishes a simple baseline, one that for much of our history formed the exclusive basis for its protections: When ‘the Government obtains information by physically intruding’ on persons, houses, papers, or effects, ‘a ‘search’ within the original meaning of the Fourth Amendment’ has ‘undoubtedly occurred.’ ” Florida v. Jardines,
In determining whether a search has occurred, “[t]resspass alone does not qualify, but there must be conjoined with that ... an attempt to find something or to obtain information.” United States v. Jones,
The Fourth Amendment “indicates with some precision the places and things encompassed by its protections”: persons, houses, papers, and effects. The Fourth Amendment does not, therefore, prevent all investigations conducted on private property; for example, an officer may (subject to Katz) gather information in what we have called “open fields” — even if those fields are privately owned — because such fields are not enumerated in the Amendment’s text.... But when it comes to the Fourth Amendment, the home is first among equals.
In United States v. Alabi,
When a law enforcement officer sees only the exterior of a credit or debit card, however, given that the financial institution which issues the card places the same information on the magnetic strip as embossed on the card’s exterior, the only instances in which the information inside the credit or debit card is not information already seen by and known to the officer is when the information has been reencoded for unlawful purposes. In these instances, not only does the person asserting his or her Fourth Amendment right not own or otherwise lawfully possess the information contained inside the card on the magnetic strip, but the person has stolen the information with the intent to use that information to steal further from the person whose information is on the magnetic strip. Protecting this area from law enforcement search and seizure would thus not further the Fourth Amendment’s express purpose of protecting “[t]he right of the people to be secure in their persons, houses, papers, and effects .... ” U.S. Const, amend IV.
The Court has noted that, in light of the Supreme Court’s recent decisions in Florida v. Jardines and United States v. Jones, both of which Justice Scalia wrote for the majority, and both of which analyze whether government conduct constituted a Fourth Amendment search using the trespass-based approach, “the question arises whether the Katz v. United States reasonable-expectation-of-privacy test is still good law.” United States v. Alabi,
In my view, the only thing the past three decades have established about the Katz test (which has come to mean the test enunciated by Justice Harlan’s separate concurrence in Katz ...) is that, unsurprisingly, those “actual (subjective) expectation^] of privacy” “that society is prepared to recognize as ‘reasonable,’ ” bear an uncanny resemblance to those expectations of privacy that this Court considers reasonable. When that self-indulgent test is employed (as the dissent would employ it here) to determine whether a “search or seizure” within the meaning of the Constitution has occurred (as opposed to whether that “search or seizure” is an “unreasonable” one), it has no plausible foundation in the text of the Fourth Amendment. That provision did not guarantee some generalized “right of privacy” and leave it to this Court to determine which particular manifestations of the value of privacy “society is prepared to recognize as ‘reasonable.’ ” Rather, it enumerated (“persons, houses, papers, and effects”) the objects of privacy protection to which the Constitution would extend, leaving further expansion to the good judgment, not of this Court, but of the people through their representatives in the legislature.
Minnesota v. Carter,
In June, 2013, Justice Scalia dissented from the Supreme Court’s decision in Maryland v. King, — U.S. -,
We are told that the “privacy-related concerns” in the search of a home “are weighty enough that the search may require a warrant, notwithstanding the diminished expectations of privacy of the arrestee.” But why are the “privacy-related concerns” not also “weighty” when an intrusion into the body is at stake? (The Fourth Amendment lists “persons” first among the entities protected against unreasonable searches and seizures.)
Maryland v. King,
Today’s judgment will, to be sure, have the beneficial effect of solving more crimes; then again, so would the taking of DNA samples from anyone who flies on an airplane (surely the Transportation Security Administration needs to know the “identity” of the flying public), applies for a driver’s license, or attends a public school. Perhaps the construction of such a genetic panopticon is wise. But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.
Maryland v. King,
c. Katz v. United States’ Reasonable-Expectations-of-Privacy Analysis.
“ ‘Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted.’ ” Raleas v. Illinois,
“Official conduct that does not ‘compromise any legitimate interest in privacy is not a search subject to the Fourth Amendment.” Illinois v. Caballes,
In assessing when a search is not a search, we have applied somewhat in reverse the principle first enunciated in Katz v. United States. Katz involved eavesdropping by means of an electronic listening device placed on the outside of a telephone booth — a location not within the catalog (“persons, houses, papers, and effects”) that the Fourth Amendment protects against unreasonable searches. We held that the Fourth Amendment nonetheless protected Katz from the warrantless eavesdropping because he “justifiably relied” upon theprivacy of the telephone booth. As Justice Harlan’s oft-quoted concurrence described it, a Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable.
Kyllo v. United States, 533 U.S. at 32-33,
A “reasonable expectation of privacy” is “said to be an expectation ‘that has a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.’ ” United States v. Jones,
i. Subjective Expectation of Privacy.
A defendant maintains a subjective expectation of privacy when the defendant “has shown that ‘he sought to preserve something as private.’” Bond v. United States,
This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.
United States v. Miller,
The Supreme Court has recognized, however, that subjective expectations of privacy do not always coincide with the interests that the Fourth Amendment is universally thought to protect. In Smith v. Maryland, for instance, the Supreme Court identified situations in which it would not follow the subjective approach:
Situations can be imagined, of course, in which Katz’ two-pronged inquiry would provide an inadequate index of Fourth Amendment protection. For example, if the Government were suddenly to announce on nationwide television that all homes henceforth would be subject to warrantless entry, individuals thereafter might not in fact entertain any actual expectation or [sic] privacy regarding their homes, papers, and effects. Similarly, if a refugee from a totalitarian country, unaware of this Nation’s traditions, erroneously assumed that police were continuously monitoring his telephone conversations, a subjective expectation of privacy regarding the contents of his calls might be lacking as well. In such circumstances, where an individual’s subjective expectations had been “conditioned” by influences alien to well-recognized Fourth Amendment freedoms, those subjective expectations obviously could play no meaningful role in ascertaining what the scope of Fourth Amendment protection was. In determining whether a “legitimate expectation of privacy” existed in such cases, a normative inquiry would be proper.
[I]t may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers.25 Perhaps, as Justice Alito notes, some people may find the “tradeoff” of privacy for convenience “worthwhile,” or come to accept this “diminution of privacy” as “inevitable,” and perhaps not. I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year. But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy. I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disen-titled to Fourth Amendment protection.
Under the second step of Katz v. United States’ reasonable-expectation-of-privacy approach, courts must determine “whether society is prepared to recognize that [subjective privacy] expectation as objectively reasonable.” United States v. Ruiz,
No single factor determines whether an individual legitimately may claim under the Fourth Amendment that a place should be free of government intrusion not authorized by warrant. In assessing the degree to which a search infringes upon individual privacy, the Court has given weight to such factors as the intention of the Framers of the Fourth Amendment, the uses to which the individual has put a location, and our societal understanding that certain areas deserve the most scrupulous protection from government invasion.
Oliver v. United States,
The Supreme Court has held that “[o]ffi-cial conduct that does not ‘compromise any legitimate interest in privacy’ is not a search subject to the Fourth Amendment.” Illinois v. Caballes,
We have affirmed that a person possesses a privacy interest in the contents of personal luggage that is protected by the Fourth Amendment. A “canine sniff” by a well-trained narcotics detection dog, however, does not require opening the luggage. It does not expose noncontraband items that otherwise would remain hidden from public view, as does, for example, an officer’s rummaging through the contents of the luggage. Thus, the manner in which information is obtained through this investigative technique is much less intrusive than a typical search. Moreover, the sniff discloses only the presence or absence of narcotics, a contraband item. Thus, despite the fact that the sniff tells the authorities something about the contents of the luggage, the information obtained is limited. This limited disclosure also ensures that the owner of the property is not subjected to the embarrassment and inconvenience entailed in less discriminate and more intrusive investigative methods.
In these respects, the canine sniff is sui generis. We are aware of no other investigative procedure that is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure. Therefore, we conclude that the particular course of investigation that the agents intended to pursue here— exposure of respondent’s luggage, which was located in a public place, to a trained canine — did not constitute a “search” within the meaning of the Fourth Amendment.
In United States v. Jacobsen, the Supreme Court extended this holding to the chemical field test of a white powdery substance to reveal that the substance was cocaine. See
The removal of the plastic bags from the tube and the agent’s visual inspection of their contents enabled the agent to learn nothing that had not previously been learned during the private search. It infringed no legitimate expectation of privacy and hence was not a “search” within the meaning of the Fourth Amendment.
The field test at issue could disclose only one fact previously unknown to the agent — whether or not a suspicious white powder was cocaine. It could tell him nothing more, not even whether the substance was sugar or talcum powder. We must first determine whether this can be considered a “search” subject to the Fourth Amendment — did it infringe an expectation of privacy that society is prepared to consider reasonable?
A chemical test that merely discloses whether or not a particular substance is cocaine does not compromise any legitimate interest in privacy. This conclusion is not dependent on the result of any particular test. It is probably safe to assume that virtually all of the tests conducted under circumstances comparable to those disclosed by this record would result in a positive finding; in such cases, no legitimate interest has been compromised. But even if the results are negative — merely disclosing that the substance is something other than cocaine — such a result reveals nothing of special interest. Congress has decided — and there is no question about its power to do so — to treat the interest in “privately” possessing cocaine as illegitimate; thus governmental conduct that can reveal whether a substance is cocaine, and no other arguably “private” fact, compromises no legitimate privacy interest.
Here, as in Place, the likelihood that official conduct of the kind disclosed by the record will actually compromise any legitimate interest in privacy seems much too remote to characterize the testing as a search subject to the Fourth Amendment.
United States v. Jacobsen,
Most recently, where a “dog sniff was performed on the exterior of respondent’s car while he was lawfully seized for a traffic violation,” the Supreme Court, again relying on United States v. Place and also on United States v. Jacobsen, held that “[a]ny intrusion on respondent’s privacy expectations does not rise to the level of a constitutionally cognizable infringement.” Illinois v. Caballes,
This conclusion is entirely consistent with our recent decision that the use of a thermal-imaging device to detect the growth of marijuana in a home constituted an unlawful search. Kyllo v. United States,533 U.S. 27 ,121 S.Ct. 2038 ,150 L.Ed.2d 94 (2001) .... Critical to that decision was the fact that the device was capable of detecting lawful activity — in that ease, intimate details in a home, such as “at what hour each night the lady of the house takes her daily sauna and bath.” Id, at 38,121 S.Ct. 2038 .... The legitimate expectation that information about perfectly lawful activity will remain private is categorically distinguishable from respondent’s hopes or expectations concerning the nondetection of contraband in the trunk of his car. A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment.
Illinois v. Caballes,
In United States v. Alabi, the defendants possessed thirty-one credit and debit cards, “many of them in their own names, several of which had information on the magnetic strips that related to persons other than the Defendants.”
5. Reasonable Government Searches.
“[B]ecause ‘the ultimate touchstone of the Fourth Amendment is reasonableness,’ ” when a search implicating the Fourth Amendment has occurred, the district court must determine whether the search is reasonable. Kentucky v. King,
“Whether a search is reasonable ‘is determined by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.’ ” Samson v. California,
As the text of the Fourth Amendment indicates, the ultimate measure of the constitutionality of a governmental search is “reasonableness.” At least in a case ... where there was no clear practice, either approving or disapproving the type of search at issue, at the time the constitutional provision was enacted, whether a particular search meets the reasonableness standard “ ‘is judged by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.’ ”
Vernonia Sch. Dist. 47J v. Acton,
The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case [determining reasonableness] requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.
Bell v. Wolfish,
In analyzing the first factor — the intrusion on the individual’s privacy— courts and the Tenth Circuit look to the individual’s privacy expectations. See, e.g., United States v. Knights,
As Justice Kagan has noted, property law informs society’s expectations about what government intrusions are reasonable: “It is not surprising that in a case involving a search of a home, property concepts and privacy concepts should so align. The law of property ‘naturally enough influenee[s]’ our ‘shared social expectations’ of what places should be free from governmental incursions.” Florida v. Jardines,
6. Consensual Searches.
Searches conducted pursuant to consent constitute one exception to the Fourth Amendment’s search-warrant and probable-cause requirements. See Schneckloth v. Bustamonte,
Determining whether a party’s consent was free and voluntary is a question of fact to be determined from the totality of the circumstances. See United States v. Peña,
(i) the “threatening presence of several officers;” (ii) the “use of aggressive language or tone of voice indicating that compliance with an officer’s request is compulsory,” or, conversely, the “officer’s pleasant manner and [] tone of voice;” (iii) the “prolonged retention of a person’s personal effects such as identification,” or, conversely, “the prompt return of the defendant’s identification and papers;” the “absence of other members of the public,” or, conversely, whether the stop occurs in “a public location such as ‘the shoulder of an interstate highway, in public view;’ ” (v) the “officer’s failure to advise the defendant that [he or] she is free to leave.” United States v. Ledesma, 447 F.3d [1307,] 1314 [ (10th Cir.1997) ] (citing and quoting numerous sources). Other factors include: (vi) “the display of a weapon, [and (vii) ] physical touching by the officer.” United States v. Anderson,114 F.3d 1059 , 1064 (10th Cir.1997).
United States v. Sedillo, No. CR 08-1419 JB,
Because courts are required to look at the totality of the circumstances in determining whether an individual’s consent was voluntary, see United States v. Peña,
7. Legal Standard for Probable Cause in an Affidavit in Support of a Warrant.
Probable cause must support a search warrant, which requires “more than mere suspicion but less evidence than is necessary to convict.” United States v. Burns,
is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.
United States v. Reed,
“A reviewing court should accord great deference to a magistrate’s determination of probable cause.” United States v. Reed,
The deference accorded a magistrate judge’s probable cause determination, however, is not boundless. See United States v. Leon,
8. The Particularity Requirement for Search Warrants.
The Supreme Court has stated that “those searches deemed necessary should be as limited as possible.” Coolidge v. New Hampshire,
In Cassady v. Goering, the search warrant authorized the search of the plaintiffs entire farm, including his house, and the seizure of “[a]ny & all narcotics,” “[a]ny and all illegal contraband,” and various specific items mostly related to a narcotics operation, as well as the search and seizure of “all other evidence of criminal activity” and all personal property that was stolen, embezzled, or otherwise illegal.
9. Warrantless Searches of Homes.
“[T]he warrantless entry of the home is ‘the chief evil against which ... the Fourth Amendment is directed.’ ” United States v. Lowe,
a. Curtilage.
In United States v. Dunn, the Supreme Court articulated four factors that should be used when determining whether an area is within the curtilage of a house for Fourth Amendment purposes. These factors are
the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by.
b. Consent.
A warrantless search is constitutional if consent is given for the search. Consent to a search must be unequivocal, specific, and freely given. See United
One strategy to gain consent to a search is a knock and talk, and the knock and talk itself is not a search. “[P]olice officers do not engage in a search when they approach the front door of a residence and seek to engage in what is termed a ‘knock and talk,’ ie., knocking on the door and seeking to speak to an occupant for the purpose of gathering evidence.” Florida v. Jardines,
When law enforcement officers who are not armed with a warrant knock on a door, they do no more than any private citizen might do. And whether the person who knocks on the door and requests the opportunity to speak is a police officer or a private citizen, the occupant has no obligation to open the door or to speak.
Kentucky v. King, — U.S.-,
c. Exigent Circumstances.
A warrantless search of a home can also be constitutional when there are exigent circumstances. For exigent circumstances regarding safety to justify a warrantless search of a home: “(1) the officers [must have] had an objectively reasonable basis to believe that there was an immediate need to enter to protect the safety of themselves or others, and (2) the conduct of the entry [must have been] reasonable.” United States v. Reeves,
LAW REGARDING UNLAWFUL ARREST
“A police officer violates an ar-restee’s clearly established Fourth Amendment right to be free of unreasonable seizure if the officer makes a warrantless arrest without probable cause.” Olsen v. Layton Hills Mall,
The principal components of a determination of reasonable suspicion or probable
cause will be the events which occurred leading up to the stop or search, and then the decision whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion or to probable cause. The first part of the analysis involves only a determination of historical facts, but the second is a mixed question of law and fact: “[T]he historical facts are admitted or established, the rule of law is undisputed, and the issue is whether the facts satisfy the [relevant] statutory [or constitutional] standard, or to put it another way, whether the rule of law as applied to the established facts is or is not violated.”
Ornelas v. United States,
The Tenth Circuit has explained that a plaintiff alleging that the “government has unconstitutionally imprisoned him has at least two potential constitutional claims: ‘The initial seizure is governed by the Fourth Amendment, but at some point after arrest, and certainly by the time of trial, constitutional analysis shifts to the Due Process Clause.’ ” Mondragon v. Thompson,
What separates the two claims? — the institution of legal process. Unreasonable seizures imposed without legal process precipitate Fourth Amendment false imprisonment claims. See Wallace[ v. Kato], 549 U.S. [384,] 389,127 S.Ct. 1091 [166 L.Ed.2d 973 (2007)] (concluding that false imprisonment was the proper analogy where defendants did not have a warrant for the plaintiffs arrest and thus detention occurred without legal process). Unreasonable seizures imposed with legal process precipitate Fourth Amendment malicious-prosecution claims. See Heck[ v. Humphrey], 512 U.S. [477,] 484,114 S.Ct. 2364 [129 L.Ed.2d 383 (1994)] (where detention occurs with legal process the “common-law cause of action for malicious prosecution provides the closest analogy”). Like rain and snow, the claims emanate from the same source, but under different conditions.
LAW REGARDING COLLATERAL ES-TOPPEL AND STATE CRIMINAL JUDGMENTS
In Allen v. McCurry,
Whether the doctrine of collateral estoppel should be applied is within the trial court’s discretion, and the exercise of discretion is reviewed for an abuse of discretion on appeal. See Shovelin v. Cent. N.M. Elec. Coop.,
LAW REGARDING POST-ARREST DETENTION
In the context of a warrantless arrest, “a policeman’s on-the-scene assessment of probable cause provides legal justification for arresting a person suspected of crime, and for a brief period of detention to take the administrative steps incident to arrest.” Gerstein v. Pugh,
In Gerstein v. Pugh, the plaintiffs challenged Florida’s procedures whereby “a person arrested without a warrant and charged by information may be
There no longer is any danger that the suspect will escape or commit further crimes while the police submit their evidence to a magistrate. And, while the State’s reasons for taking summary action subside, the suspect’s need for a neutral determination of probable cause increases significantly. The consequences of prolonged detention may be more serious than the interference occasioned by arrest. Pretrial confinement may imperil the suspect’s job, interrupt his source of income, and impair his family relationships. Even pretrial release may be accompanied by burdensome conditions that effect a significant restraint of liberty. When the stakes are this high, the detached judgment of a neutral magistrate is essential if the Fourth Amendment is to furnish meaningful protection from unfounded interference with liberty.
In County of Riverside v. McLaughlin, the Supreme Court determined what constituted a “prompt” determination of probable cause.
In Vondrak v. City of Las Cruces, No. CIV-05-0172 JB/LFG,
LAW REGARDING JURY INSTRUCTIONS
With regard to jury instructions, the Tenth Circuit has held: “We do not require perfection, but we must be satisfied that, upon hearing the instructions, the jury understood the issues to be resolved and its duty to resolve them.” Gonzales v. Duran,
In cases where the district court has given a legally erroneous jury instruction, and where the jury might have based its verdict thereon, prejudice exists, and reversal is required. See Adams-Arapahoe Joint Sch. Dist. No. 28-J v. Cont’l Ins. Co.,
Most recently, the Tenth Circuit explained further that “[t]he might have
Level 3 Communications, LLC v. Liebert Corp. involved a contract dispute where the district court instructed the jury that the contract at issue was not ambiguous as a matter of law. See
In contrast to both Wankier v. Crown Equipment Corp. and Level 3 Communications, LLC v. Liebert Corp., the Tenth Circuit has found reversal was not required despite erroneous instructions. In Sherouse v. Ratchner,
The Tenth Circuit similarly declined to reverse the district court’s judgment despite a legally erroneous jury instruction in Gonzales v. Duran,
ANALYSIS
The Defendants move for summary judgment on all of Ysasi’s claims, except
I. THE COURT WILL NOT GRANT THE MSJ ON THE UNLAWFUL ENTRY CLAIM, BECAUSE THE KNOCK-AND-TALK INVESTIGATIVE STRATEGY DID NOT JUSTIFY THE OFFICERS’ PRESENCE ON YSASI’S PROPERTY, BECAUSE IT IS DISPUTED WHETHER YSASI GAVE THE OFFICERS CONSENT TO ENTER AND REMAIN ON HIS PROPERTY.
Ysasi asserts that the Defendants violated his Fourth Amendment rights when they unlawfully entered his property, without probable cause and without his consent; the Defendants contend that they did not need probable cause to enter his property to investigate a potential domestic violence situation. In support of their position, the Defendants rely primarily on United States v. Jones and United States v. Tobin; the Defendants acknowledge that there is a factual dispute whether Ysasi gave his consent to be on his property. Because the Court must construe the disputed facts in favor of the nonmoving party, the Court finds that Ysasi told the officers that he did not consent to them entering and remaining on his property. Under these circumstances, the Court finds that the knock-and-talk strategy does not justify the officers’ presence on Ysasi’s property and denies the MSJ on the unlawful entry claim.
The first issue is whether the area inside Ysasi’s fence is within the cur-tilage of his home and, thus, subject to the same protections as his house. If the area is not within the curtilage of Ysasi’s home, then the officers could enter without the property without a warrant. See United States v. Jones,
the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by.
The next issue is whether the Officers were justified in entering the curti-lage without a warrant and without probable cause. The Defendants conceded at the Hearing that the Officers lacked probable cause to enter the property. See Tr. at 38:17-39:15 (Court, Childress). The cases on which the Defendants primarily rely — United States v. Jones and United States v. Tobin — discuss the knock-and-talk investigative strategy. In United States v. Jones, the Fifth Circuit reviewed a trial court’s denial of the criminal defendant Raymond Lee Jones’ motion to suppress evidence. See
In United States v. Tobin, United States Customs agents and Drug Enforcement Administration agents were conducting surveillance in a residential neighborhood when one of the agents noticed a car drive up to defendant Clifford Ackerson’s house and stop abruptly; defendant Ronald To-bin got out of the car, looked around, ran up to the front door, knocked, and went inside. See
Reasonable suspicion cannot justify the warrantless search of a house, see Arizona v. Hicks,480 U.S. 321 , 328,107 S.Ct. 1149 ,94 L.Ed.2d 347 (1987), but it can justify the agents’ approaching the house to question the occupants. [United States v.] Knight, 451 F.2d [275] at 278 [ (5th Cir.1971) ]; Davis v. United States,327 F.2d 301 , 303 (9th Cir.1964) (stating “[ajbsent express orders from the person in possession against any possible trespass, there is no rule of private or public conduct which makes it illegal per se, or a condemned invasion of the person’s right of privacy, for anyone openly and peaceably, at high noon, to walk up the steps and knock on the front door of any man’s ‘castle’ with the honest intent of asking questions of the occupant thereof — whether the questioner be a pollster, a salesman, or an officer of the law.”)[, overruled on other grounds by United States v. Perea-Rey,680 F.3d 1179 (9th Cir.2012) ].
Although the Defendants cite United States v. Jones and United States v. Tobin to support their argument that an officer may enter a person’s property to conduct a “knock and talk,” the Court does not agree that this investigative tactic justifies Brown’s and Rider’s entry onto Ysasi’s property. Unlike United States v. Jones and United States v. Tobin, where the officers approached the suspects’ doors to determine if the suspect would give consent to talk with the officers or consent to a search, viewing the facts in the light most favorable to Ysasi, Ysasi told Brown and Rider that he did not consent to them being on his property. The Court believes that the Ninth Circuit’s decision in United States v. Perea-Rey,
In United States v. Perea-Rey, Border Patrol agents watched a man climb over
Where the government “physically occupied] private property for the purpose of obtaining information,” that is a “ ‘search’ within the meaning of the Fourth Amendment.” United States v. Jones, — U.S.-,132 S.Ct. 945 , 949,181 L.Ed.2d 911 (2012). “[S]earches and seizures inside a home without a warrant are presumptively unreasonable.” Payton v. New York,445 U.S. 573 , 586,100 S.Ct. 1371 ,63 L.Ed.2d 639 (1980). Because the curtilage is part of the home, searches and seizures in the curtilage without a warrant are also presumptively unreasonable. See Oliver v. United States,466 U.S. 170 , 180,104 S.Ct. 1735 ,80 L.Ed.2d 214 (1984).
Next, the Ninth Circuit stated that “[w]arrantless trespasses by the government into the home or its curtilage are Fourth Amendment searches.”
“An officer [initiating] a ‘knock and talk’ visit may approach any part of the building ... where uninvited visitors could be expected.” United States v. Titemore,335 F.Supp.2d 502 , 505-06 (D.Vt.2004), aff'd,437 F.3d 251 (2d Cir.2006). However, once an attempt to initiate a consensual encounter with the occupants of a home fails, “the officers should end the knock and talk and change their strategy by retreating cautiously, seeking a search warrant, or conducting further surveillance.” United States v. Troop,514 F.3d 405 , 410 (5th Cir.2008) (holding that border patrol agents violated the Fourth Amendment when they conducted a warrantless search of the curtilage after there was no response to a knock and talk attempt) (internal quotation omitted).
At most, the knock and talk exception authorizes officers to enter the curtilage to initiate a consensual conversation with the residents of the home. If we were to construe the knock and talk exception to allow officers to meander around the curtilage and engage in war-rantless detentions and seizures of residents, the exception would swallow the rule that the curtilage is the home for Fourth Amendment purposes. We hold that the warrantless incursion into the curtilage of Perea-Rey’s home by border patrol agents and the resulting searches and seizures violated Perea-Rey’s Fourth Amendment rights.
First, United States v. Perea-Rey is instructive and persuasive in understanding Ysasi’s claim against Brown and Rider for unlawfully entering his property. As the Ninth Circuit said, quoting United States v. Jones, “[w]here the government ‘physically occupies private property for the purpose of obtaining information,’ that is a
Tenth Circuit precedent also supports the Court’s conclusion that the knock-and-talk strategy was not appropriate after Ysasi told the Officers they could not be on his property. The Tenth Circuit has explained that reasonable suspicion is unnecessary for a knock-and-talk investigation, because, “[a]s commonly understood, a ‘knock and talk’ is a consensual encounter and therefore does not contravene the Fourth Amendment, even absent reasonable suspicion.” United States v. Cruz-Mendez,
II. THE COURT WILL GRANT THE MSJ IN PART AND DISMISS THE UNLAWFUL ARREST CLAIM, BECAUSE TENTH CIRCUIT PRECEDENT INDICATES THAT ISSUE PRECLUSION BARS RE-LITIGATION OF PROBABLE CAUSE.
Ysasi asserts that the Defendants unlawfully seized and arrested him, in violation of the Fourth and Fifth Amendments. The Defendants contend that only the Fourth Amendment governs the unlawful arrest claim; the Court agrees that the Fifth Amendment is inapplicable in this context. See Taylor v. Meacham,
In Angel v. Torrance County Sheriff’s Department, No. CIV 04-195 BB/WPL, slip op. (D.N.M. Aug. 23, 2005) (Black, J.), plaintiff Michael Angel was arrested in Torrance County, New Mexico, and after the Magistrate Court held a preliminary hearing and bound him over for trial, the district attorney filed a nolle prosequi and dismissed the charges. See No. CIV 04-195 BB/WPL, slip op. at 3. Angel filed a § 1983 claim for unlawful arrest and imprisonment, and arrest without probable cause, see at 3, and the defendants moved for summary judgment, see No. CIV 04-195 BB/WPL, slip op. at 1. The Honorable Bruce Black, United States District Judge for the District of New Mexico, stated that, under federal law, “collateral estoppel bars the relitigation in a § 1983 civil action of any issue previously determined in a state-court criminal case, as long as the plaintiff had a ‘full and fair opportunity’ to litigate the issue in the state-court proceeding.” No. CIV 04-195 BB/WPL, slip op. at 6 (citing Allen v. McCurry,
Angel appealed pro se, and the Tenth Circuit reviewed Judge Black’s decision to grant summary judgment de novo. See Angel v. Torrance Cnty.,
the district court carefully analyzed Mr. Angel’s § 1988 claims. The court determined that (1) collateral estoppel barred the re-litigation of his arrest claim, see Hubbert v. City of Moore,923 F.2d 769 , 772-73 (10th Cir.1991) (holding that, where a criminal defendant had full and fair opportunity to litigate the issue, probable cause finding in pretrial criminal proceedings is binding in later civil rights action)....
After carefully reviewing the parties’ briefs, the district court’s order, and the record on appeal, we conclude that Mr. Angel has failed to raise a genuine issue of material fact relevant to his § 1983 claims. For substantially the same reasons set out in the district court’s order of August 23, 2005, we AFFIRM.
The Court has some concerns regarding Judge Black’s and the Tenth Circuit’s opinion applying collateral estoppel to bar the re-litigation of probable cause in a subsequent civil action. Hubbert v. City of Moore requires the Court to give preclu-sive effect to a New Mexico state court judgment to the same extent a New Mexico court would, but the Court is not convinced that Angel v. Torrance County Sheriffs Department reflects what a New Mexico court would do. Judge Black asserted that his decision to apply collateral estoppel was in line with New Mexico law, and cited Oldfield v. Benavidez, but the Court does not agree with Judge Black that Oldfield v. Benavidez supports granting summary judgment based on issue preclusion.
In Oldfield v. Benavidez, two children were removed from their home for one week and then returned to their parents’ custody; the children and parents sued the defendants — the Cibola County, New Mexico, sheriff, a social worker, and a supervisor in the New Mexico Human Services Department — for violating the plaintiffs’ right to familial integrity under the Fourth
The Court does not see how Oldfield v. Benavidez answers the question whether New Mexico courts would apply collateral estoppel in a subsequent civil case to a Magistrate Judge’s determination of probable cause at a preliminary hearing. On the other hand, there is at least some evidence that New Mexico courts might do what Judge Black did. “At the preliminary hearing, the state is required to establish, to the satisfaction of the examining judge, two components: (1) that a crime has been committed; and (2) probable cause exists to believe that the person charged committed it.” State v. White,
Once the State sought a determination in magistrate court and was given an adverse ruling, it cannot seek a redeter-mination of the same fact anticipating afavorable ruling. The relationship between the State and the magistrate system is not one between sovereigns. See Robert E. McKee, Gen. Con., Inc. v. Bureau of Revenue, 80 N.M. 453 ,457 P.2d 701 (1969). “A county is but a political subdivision of the State, and it possesses only such powers as are expressly granted to it by the Legislature[.]” El Dorado at Santa Fe, Inc. v. Board of Cty. Com’rs,89 N.M. 313 ,551 P.2d 1360 (1976). The State is barred from a second bite of the apple. It is prohibited from doing so because collateral estoppel is a part of the Fifth Amendment’s guarantee against double jeopardy. Ashe v. Swenson[,397 U.S. 436 , 453,90 S.Ct. 1189 ,25 L.Ed.2d 469 (1970) ].
State v. Orosco,
The Court has previously noted, however, that New Mexico courts do not always give so much deference to a Magistrate Judge’s decisions, and there may be good reasons not to. In Mata v. Anderson, plaintiff Juan Mata brought a § 1983 retaliatory-prosecution claim against defendant Ron Anderson, a law enforcement officer who filed a criminal complaint against Mata after Mata criticized the Farmington, New Mexico, police officers. See
“The Restatement Rule is apparently bottomed on the assumption that the magistrate has upon a full and fair trial proceeded to conviction predicated upon evidence that would convince a prudent and reasonable man of the guilt of the accused. Therefore there must have been probable cause for the criminal proceeding. But the difficulty with the rationale is that the assumption may not be true. If the magistrate erred as a matter of law, should the plaintiff be deprived of his cause of action? If that trial court had acted correctly there would have been an acquittal. Then the plaintiff would have been able to maintain the malicious prosecution suit. The inequity of a rule which in that situation bars the cause of action is obvious.”
The warrant for Jackson’s arrest was issued by a magistrate judge after an independent review of the charging document for probable cause. Subsequently, after a preliminary hearing at which Jackson was represented by his current attorney, the presiding magistrate judge found probable cause to bind Jackson over for trial in district court. “[T]he fact that a plaintiff has been bound over for trial on the criminal matter constitutes prima facie evidence of the existence of probable cause for the detention.” Roberts v. Goodner’s Wholesale Foods, Inc.,50 P.3d 1149 , 1152 (Okla.Civ.App.2002), cert. denied, Jul. 2, 2002; Christopher v. Circle K Convenience Stores, Inc.,937 P.2d 77 , 79 (Okla.1997) (stating that a finding of probable cause at a preliminary hearing binding over a defendant for criminal trial precluded a plaintiff in a subsequent civil suit for false arrest from relitigating the issue of probable cause).
Weststar Mortgage Corp. v. Jackson,
Two Restatement provisions also seem to speak to the issue before the Court: § 663
The Court does not believe that New Mexico courts would apply collateral estoppel to the Magistrate Judge’s determination of probable cause at the preliminary hearing, but rather, that New Mexico courts would view the Magistrate Judge’s finding of probable cause as evidence of the existence of probable cause, and it would view the district attorney’s subsequent nolle prosequi as evidence that there was not probable cause. New Mexico’s issue preclusion doctrine is not obligatory, and even when a party makes the prima facie showing, the “trial court must consider the countervailing equities including, but not limited to, prior incentive for vigorous defense, inconsistencies, procedural opportunities, and inconvenience of forum” before deciding whether to apply the doctrine. Silva v. State,
Ysasi asserts in the Complaint that the LCDC “conspired ... to violate the rights of Mr. Ysasi by holding him incommunicado for a period of three days with[out] access to bail in an attempt to cover up the actions of Deputies Rider and Brown,” Complaint ¶ 40, at 9; in the Response, he asserts that the LCDC detained him for four days, without an arraignment and without bail, “in order to conceal the beating he took from Deputy Chris Rider,” Response at 12; and, at the hearing, he explained that his claim against the LCDC is an Eighth Amendment claim that “he was not allowed to bond himself out” and that he was “held incommunicado.” Tr. at 26:9-12 (Blenden). To support this claim, he cites to his deposition testimony, but he did not attach the deposition testimony to the Response. The Defendants deny that the LCDC held Ysasi “incommunicado,” and provided the LCDC Call Records to show that he was able to communicate with his family and friends. The Defendants contend that Ysasi changed his claim in the Response and argue that the new claim is not proper under the Eighth Amendment; rather, as they understand his claim, Ysasi is arguing that a Magistrate Court did not make a timely determination of probable cause. See Tr. at 72:18-73:9 (Childress). To rebut this claim, the Defendants attached the Criminal Complaint, which shows that a Magistrate Judge made a determination of probable cause one day after Ysasi was arrested and incarcerated, which the Defendants assert is within the forty-eight hours that the Supreme Court of the United States requires for the probable cause determination. See Tr. at 73:11-19 (Childress).
To the extent that Ysasi is alleging that the LCDC held him without a determination of probable cause, the undisputed evidence from the Criminal Complaint indicates that Ysasi was arrested on February 25, 2010, and that a Magistrate Judge made a determination of probable cause on February 26, 2010. This date is within the forty-eight-hour outer limit that the Supreme Court has prescribed as presumptively reasonable in County of Riverside, and Ysasi has not come forward with any evidence to show that the delay in the determination of probable cause is unreasonable. Because that determination was made within forty-eight hours, the burden rests on Ysasi, and he did not his burden. See County of Riverside,
To the extent that Ysasi is arguing that the LCDC held him “in communi-cado” and that the LCDC employees conspired with Brown and Rider to hold Ysasi for four days to allow his wounds to heal, the LCDC has come forward with evidence that Ysasi was allowed to communicate with his family and friends by making telephone calls, and Ysasi has not come forward with any evidence to show anything to the contrary. He does not pro
To the extent that Ysasi is alleging that the four days he remained incarcerated at the LCDC without an arraignment and without bail violates his Eighth Amendment rights, the Court does not think that the Eighth Amendment is the proper constitutional provision, and further, does not think that the four days delay, without more, deprived Ysasi of any constitutional rights. In United States v. Hanrahan, No. CR 04-1978 JB,
“acknowledge^] there are instances in which an extended pre-arraignment delay may implicate a defendant’s rights and require judicial review.” Robertson v. Price City Police Dept.,83 Fed.Appx. 286 , 287-88 (10th Cir. Dec. 11, 2003) (citing Strunk v. United States,412 U.S. 434 , 440 [93 S.Ct. 2260 ,37 L.Ed.2d 56 ] (1973) (unreasonable delay between prisoner’s indictment and arraignment violated his right to a speedy trial); United States v. Padilla-Mendoza,157 F.3d 730 , 731-32 (9th Cir.1998) (confession given during pre-indictment delay may be suppressed); United States v. Grimmond,137 F.3d 823 , 827 n. 1 (4th Cir.1998) (delay between indictment and arraignment may violate defendant’s right to due process where actual prejudice is shown); Oviatt v. Pearce,954 F.2d 1470 , 1475 (9th Cir.1992) (arres-tee’s rights were violated where arres-tee was detained for 114 days before being arraigned, and state statute created liberty interest in being free from incarceration without prompt pretrial and trial procedures); United States v. Comosona,848 F.2d 1110 , 1114 (10th Cir.1988) (pre-indictment delay may provide grounds for speedy trial violation)).
Although not stating that the cause of action arose under the due-process clause, the United States District Court for the
The Court believes that Ysasi’s claim against the LCDC does not arise under the Eighth Amendment as he has argued, but under the Fourteenth Amendment’s due process protections.
IV. THE COURT WILL MODIFY YSA-STS PROPOSED JURY INSTRUCTIONS.
The Defendants objected to a number of Ysasi’s requested jury instructions. Ysa-si’s requested Instruction No. 22 states: “A Plaintiff is not required to prove that a Defendant intentionally deprived him or her of his or her Constitutional rights. Rather, the Plaintiff only needs to prove that a Defendant intentionally committed acts or omissions, and that such acts or omissions resulted in violations of the Plaintiffs constitutional rights.” Plaintiffs Jury Instructions, filed February 19, 2014 (Doc. 81); Plaintiffs Requested Instruction No. 22, at 22. The Defendants object to this instruction “as being an inaccurate description of the law and the evidence.” Objections at 3. The Court will sustain this objection in part, and will modify the instruction to state that Ysasi must prove by a preponderance of the evidence “[t]hat Mr. Brown and/or Mr. Rider, intentionally committed acts that violated one or more Federal constitutional rights.... ” Court’s Final Jury Instructions (with citations) at 14-15, filed February 19, 2014 (Doc. 85)(“Final Instructions”). The Court based this modification on the Fifth Circuit Pattern Jury Instructions (Civil Cases) 10.1, at 123 (2009)(42 U.S.C. Section 1983 (Unlawful Arrest — Unlawful Search — Excessive Force) Qualified Immunity — Good Faith Defense).
Ysasi’s requested Instruction No. 23 states:
A proximate cause of an injury is that which in a natural and continuous sequence produces the injury, and without which the injury would not have occurred. It need not be the only cause, nor the last nor nearest cause. It is sufficient if it occurs with some other cause acting at the same time, which in combination with it, causes the injury.
Plaintiffs Requested Instruction No. 23. The Defendants object to this instruction “to the extent it contradicts federal law defining proximate cause. In addition, it is inconsistent with the language of UJI 13-305.” Objections at 3. The Court will sustain this objection and modify the jury instruction to read:
Mr. Ysasi must also prove by a preponderance of the evidence that the act or failure to act by Mr. Brown and/or Mr. Rider was a proximate cause of the damage Mr. Ysasi suffered. An act or omission is a proximate cause of Mr. Ysasi’s injuries or damages if it appears from the evidence that the injury or damage was a reasonable foreseeable consequence of the act or omission.
Final Instructions at 17-18. The Court based this modification on the Fifth Circuit Pattern Jury Instructions 10.1, at 125-26.
The Defendants object to Ysasi’s requested Instruction Nos. 34-39, which relate to damages, because the Defendants “deny that the Plaintiff is entitled to damages” and that “there is no evidence to support a lost earnings instruction.” Objections at 3. After the close of the evidence at trial, the Court discussed with the parties the jury instructions relating to damages. The parties agreed to remove the jury instruction for “the value of lost earnings and the present cash value of
IT IS ORDERED that (i) the Defendants’ Motion for Partial Summary Judgment, filed December 16, 2013 (Doc. 43), is granted in part and denied in part; and (ii) the Defendants’ Objections to Plaintiffs Proposed Jury Instructions, filed February 14, 2014 (Doc. 68), are overruled in part and sustained in part. The Court will dismiss the state law claims against all the Defendants, will dismiss the unlawful arrest claims under the Fourth Amendment to the Constitution of the United States of America against Defendants Deputy Sheriff Kelly Brown and Deputy Sheriff Chris Rider, and will dismiss the claim against the Defendant Lea County Detention Center.
Notes
. Ysasi disputes the portion of the Defendants’ asserted fact that states that the personal property belonged to "a domestic violence victim.” MSJ Memo. ¶ 2, at 4. See Response ¶ 2, at 5. Ysasi contends that the 911 call was for "assistance in recovering personal property only. The request dispatch call to Deputy Kelly Brown was not in response to a domestic violence.” Response ¶ 2, at 5 (citing 911 and Dispatch Audio.) The Defendants argue that "the dispatch report clearly implicated a domestic violence scenario, and Defendant Brown so attested in his Affidavit," and that Ysasi’s statement "that the deputies were not responding to 'a domestic violence' is overstating and mischaracterizing the evidence.” Reply at 3-4.
The Defendants cite the following portions of the Transcription of Digitally-Recorded Preliminary Hearing, taken April 27, 2010, filed December 16, 2013 (Doc. 53-l)("Prelim-inary Hearing Transcript”):
Q. Okay, well, there was a crib there, correct?
A. Yeah, it was pretty bad.
Q. You are saying a two year old daughter, is that right? Did you see the child?
A. No.
Q. All right but did you understand that she didn't want any of that property, and she was saying she was ready to leave?
A. Ma’am, at that time, we didn’t know what was going on, okay?
Q. Okay.
A. When we start, when we come onto a scene, we are as cops or deputies, advised that we investigate all incidents until wefind out everything that’s going on. Just because it turns to be a stand by could turn into domestics, all other kinds of stuff. So my initial thought was, where is that kid? Because she’s not telling us nothing. She’s sitting there crying. So I wanted to make contact with the second party.
Preliminary Hearing Transcript at 56:5-25 (Reese, Rider).
I observed Mrs. Thompson to be crying. Very evasive with questions.... As I was looking at the property, you know, I asked her, I said, this is a crib, her, your kids? And she’s yeah. It's our two year old daughter, so I'm sitting there, thinking, hum. I better go, and try to find out from the other individual what happened at this, you, know, before we came, before we arrived.
Preliminary Hearing Transcript at 36:9-19 (Rider). “The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255,
.Ysasi argues that Brown made the statements in the Brown Aff. — that he understood that there was a possible domestic violence incident — "after the fact in support of the Defendant’s position.” Response ¶ 2, at 5. Ysasi has presented evidence that disputes that Thompson reported that she was a domestic violence victim, see Thompson Aff. ¶¶ 8-9, 12-13, at 2, but does not present evidence that disputes that Brown and Rider understood that Thompson may be a domestic violence victim. The Court will thus remove references that state as a fact that Brown and Rider responded to a domestic violence incident or characterize Thompson as a domestic violence victim, but will include facts that are undisputed that reveal Brown's and Rider’s understanding of the situation.
. Ysasi asserts that Vega reported to 911 dispatch that Thompson's boyfriend “had placed her sister’s stuff and the baby’s stuff in the trash.” Response ¶ 3, at 5. In the 911 call, Vega said that Thompson and Ysasi "got into a really big fight, and he threw out all of her stuff, her baby stuff, her stuff, he threw it all in the trash.” 911 and Dispatch Audio.
. Ysasi states that "Amber Vega was not present for any communications by the Plaintiff, MANUEL YSASI, or Heather Thompson.” Response ¶ 3, at 5. The Defendants argue that whether Vega was present for communications between Ysasi and Thompson "would be irrelevant. The dispatcher was entitled to rely on the statements of Ms. Vega and to dispatch officers.” Reply at 4. D.N.M.LR-Civ. 56.1(b) states in relevant part: "The Response may set forth additional facts other than those which respond to the Memorandum which the non-movant contends are material to the resolution of the motion. Each additional fact must be lettered and must refer with particularity to those portions of the record upon which the non-movant relies.” D.N.M.LR-Civ. 56.1(b). The additional fact— that Vega was not present for Ysasi’s and Thompson’s communications — does not "specifically controvertí]” the Defendants' statement of fact, but rather is an additional fact. D.N.M.LR-Civ. 56.1(b). The Court will therefore deem the fact that Thompson told the 911 dispatcher that Ysasi and Thompson got into a fight admitted. Because the 911 and Dispatch Audio does not support Ysasi's additional fact that Vega was not present for the communications between Ysasi and Thomp
.Ysasi responds to this fact by stating: "Defendant’s Exhibit 6 of the 911 call specifically sets forth that this was just an assistance call to retrieve personal property and not a domestic violence call.” Response ¶ 4, at 6 (citing 911 and Dispatch Audio; Thompson Aff. ¶¶ 7-9, at 2). The Defendants reply:
Plaintiff again asserts that the 911 call was not a domestic violence call. To the extent the Plaintiff implies that the dispatcher specifically stated that this was not a domestic violence call, Plaintiff again mischaracter-izes the evidence. The dispatcher provided information with the dispatch report which certainly implicated a domestic dispute.
Reply at 4. Ysasi’s asserted fact in response— that the 911 call was “just an assistance call to retrieve personal property and not a domestic violence call”' — does not "specifically controvert ]” the Defendants' statements of fact regarding what Thompson, Vega, or the dispatch operator said during the 911 call, but rather is an additional fact. D.N.M.LR-Civ. 56.1(b). The Court will therefore deem this fact admitted.
. The Defendants and Ysasi submitted portions of the Preliminary Hearing Transcript. Each page of the Preliminary Hearing Transcript is split into four numbered pages of transcribed testimony, and the Court's references to the transcript refer to the quarter-pages’ numbers.
. Ysasi sets forth as an additional fact:
Deputy Kelly Brown and Deputy Chris Rider had no predicate crime to investigate nor did they have any predicate crime of domestic violence to investigate but only to assist Heather Thompson in the retrieval of personal property outside of the property located at 1502 North Evans Drive, Hobbs, Lea County, New Mexico.
Response ¶ 7, at 6 (citing Brown Aff. ¶ 3, at 1; Preliminary Hearing Transcript). The Defendants reply that "there was sufficient evidence to raise suspicion of domestic violence.” Reply at 4. All facts are to be construed in favor of Ysasi, but the evidence he cites does not go so far as to say that Brown and Rider were not investigating a crime; the evidence suggests that they did not know, but suspected, that there may have been an incident of domestic violence.
. The Defendants set forth as fact that Brown and Rider "were assessing the extent of the domestic abuse which had occurred.”- MSJ Memo. ¶ 8, at 5. Ysasi opposes this fact "as not factual,” because he asserts that Brown and Rider were not there “to investigate domestic abuse whatsoever and never told Heather Thompson or Amber Vega that they were assessing a domestic violence situation.” Response ¶ 10, at 6-7 (citing Thompson Aff. ¶ 24, at 3). The Defendants argue that there was sufficient evidence to raise a suspicion of domestic violence:
The fact that the deputies did not specifically announce that they were investigating a domestic violence situation does not mean that they were not suspicious. It was already clear that Heather Thompson was not cooperating. Moreover, the officers were questioning Ms. Thompson about her safety. Such subject matter points to the officers’ suspicion.
Reply at 5. Ysasi’s additional fact — that Brown and Rider did not tell Thompson or Vega that they were assessing a domestic violence situation — does not "specifically controvert!]” the Defendants’ statement of fact. The Court will therefore deem this fact admitted, but will modify it to reflect that Brown and Rider were not responding to a known domestic violence situation. Because Ysasi refers the Court with particularity to the portion of the record upon which he relies for the additional fact, and the Defendants did not dispute it, the Court will also add Ysasi’s additional fact.
. The Defendants argue that ”[t]he fact that the deputies did not specifically announce that they were investigating a domestic violence situation does not mean that they were not suspicious.” Reply at 5.
The Reply must contain a concise statement of those facts set forth in the Response which the movant disputes or to which the movant asserts an objection. Each fact must be lettered, must refer with particularity to those portions of the record upon which the movant relies, and must state the letter of the non-movant’s fact. All material facts set forth in the Response will be deemed undisputed unless specifically controverted.
D.N.M.LR-Civ. 56.1(b). The Court understands the Defendants to be arguing that whether Brown and Rider told Thompson they were investigating a domestic violence situation is irrelevant. Contending that a fact is irrelevant is not disputing a fact, nor is it specifically controverting a fact by directing the Court with particularity to the record. See D.N.M.LR-Civ. 56.1(b). In O'Brien v. Mitchell,
. Ysasi adds the fact that he was yelling at Thompson, Brown, and Rider "as to why Ms. Thompson had asked the police to come over to the house.” Response ¶ 11, at 7 (citing 911 and Dispatch Audio). The Court believes Ysa-si meant to cite the Police Video; although the Court could not hear this video clearly, the Court will add this fact, because "[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc.,
. The Defendants cite this exchange between Rider and Ysasi:
Rider: Why don’t you come and step outside with me?
Ysasi: No, no, no. Why don’t you come to my house. You can come to my house. You’re already here. C’mon. You can see what bad house, I’ve got a bad house....
Rider: Step on out. What, are you telling me I can’t come on your property, or what?
Ysasi: O.K. You can come in here....
Police Video. See Reply at 5 (citing this exchange).
.Ysasi states that “Deputy Rider climbed a gate to enter the property without permission of the Plaintiff and trespassed upon the property.” Response ¶ 13, at 7. It is disputed .whether Ysasi gave his permission to Brown and Rider to come onto his property; the Police Video reveals that Ysasi, at one point, told Brown and Rider that they could enter his property, but can also be heard telling Brown and Rider that they had no right to be on his property. Ysasi’s assertion that the Officers trespassed onto his property, however, is a legal argument, which is not properly included as a material fact. See Ruiz v. City of Brush,
. The Defendants cite the Brown Aff., which states that, "[w]hen Deputy Rider approached the Plaintiff, the Plaintiff lunged at Deputy Rider, causing the two men to fall off the platform with the Plaintiff landing on top of Deputy Rider.” Brown Aff. ¶ 11, at 3. Ysasi cites the Police Video, and sets forth as an asserted fact that "Deputy Rider pulled the Plaintiff from the porch on top of [Rider],” Response ¶ 13, at 7, and that “[t]he Plaintiff wrapped his arms around Deputy Rider in a defensive position while Deputy Rider was pummeling the Plaintiff with both fists,” Response ¶ 14, at 7. The Police Video does not show the encounter between Rider and Ysasi, but provides audio. The Defendants acknowledge that "there is a dispute as to the way the physical contact occurred between the Plaintiff and the officers.” Reply at 6.
. Ysasi asserts that Rider tased him no less than four times. See Response ¶ 15, at 7 (citing Police Video; Brown Aff.). The Brown Aff. does not state the number of times Rider tased Ysasi, and it is not clear from the video the number of times he was tased.
. Ysasi asserts that Rider tased him “several times, unnecessarily and with unnecessary and unreasonable force upon the Plaintiff.” Response ¶ 14, at 7 (citing the Police Video). Legal arguments should not be set forth in a party’s asserted fact section during summary judgment. See Ruiz v. City of Brush, No. 05-897,
. The Defendants cite the Brown Aff., which states that, “[a]s the Plaintiff continued to resist the efforts to handcuff him, Deputy Rider deployed a taser several times on the Plaintiff. The Plaintiff was eventually subdued.” Brown Aff. ¶ 12, at 3. Ysasi asserts that he "did not resist the efforts to handcuff him, but laid upon Deputy Rider in a defensive position.” ■ Response V 14, at 7 (citing the Police Video). Although it is not clear from the Police Video what took place, the Court must make all reasonable inferences in favor of the non-moving party.
. Ysasi sets forth this fact in the Response, but omits "at which time he posted bail and was released.” Response ¶ 16, at 7-8. He asserts that he "was kept at the Lea County Detention Center for a period of four (4) days without arraignment and without a bond whereby he could be released.” Response ¶ 16, at 7-8. He cites the "deposition testimony of Manuel Ysasi, and Exhibit, Lea County Detention Center Records,” but he did not attach these documents to the Response. The additional facts — that Ysasi was kept at the LCDC for four days without arraignment and without a bond — do not “specifically controvert]” the Defendants’ statement of fact, but rather are additional facts. The Court will therefore deem this fact — that Ysasi posted bail and was released on March 1, 2010— undisputed. Because Ysasi did not support his additional facts with evidence, the Court will not add his additional facts.
. Ysasi set forth the following asserted fact:
Both of the Officers testified there was no predicate crime to investigate when dispatched by the 911 call. They had no search warrant to enter to the premises. Both officers testified at Preliminary hearing that there was no domestic violence or domestic abuse by and between the Plaintiff and Heather Thompson.
Response ¶ 18, at 8 (citing Preliminary Hearing Transcript). The Defendants assert that "[w]hether there was a predicate crime or domestic abuse is irrelevant. The Plaintiff’s charges arose only from the altercation between the Plaintiff and the officers, not from any domestic abuse that may have occurred.” Reply at 6. Contending that a fact is irrelevant is not disputing a fact, nor is it specifically controverting a fact by directing the Court with particularity to the record. See D.N.M.LR-Civ. 56.1(b). The proper course is to determine relevance of facts in the analysis section, rather than in the factual background section. See O’Brien v. Mitchell,
The Defendants also argue that Ysasi’s asserted fact "overstates the testimony of the officers at the Preliminary Hearing.” Reply at 6. The Court has modified Ysasi’s asserted fact to reflect what Brown and Rider said at the Preliminary Hearing, rather than characterizing their testimony
. The MSJ numbers the third and fourth paragraphs as "3.”
. Crudup v. Schulte is an unpublished opinion, but the Court can rely on an unpublished opinion to the extent its reasoned analysis is persuasive in the case before it. See 10th Cir. R. 32.1(A) ("Unpublished opinions are not precedential, but may be cited for their persuasive value."). The Tenth Circuit has stated:
In this circuit, unpublished orders are not binding precedent, ... and we have generally determined that citation to unpublished opinions is not favored. However, if an unpublished opinion or order and judgment has persuasive value with respect to a material issue in a case and would assist the court in its disposition, we allow a citation to that decision.
United States v. Austin,
. The Court’s citations to the Transcript of Hearing and the Transcript of Trial, taken February 19, 2014 ("Trial Tr.”), refer to the court reporter’s original, unedited versions. Any final transcripts may contain slightly different page and/or line numbers.
. Although the Honorable William J. Brennan, Jr., Associate Justice of the Supreme Court of the United States, dissented in Celo-tex Corp. v. Catrett, this sentence is widely understood to be an accurate statement of the law. See 10A C. Wright & A. Miller, Federal Practice & Procedure § 2727, at 470 (3d ed. 1998) ("Although the Court issued a five-to-four decision, the majority and dissent both agreed as to how the summary judgment burden of proof operates; they disagreed as to how the standard was applied to the facts of the case.”).
. The Honorable Clarence Thomas, Associate Justice, was the only other Justice to join Justice Scalia’s Minnesota v. Carter concurrence.
. The Court has previously stated: "[T]he Supreme Court has vigorously asserted that the proper analysis under the Fourth Amendment is not whether the place searched is a 'constitutionally protected area.’ ” Kerns v. Bd. of Comm’rs of Bernalillo Cnty.,
Because of the misleading way the issues have been formulated, the parties have attached great significance to the characterization of the telephone booth from whichthe petitioner placed his calls. The petitioner has strenuously argued that the booth was a "constitutionally protected area.” The Government has maintained with equal vigor that it was not. But this effort to decide whether or not a given "area,” viewed in the abstract, is "constitutionally protected” deflects attention from the problem presented by this case. For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. See Lewis v. United States, 385 U.S. 206 , 210,87 S.Ct. 424 ,17 L.Ed.2d 312 [1966]; United States v. Lee,274 U.S. 559 , 563,47 S.Ct. 746 ,71 L.Ed. 1202 (1927). But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. See Rios v. United States,364 U.S. 253 ,80 S.Ct. 1431 ,4 L.Ed.2d 1688 [1960]; Exporte Jackson,96 U.S. 727 , 733,24 L.Ed. 877 [1877],
Katz v. United States,
. URL is the abbreviation for a "uniform resource locator, ... also known as web address, [which] is a specific character string that constitutes a reference to a[n internet] resource.” Uniform Resource Locator, Wikipedia.org, http://en.wikipedia.org/wiki/ Uniform_resource_locator (last visited Apr. 23, 2013).
. The Honorable John Paul Stevens, former Associate Justice of the Supreme Court, penned the majority’s opinion in Illinois v. Caballes. Out of the current Supreme Court Justices, Justices Scalia, Kennedy, Thomas, and Breyer joined Justice Stevens’ majority opinion, while Justice Ginsburg dissented. See
. The Tenth Circuit clarified that, because the Fourteenth Amendment incorporates the Fourth Amendment’s protections against the states, a Fourth Amendment claim against state actors is also a Fourteenth Amendment claim. See Mondragon v. Thompson,
. The Defendants objected to several of Ysa-si's proposed juiy instructions related to the excessive force claim, including Instruction No. 13 “as being an inaccurate description of the law and the evidence,” to Instruction No. 14 "as it is cumulative to the excessive force instruction that is agreed upon by the parties,” and to Instruction No. 16 “as being an inaccurate description of the law and the evidence.” Objections at 2. The Court modified the excessive force instructions based on the Fifth Circuit Pattern Jury Instructions. See Fifth Circuit Pattern Jury Instructions (Civil Cases) 10.1, at 122-127 (2009)(42 U.S.C. Section 1983 (Unlawful Arrest — Unlawful Search — Excessive Force) Qualified Immunity — Good Faith Defense); Fifth Circuit Pattern Juiy Instruction (Civil Cases) 10.2, at 128-131 (2009)(Alternative — Excessive Force Section 1983 Jury Charge). The Court is always reluctant to just toss a lot of legal principles at the juiy, even if they are correct, because they begin to put the Court’s thumb on the scale and suggest its preference for one party. Rather, it prefers to give the jury the tools it needs to decide the issues and leave the rest to closing arguments.
The Court concludes that these instructions give the jury the tools they need to decide the excessive force claim in a straightforward, easy to understand manner. The parties did not object to the Court’s modifications. Because the Defendants also relied on the Fifth Circuit Pattern Jury Instructions, the Court will sustain the Objections to the extent they are consistent with the Fifth Circuit Pattern Juiy Instructions.
. Ysasi’s proposed Jury Instruction No. 7 states that one of Ysasi’s claims against Rider and Brown is for unlawfully entering his property "without probable cause, and without a warrant....” Instruction No. 7, at 7. Ysasi’s Instruction No. 10 repeats this standard. The Defendants object to Ysasi’s Jury Instruction No. 7 and Instruction No. 10, because they argue that probable cause is not the proper standard for the unlawful entry claim. See Objections at 1-2. The Defendants argue that reasonable suspicion of criminal activity can justify an officer’s approach to a house to question the occupants. The Court overrules this objection to the extent that the Defendants are arguing that reasonable suspicion can support entry onto Ysa-si’s property; although the Defendants argue that the knock-and-talk investigative tool permits an officer to enter properly without probable cause, the Court concludes that the knock and talk strategy may be used only to the extent it is consistent with attempting to gain the occupants’ consent, and thus, the knock-and-talk strategy on which the Defen
The Defendants also object to Instruction No. 10, because they "disagree that the jury should be instructed that the Plaintiff was 'peaceable.' ” Objections at 2. The Court sustains this objection and will remove the reference to whether Ysasi was "peaceable” on his property. The issue for the jury is probable cause, not whether Ysasi was "peaceable.”
. The Court included in the jury instructions an explanation of consent based on Manzanares v. Higdon:. "Consent which waives a Fourth Amendment right may be limited, qualified, or withdrawn. If consent is withdrawn, some other independent legal authority to remain — such as a warrant, probable cause, or exigent circumstances' — must exist.” Final Jury Instructions at 15.
. In the Answer to Complaint for Damages for Violation of Civil Rights and Jury Demand, filed April 22, 2013 (Doc. ^("Answer”), the Defendants asserted that they "are entitled to qualified immunity from the claims asserted in the Complaint.” Answer ¶ 7, at 7. The Defendants did not raise the qualified immunity defense — or, specifically, the clearly established prong of qualified immunity — in the MSJ briefing or at the hearing. Further, the Defendants did not mention qualified immunity — of, specifically, the clearly established prong of qualified immunity — -in the Pretrial Order, filed February 18, 2014 (Doc. 78). The Pretrial Order states that it "will control the course of trial and may only be amended sua sponte by the Court or by consent of the parties and Court approval. The pleadings will be deemed merged herein.” Pretrial Order at 23. Thus, the Defendants have effectively abandoned the qualified immunity defense or, specifically, the clearly established prong of qualified immunity. Further, they did not raise the defense or the clearly established prong of qualified immunity when they moved the Court for a directed verdict. See Transcript of Trial at 133:2-14 (Childress), taken February 19, 2014 ("Trial Tr.”). “The Defendants' failure to make a pre-verdict motion for judgment as a matter of law under Rule 50(a) on the grounds of qualified immunity precluded them from making a post-verdict motion under Rule 50(b) on that ground.” Sykes v. Anderson,
. The Defendants object to Ysasi’s Instruction No. 7, because "[t]here is no basis for any 5th or 8th Amendment claim. As to the conduct of the deputies, claims of unlawful arrest and/or excessive force are properly analyzed under the Fourth Amendment only.” Objections at 1. The Defendants object to Instruction No. 9, because "there is no basis for any 5th Amendment or 8th Amendment claim and the Fourth Amendment language duplicates Instruction No. 10.” Objections at 2. The Defendants object to Instruction No. 17, because "there is no basis for any 5th or 8th Amendment claims.” Objections at 2. The Court agrees that Ysasi’s claim for unlawful arrest and excessive force implicate the Fourth Amendment only, and not the Fifth or Eighth Amendments. See Graham v. Connor,
. Section 663 states:
(1) In the absence of evidence of probable cause, a discharge of the accused by a magistrate upon a preliminary hearing in the criminal proceeding is conclusive of the lack of probable cause unless it appears that the discharge was
(a)not upon the merits, or
(b) based upon testimony offered by the accused at the hearing, or
(c) due to the misconduct of the magistrate.
(2) The magistrate’s commitment of the accused is evidence that the person initiating the proceedings had probable cause.
Restatement (Second) of Torts § 663.
. Section 665 states:
(1) The termination of the proceedings in favor of the accused at the instance of the private prosecutor who initiated them, or because of his failure to press the prosecution, is evidence of a lack of probable cause.
(2) The abandonment of criminal proceedings by a public prosecutor acting on his own initiative after the prosecution has passed into his control, is not evidence that the private prosecutor acted without probable cause.
Restatement (Second) of Torts § 665.
. Ysasi argues that the Court should not apply issue preclusion, because the Defendants are not in privity with the State of New Mexico from Ysasi’s criminal case. The
[W]e hold that the doctrine of defensive collateral estoppel may be applied with a defendant seeks to preclude a plaintiff from relitigating an issue the plaintiff has previously litigated and lost regardless of whether defendant was privy to the prior suit; and that the doctrine of offensive collateral estoppel may be applied when a plaintiff seeks to foreclose the defendant from litigating an issue the defendant has previously litigated unsuccessfully regardless of whether plaintiff was privy to the prior action.
Silva v. State,
. Although the Southern District of New York seems to state that an undue delay in arraignment may violate the Fourth Amendment, see Simmons v. Kelly, No. 06 Civ. 6183CRJS),
. The Court is wary to say that four days is an unreasonable length of time, when the New Mexico rules state that "[a] defendant in custody shall be arraigned on the complaint or citation as soon as practical, but in any event no later than four (4) days after the date of arrest.” N.M.R. MAG CT RCRP Rule 6-506. Ysasi was arraigned within the four days that the rule requires; although the rule may violate the Constitution, Ysasi did not make that argument, and admitted at the hearing that he did not know whether four days was an unreasonable amount of time. See Tr. at 76:1-3 (“I don't even know if four days is an unreasonable time. I have to admit to you I have not looked that up.”)(Blen-den).
. Because the Court is dismissing the claim against the LCDC, it will sustain the Defendants’ Objections to Ysasi’s proposed jury instructions related to the LCDC.