Ysasi v. Brown (3 F. Supp. 3d 1088, 2014)

United States District Court for the District of New Mexico 2014-02-28

Citations

Full opinion text

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

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 Manuel Ysasi has a claim under the Eighth Amendment to the Constitution if the undisputed evidence shows that he was arraigned four days after being arrested. The Court will grant the MSJ in part and deny it in part. The parties agree that the Court should dismiss all of Ysasi’s state-law claims against the Defendants. The Court concludes that, on the facts presented and drawing all reasonable inferences in favor of Ysasi as the non-moving party, (i) Rider and Brown are not entitled to summary judgment on the unlawful entry claim, because there is a dispute regarding whether they had Ysasi’s consent to enter his property and reasonable suspicion is not sufficient to enter property when consent has been denied; (ii) cases from the United States Court of Appeals for the Tenth Circuit indicate that the Court should apply collateral estoppel in this case and bar re-litigation of probable cause for Ysasi’s arrest, because he had a full and fair opportunity to litigate that issue at his preliminary hearing for the criminal case; and (iii) the LCDC is entitled to summary judgment on the claims Ysasi has asserted against it, because Ysasi failed to set forth evidence to rebut the Defendants’ summary judgment evidence that a Magistrate Judge made a probable cause determination one day after he was arrested, and that he was arraigned four days after he was arrested. The Court will also sustain some and overrule some of the Defendants’ objections to the jury instructions.

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 understood that “there had been an incident implicating possible domestic violence .... ” Brown Aff. ¶ 3, at l. The caller was Amber Vega, Thompson’s sister; Vega reported to the 911 dispatcher that her sister and her sister’s boyfriend got into an argument, and the boyfriend “threw out all her stuff and her baby stuff.” 911 and Dispatch Audio. See MSJ Memo. ¶ 8, at 4 (setting forth this fact). Vega reported that she, her husband, and Thompson were going to the North Evans address to retrieve the property, and that Vega was requesting a police escort. See 911 and Dispatch Audio; MSJ Memo. ¶ 3, at 4 (setting forth this fact). During the dispatch call, Thompson begged her sister not to get the police involved and stating that the police would only make things worse; when the dispatch operator asked to speak directly to Thompson, she got on the telephone and pleaded with the dispatcher not to send police to the property, refused to give the dispatcher her boyfriend’s name, but told the dispatcher that she was seventeen years old. See 911 and Dispatch Audio; MSJ Memo. ¶4, at 4-5 (setting forth this fact). The 911 call was a request for assistance to retrieve personal property; Thompson did not tell the dispatcher that it was a domestic violence call. See Affidavit of Heather Thompson ¶¶ 7-9, at 2, filed January 16, 2014 (Doc. 51)(“Thompson Aff.”); Response ¶ 4, at 6 (setting forth this fact). The dispatcher put out a call for officers to go to the North Evans address, and Brown responded to the dispatch. See Brown Aff. ¶ 2, at 1; MSJ Memo. ¶ 5, at 5 (setting forth this fact); Response ¶ 5, at 6 (not disputing 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) (“Preliminary Hearing Transcript”); Response ¶ 7, at 6 (setting forth this fact). When Brown arrived, he encountered Thompson, Vega, and Vega’s husband near a dumpster outside the fenced area of property located at 1502 North Evans; a broken baby bed was by the dumpster. A mobile home was located on the fenced-in property. Rider arrived shortly thereafter to assist Brown. See Brown Aff. ¶¶ 4-8, at 2; MSJ Memo. ¶ 6, at 5 (setting forth this fact); Response ¶ 8, at 6 (not disputing this fact). Thompson was fearful and reluctant to give any information to the Brown and Rider; she indicated that she did not want to get Ysasi into trouble and was worried that he would be upset by Brown’s and Rider’s presence. After Brown’s, Rider’s, and Vega’s persuasive efforts, Thompson revealed that the owner of the mobile home was her boyfriend — later identified as the Ysasi — with whom Thompson had a two-year old child. See Brown Aff. ¶¶ 6-8, at 2; MSJ Memo. ¶7, at 5 (setting forth these facts); Response ¶ 9, at 6 (not disputing these facts). Rider threatened to take away Thompson’s child if she did not tell them her boyfriends’ name. See Thompson Aff. ¶¶ 15-17, at 2-3; Response ¶ 9, at 6 (setting forth this fact); Reply at 6 (not disputing this fact). Brown and Rider, aware of the smashed crib, Thompson’s fear, and the request for officer assistance, were assessing whether and to what extent any domestic violence had occurred. See Brown Aff. ¶ 8, at 2; MSJ Memo. ¶ 8, at 5 (setting forth this fact). Brown and Rider did not tell Thompson that they were assessing a domestic violence situation. See Thompson Aff. ¶ 24, at 3; Response ¶ 10, at 6-7 (setting forth this fact).

Ysasi exited the mobile home and began yelling at Thompson, Brown, and Rider. See Brown Aff. ¶ 9, at 2; Audio/Video Recording of the Incident on 2/25/10, filed December 16, 2013 (Doc. 45)(lodged in Records)(“Police Video”); MSJ Memo. ¶ 9, at 5 (setting forth this fact); Response ¶ 11, at 7 (not disputing this fact). A heated verbal exchange ensued between Ysasi, Brown, and Rider. See Brown Aff. ¶ 10, at 2; Police Video; MSJ Memo. ¶ 10, at 5 (setting forth this fact); Response ¶ 12, at 7 (not disputing this fact). Ysasi yelled obscenities, see Brown Aff. ¶ 10, at 2; Police Video; MSJ Memo. ¶ 10, at 5 (setting forth this fact); Response ¶ 12, at 7 (not disputing this fact); yelled at Thompson, Brown, and Rider, asking why Thompson had asked the police to come to the house, see Police Video; Response ¶ 11, at 7 (setting forth this fact); told Brown and Rider that they could come onto his property, see Police Video; Reply at 5 (setting forth this fact); and also told Brown and Rider that they did not have a right to be on his property and that he did not want them on his property, see Police Video; Response ¶ 12, at 7 (setting forth this fact). Rider wanted to question Ysasi as to what had occurred between Ysasi and Thompson. See Brown Aff. ¶ 10, at 2; MSJ Memo. ¶ 10, at 5-6 (setting forth this fact); Response ¶ 12, at 7 (not disputing this fact). Ysasi refused to come over to the location where Rider was standing. See Brown Aff. ¶ 10, at 2; MSJ Memo. ¶ 10, at 5-6 (setting forth this fact); Response ¶ 12, at 7 (not disputing this fact).

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). When Rider approached Ysasi, physical contact ensued; it is disputed how the physical contact occurred between Ysasi and Rider, but both men ended up on the ground with Ysasi on top of Rider. See MSJ Memo. ¶¶ 11-12 (setting forth this fact); Response ¶¶ 13-14 (setting forth this fact). Brown entered the premises to assist Rider in handcuffing Ysasi. See Brown Aff. ¶ 12, at 3; MSJ Memo. ¶ 12, at 6 (setting forth this fact); Response at 7 (not disputing this fact). Rider deployed a Taser on Ysasi several times. See Brown Aff. ¶ 12, at 3; MSJ Memo. ¶ 12, at 6 (setting forth this fact); Response ¶ 14, at 7 (setting forth this fact). It is disputed whether Ysasi was resisting Brown’s and Rider’s attempts to handcuff him. See MSJ Memo. ¶ 12, at 6 (setting forth this fact); Response ¶ 14, at 7 (disputing this fact). Brown had requested additional units; other deputies arrived, and paramedics arrived to check Ysasi. See Brown Aff. ¶¶ 11-13, at 3; Police Video; MSJ Memo. ¶ 12, at 6 (setting forth this fact); Response ¶ 15, 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). During his incarceration, Ysasi was allowed to make personal telephone calls. See Affidavit of Tyron Hassen ¶ 5, at 1, filed December 16, 2013 (Doc. 44-2); Lea County Detention Center Call Detail Report, filed December 16, 2013 (Doc. 44-3)(“LCDC Call Log”); 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). The Honorable Dwight Crenshaw, Magistrate Judge for Lea County, State of New Mexico, concluded that there was probable cause to support the criminal charges:

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. ¶ 15, at 6-7 (setting forth this fact); Response ¶ 19, at 8 (not disputing this fact).

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, at 1-2.

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, 923 F.2d 769 (10th Cir.1991); Crudup v. Schulte, 12 Fed.Appx. 682 (10th Cir.2001) (unpublished)). “To the extent the unreasonable seizure claim is based on the deputies’ entry” onto Ysasi’s property, the Defendants contend that Brown and Rider “had a right, indeed an obligation,” to question Ysasi regarding a potential domestic violence incident, making their entry onto his property reasonable. MSJ Memo, at 9. The Defendants point to a number of facts that would have prompted Brown and Rider to suspect domestic abuse, including that Ysasi was yelling obscenities at Thompson, Brown, and Rider; that a smashed baby crib was near the dumpster; that Thompson was underage and fearful of their presence; that Vega made the 911 call, and reported that Ysasi and Thompson had been in a fight, resulting in Ysasi throwing the baby crib and other personal property in the trash; and that Ysasi refused to come over to discuss the incident with the Officers. See MSJ Memo, at 9. The Defendants contend that the New Mexico Legislature “recognizes the complexity of domestic abuse incidents” and encourages police officers to be proactive. MSJ Memo, at 9 (citing N.M. Stat. Ann. § 40-13-1.1 (“The legislature finds that domestic abuse incidents are complex and require special training on the part of law enforcement officers to respond appropriately to domestic abuse incidents.”); N.M. Stat. Ann. § 40-13-7(D) (“Any law enforcement officer responding to a request for assistance under the Family Violence Protection Act is immune from civil liability to the extent allowed by law.”); N.M. Stat. Ann. § 40-13-7(B)(5) (“A local law enforcement officer responding to the request for assistance shall be required to take whatever steps are reasonably necessary to protect the victim from further domestic abuse, including ... arresting the alleged perpetrator....”)). The Defendants contend that Brown and Rider were reasonable in their attempts to gather information while investigating a suspected domestic violence incident. See MSJ Memo, at 10.

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 Response at 11. He contends that, because Hubbert v. Moore involves Oklahoma law, it does not apply in this ease and that New Mexico law would not preclude him from re-litigating the issue of probable cause in this subsequent civil rights action. See Response at 11. In his view, Brown and Rider are not in privity with the State of New Mexico from the underlying criminal case, and so they cannot rely on preclusion principles in this case. See Response at 12 (citing Kinslow v. Ratzlaff, 158 F.3d 1104 (10th Cir.1998)).

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, 2010-NMSC-022 ¶ 9, 148 N.M. 228, 233 P.3d 362). The Defendants contend that New Mexico courts apply issue preclusion to a Magistrate Court’s decision. See Reply at 8 (citing State v. Orosco, 1982-NMCA-181, 99 N.M. 180, 655 P.2d 1024). In the Defendants’ view, the Court should apply issue preclusion and dismiss the unlawful arrest claim; they argue that Ysasi had a full-and-fair opportunity to litigate probable cause at his preliminary hearing, because he was represented by counsel, cross-examined witnesses, and presented his own witness. See Reply at 8.

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, 500 U.S. 44, 57, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991), a neutral judge must made a determination of probable cause within forty-eight hours of arrest, and in this case, a Magistrate Judge made a determination of probable cause to detain Ysasi on February 26, 2010, one day after Ysasi was booked into the LCDC. Reply at 10.

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.”). Ysasi explained his remaining claims: (i) a Fourth Amendment violation for Brown’s and Rider’s alleged unlawful entry onto his property; (ii) a Fourth and Fifth Amendment violation for his unlawful arrest; (iii) a claim for excessive force; and (iv) an Eighth Amendment claim that he was not allowed to bond himself out and was held incommunicado in LCDC. See Tr. at 24:17-27:14 (Blenden, Court). The Defendants explained that they were able to discern some of Ysasi’s claims, including the claims for unlawful entry, unlawful arrest, and excessive force, but that Ysasi changed his claim against the LCDC in the Response. See Tr. at 29:1-30:23 (Childress, Court). Had they understood the claims against the LCDC earlier, the Defendants asserted that they would have gotten affidavits from the LCDC to address the contention that the LCDC held him there for four days without bail. See Tr. at 30:24-31:23 (Court, Childress).

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, 239 F.3d 716 (5th Cir.2001), and United States v. Tobin, 923 F.2d 1506 (11th Cir.1991) (en banc), to support their argument that they could enter Ysasi’s property and approach his house for a “knock and talk,” and that officers may come onto someone’s property to investigate. Tr. at 41:4-42:2 (Court, Childress). Further, the Defendants asserted that, on the Police Video, Ysasi can be heard telling the Brown and Rider that they could enter the property and, in effect, giving his consent for their entry onto his property. See Tr. at 42:15-25 (Chil-dress).

Ysasi argued that Manzanares v. Higdon, 575 F.3d 1135 (10th Cir.2009), and Buck v. City of Albuquerque, 549 F.3d 1269 (10th Cir.2008), demonstrate that warrantless searches and seizures are presumptively unreasonable, that they must be based on probable cause and a totality of the circumstances, and that Brown and Rider needed, but lacked, a reasonable belief that some crime had been committed or was about to be committed. See Tr. at 44:2-45:2 (Blenden). Ysasi argued that, once Thompson retrieved her property and left, the stand-by was over, and that Brown and Rider did not have a basis for staying to investigate. See Tr. at 45:3-48:1 (Blenden). In Ysasi’s view, Rider made several statements that were inappropriate, such as threatening to take away Thompson’s child if she did not tell him Ysasi’ name, and other statements that indicated his intent to enter Ysasi’s property without a basis, such as stating that he was going to jump the fence to fight Ysasi, and yelling at Ysasi “you want to bet” three times after Ysasi said that Rider could not come onto the property. Tr. at 45:28-49:10 (Blenden, Court). Ysasi argued that Brown and Rider did not have a right to be on his property, and urged the Court that to deny the MSJ, especially in light of the presumptions to which he is entitled at the summary judgment stage, and of his contention that Manzanares v. Higdon and Buck v. City of Albuquerque state that whether an officer had probable cause or a reasonable ground to enter his property is a jury question. See Tr. at 49:17-25 (Blenden). The Court noted that the Defendants conceded that they did not have probable cause to come onto the property, acknowledged that there is a factual issue regarding whether Ysasi gave his consent, and are requesting summary judgment on the legal basis that, according to the Defendants, police officers can, with some justification, enter a person’s property to talk to the person. See Tr. at 51:1— 22 (Court, Childress). Ysasi argued that, when a person has told police officers that they may not come onto his or her property, the police officers cannot enter the property in an attempt to talk to the person; he contended that there is factual question whether Ysasi gave consent or withdrew his consent if he did give it, that Brown and Rider did not have reasonable suspicion that a crime had occurred, and that, at most, Brown and Rider had an inchoate hunch of domestic violence, which is not enough to justify them coming onto his property without his consent. See Tr. at 51:23-56:7 (Blenden, Court).

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 60:20-61:6 (Childress). The Defendants argued that, because a Magistrate Judge found probable cause for Ysasi’s arrest at the bind-over hearing, at which counsel represented Ysasi, cross-examined Brown and Rider, and presented his witness, issue preclusion applies and precludes Ysasi from re-litigating probable cause in this case. See Tr. at 61:7-24 (Childress). The Defendants admitted that, if the Court disagrees that issue preclusion bars the unlawful arrest claim, a jury would need to determine whether there was probable cause to arrest Ysasi on the charge of battery on a police officer, but argued that the Police Video reveals that Ysasi obstructed a police officer by refusing to give his name after he was sitting in the police car, and that there would only need to be probable cause for one of the charges to justify the arrest and bar the unlawful arrest claim. See Tr. at 63:2-66:15 (Court, Childress).

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 a Magistrate Judge made a determination of probable cause, which is different from a hearing on probable cause, the day after Ysasi was arrested. See 76:20-77:6 (Childress). The Defendants argued that it was “a pretty big leap” for Ysasi to initially allege conspiracy against the LCDC, and then to change his claim that he was not allowed to bond out within a three day period, that they would not have had a way to determine that was his claim, and that they did not receive any answers to interrogatories during discovery that revealed his claim See Tr. at 77:6-24 (Childress, Court).

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., 956 F.Supp.2d 1191, 1221 (D.N.M.2013) (Browning, J.) (quoting Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991)). See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “If the moving party will bear the burden of persuasion at trial, that party must support its motion with credible evidence — using any of the materials specified in Rule 56(c) — that would entitle it to a directed verdict if not controverted at trial.” Celotex Corp. v. Catrett, 477 U.S. at 331, 106 S.Ct. 2548 (Brennan, J., dissenting) (emphasis in original). Once the movant meets this burden, rule 56 requires the nonmoving party to designate specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. at 324, 106 S.Ct. 2548; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

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., 912 F.2d 1238, 1241 (10th Cir.1990). See Vitkus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir.1993) (“However, the nonmoving party may not rest on its pleadings but 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.” (internal quotation marks omitted)). Rule 56(c)(1) provides: “A party asserting that a fact ... is genuinely disputed must support the assertion by ... citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c)(1). It is not enough for the party opposing a properly supported motion for summary judgment to “rest on mere allegations or denials of his pleadings.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 256, 106 S.Ct. 2505. See Abercrombie v. City of Catoosa, 896 F.2d 1228, 1231 (10th Cir.1990); Otteson v. United States, 622 F.2d 516, 519 (10th Cir.1980) (“However, ‘once a properly supported summary judgment motion is made, the opposing party may not rest on the allegations contained in his complaint, but must respond with specific facts showing the existence of a genuine factual issue to be tried.’ ” (citation omitted)). Nor can a party “avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation.” Colony Nat’l Ins. Co. v. Omer, No. 07-2123, 2008 WL 2309005, at *1 (D.Kan. June 2, 2008) (citing Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir.2006); Fed.R.Civ.P. 56(e)). “In responding to a motion for summary judgment, ‘a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial.’ ” Colony Nat’l Ins. Co. v. Omer, 2008 WL 2309005, at *1 (quoting Conaway v. Smith, 853 F.2d 789, 794 (10th Cir.1988)).

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., 477 U.S. at 250, 106 S.Ct. 2505. A mere “scintilla” of evidence will not avoid summary judgment. Vitkus v. Beatrice Co., 11 F.3d at 1539 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. 2505). Rather, there must be sufficient evidence on which the factfinder could reasonably find for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 251, 106 S.Ct. 2505 (quoting Schuylkill & Dauphin Improvement Co. v. Munson, 81 U.S. 442, 448, 14 Wall. 442, 20 L.Ed. 867 (1871)); Vitkus v. Beatrice Co., 11 F.3d at 1539. “[TJhere is no evidence for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable ... or is not significantly probative, ... summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 249, 106 S.Ct. 2505 (citations omitted). Where a rational trier of fact, considering the record as a whole, could not find for the nonmoving party, there is no genuine issue for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

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, 106 S.Ct. 2505. Second, the ultimate standard of proof is relevant for purposes of ruling on a summary judgment, such that, when ruling on a summary judgment motion, the court must “bear in mind the actual quantum and quality of proof necessary to support liability.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 254, 106 S.Ct. 2505. Third, the court must resolve all reasonable inferences and doubts in favor of the nonmoving party, and construe all evidence in the light most favorable to the nonmoving party. See Hunt v. Cromartie, 526 U.S. 541, 550-55, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999); Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505 (“The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.”). Fourth, the court cannot decide any issues of credibility. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505.

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 qualified-immunity arena. In Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007), the Supreme Court concluded that summary judgment was appropriate where video evidence “quite clearly contradicted” the plaintiffs version of the facts. 550 U.S. at 378-81, 127 S.Ct. 1769. The Supreme Court explained:

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.

550 U.S. at 380-81, 127 S.Ct. 1769 (emphasis in original).

The Tenth Circuit applied this doctrine in Thomson v. Salt Lake County, 584 F.3d 1304 (10th Cir.2009), and explained:

[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., 584 F.3d at 1312. “The Tenth Circuit, in Rhoads v. Miller, [352 Fed.Appx. 289 (10th Cir.2009) (Tymkovieh, J.) (unpublished),] explained that the blatant contradictions of the record must be supported by more than other witnesses’ testimony[.]” Lymon v. Aramark Corp., 728 F.Supp.2d 1222, 1249 (D.N.M.2010) (Browning, J.) (citation omitted).

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 record that 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, 352 Fed.Appx. at 291-92 (internal quotation marks omitted). See Lymon v. Aramark Corp., 728 F.Supp.2d at 1249-50 (quoting Rhoads v. Miller, 352 Fed.Appx. at 291-92). In a concurring opinion in Thomson v. Salt Lake County, the Honorable Jerome A. Holmes, United States Circuit Judge for the Tenth Circuit, stated that courts must focus first on the legal question of qualified immunity and “determine whether plaintiffs factual allegations are sufficiently grounded in the record such that they may permissibly comprise the universe of facts that will serve as the foundation for answering the legal question before the court” before inquiring into whether there are genuine issues of material fact for resolution by the jury. 584 F.3d at 1326-27 (Holmes, J. concurring) (citing Goddard v. Urrea, 847 F.2d 765, 770 (11th Cir.1988) (Johnson, J., dissenting))(observing that, even if factual disputes exist, “these disputes are irrelevant to the qualified immunity analysis because that analysis assumes the validity of the plaintiffs’ facts”).

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, 873 F.2d 1377, 1386 (10th Cir.1989) (“Section 1983 does not provide a remedy if federal law does not create enforceable rights.”). Rather, 42 U.S.C. § 1983 authorizes an injured person to assert a claim for relief against a person who, acting under color of state law, violated the claimant’s federally protected rights. To state a claim upon which relief can be granted under § 1983, a plaintiff must allege: (i) a deprivation of a federal right; and (ii) that the person who deprived the plaintiff of that right acted under color of state law. See West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). Broken down differently, a plaintiff

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, 2010 WL 1608884, at *11 (D.N.M. Mar. 30, 2010) (Browning, J.) (quoting Summum v. City of Ogden, 297 F.3d 995, 1000 (10th Cir.2002)). Neither the civil-rights statutes nor the Fourteenth Amendment, however, are a license to the federal judiciary to displace state law through the creation of a body of general federal tort law. See Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976) (Fourteenth Amendment); Griffin v. Breckenridge, 403 U.S. 88, 101-102, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971) (civil-rights statute).

The Supreme Court of the United States has made clear that there is no respondeat superior liability under § 1983. See Ashcroft v. Iqbal, 556 U.S. 662, 676, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (“Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.”); Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 403, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). “An entity cannot be held liable solely on the basis of the existence of an employer-employee relationship with an alleged tortfeasor.” Garcia v. Casuas, No. CIV 11-0011 JB/RHS, 2011 WL 7444745, at *25 (D.N.M. Dec. 8, 2011) (Browning, J.) (citing Monell v. City of New York City Dept. of Soc. Servs., 436 U.S. 658, 689, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). It can be held liable only for its own unconstitutional or illegal policies, and not for the tortious acts of their employees.

Liability requires a showing that such policies were a “deliberate or conscious choice.” Barney v. Pulsipher, 143 F.3d 1299, 1307-08 (10th Cir.1998) (citations and internal quotations omitted). See Bd. of Cnty. Comm’rs v. Brown, 520 U.S. at 404, 117 S.Ct. 1382 (“[I]t is not enough for a § 1983 plaintiff merely to identify conduct properly attributable to the municipality. The plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the ‘moving force’ behind the injury alleged.” (emphasis in original)). These standards apply for allegations of liability based on failure to train and for “official de facto policies” that arise from “failing to adopt various policies to adequately protect” a class of persons. Barney v. Pulsipher, 143 F.3d at 1367, 1309 n. 8. “[Wjhen the municipality has actual or constructive notice that its action or failure to act is substantially certain to result in a constitutional violation, and it consciously or deliberately chooses to disregard the risk of harm,” it is liable. Barney v. Pulsipher, 143 F.3d at 1307.

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, 143 F.3d at 1307-08. Most cases, however, will not fall within this “narrow range of circumstances” without “a pattern of violations.” Barney v. Pulsipher, 143 F.3d at 1308.

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 and seizures.” U.S. Const, amend. IV. It also commands that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const, amend. IV. In determining whether a Fourth Amendment violation has occurred, courts must “assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” United States v. Jones, — U.S.-, 132 S.Ct. 945, 950, 181 L.Ed.2d 911 (2012) (Scalia, J.) (alteration in original) (quoting Kyllo v. United States, 533 U.S. 27, 31, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) (Scalia, J.)).

“Not all searches require a warrant. The hallmark of the Fourth Amendment is reasonableness.” United States v. Harmon, 785 F.Supp.2d 1146, 1157 (D.N.M.2011) (Browning, J.). See United States v. McHugh, 639 F.3d 1250, 1260 (10th Cir.2011) (“[T]he ultimate touchstone of the Fourth Amendment is ‘reasonableness.’ ”) (quoting Brigham City, Utah v. Stuart, 547 U.S. 398, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006)). “In the criminal context, reasonableness usually requires a showing of probable cause.” Herrera v. Santa Fe Pub. Sch., 792 F.Supp.2d 1174, 1184 (D.N.M.2011) (Browning, J.) (quoting Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie Cnty. v. Earls, 536 U.S. 822, 828, 122 S.Ct. 2559, 153 L.Ed.2d 735 (2002)). The Supreme Court of the United States has stated in the law enforcement context that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (footnotes omitted).

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 132 S.Ct. at 948. On the eleventh day, task force agents attached the GPS device to the bottom of the defendant’s car while the car was in Maryland. The agents then used the GPS device to track the defendant’s movements over the next twenty-eight days, replacing the battery once, and collecting over two-thousand pages of data sent from the device. See 132 S.Ct. at 948.

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.’ ” 132 S.Ct. at 949. Justice Scalia reasoned that the plaintiff United States of America’s conduct was a Fourth Amendment search, because the government trespassed on a constitutionally protected area. See 132 S.Ct. at 949 (“The Fourth Amendment provides ... that ‘[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.’ It is beyond dispute that a vehicle is an ‘effect’ as that term is used in the Amendment.”). Such a physical intrusion, Justice Scalia opined, would have come within the Framers’ intended definition of a “search”: “It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.” 132 S.Ct. at 949. Justice Scalia reconciled the Supreme Court’s conclusion that attaching a GPS device to track a jeep in plain view was a Fourth Amendment search with New York v. Class, 475 U.S. 106, 106 S.Ct. 960, 89 L.Ed.2d 81 (1986), in which the Supreme Court concluded that a visual examination of the outside of a vehicle while in plain view does not constitute a search, by noting that “[i]n Class itself we suggested that this [physical invasion] would make a difference, for we concluded that an officer’s momentary reaching into the interior of a vehicle did constitute a search.” 132 S.Ct. at 952.

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....

132 S.Ct. at 949-50.

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.” 132 S.Ct. at 950. Justice Scalia concluded, however, that the Supreme Court “need not address the Government’s contentions” in relation to the Katz v. United States reasonable-expectation-of-privacy test analysis, because the trespass-based search approach, which existed at the time of the Fourth Amendment’s adoption, disposed of the issue:

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. Unit ed 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.

132 S.Ct. at 950-51 (some alteration in original)(footnotes omitted).

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.” 132 S.Ct. at 955 (Sotomayor, J., concurring). She continued:

Of course, the Fourth Amendme