Poolaw v. Marcantel, 07-2254.

Citation565 F.3d 721
Decision Date04 May 2009
Docket NumberNo. 07-2254.,07-2254.
PartiesRick POOLAW; Cindy Poolaw; Chara Poolaw, Plaintiffs-Appellees, v. Greg MARCANTEL and Timothy Hix, in their individual capacities, Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

William D. Slease (Jonlyn M. Martinez with him on the briefs), Slease & Martinez, P.A., Albuquerque, NM, for the Defendants-Appellants.

George L. Bach, Jr. (Jane Gagne and Philip B. Davis with him on the briefs), ACLU of New Mexico, Albuquerque, NM, for the Plaintiffs-Appellees.

Before LUCERO, ANDERSON, and O'BRIEN, Circuit Judges.

LUCERO, Circuit Judge.

This case requires us to address the extent to which a familial connection to a suspect supports either probable cause for a search warrant or reasonable suspicion for an investigative detention. Following the murder of Bernalillo County Sheriff's Deputy James McGrane, Lieutenant Gregg Marcantel and Detective Timothy Hix obtained a warrant and ordered the search of property belonging to Rick and Cindy Poolaw, the parents-in-law of the primary suspect, Michael Paul Astorga. Marcantel later ordered the stop of Chara Poolaw, Astorga's sister-in-law. The search and stop were based on little more than the Poolaws' status as Astorga's in-laws.

Although we are sympathetic to the urgency of the officers' search for Astorga, we conclude that these actions violated the Fourth Amendment. Adhering to established Supreme Court precedent and the unanimous case law of this and other courts, we hold that a familial relationship is insufficiently particularized to justify invading an individual's reasonable expectation of privacy. Applying this rule to the present case, we conclude that the Poolaws' status as Astorga's in-laws, combined with the meager additional facts known to Marcantel and Hix, were insufficient to support a finding of either probable cause to search the property or reasonable suspicion to detain Chara.1 Further, because these Fourth Amendment principles were clearly established at the time of their actions, Marcantel and Hix are not entitled to qualified immunity. We have jurisdiction under 28 U.S.C. § 1291, Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), and we affirm.

I
A

In the early hours of March 22, 2006, Bernalillo County Sheriff's Deputy James McGrane was shot and killed while conducting a traffic stop. Bernalillo County Sheriff's Office ("BCSO") investigators determined that the truck Deputy McGrane had stopped belonged to Astorga, who was also wanted in connection with the November 2005 homicide of Candido Martinez. Based on this information, the investigators identified Astorga as the primary suspect in the McGrane homicide, and a manhunt ensued.

BCSO investigators discovered that Astorga had been in the area of the McGrane homicide on the night in question and that he lived at # 31 Lark Road, approximately fifteen miles south of where McGrane was killed. Neighbors of # 31 Lark Road told investigators that a man matching Astorga's description had recently moved in with his "pregnant girlfriend." Upon canvassing the area, officers also found the vehicle Deputy McGrane had stopped the night he was killed parked in the vicinity of Astorga's address.

Investigators then sought out Marcella because Astorga had listed her as his spouse and emergency contact when he had been arrested in the past. After detectives failed to locate Marcella at her known address, Lieutenant Marcantel telephoned Rick, a retired New Mexico State Police officer and acquaintance. Rick confirmed that Marcella was his daughter and that she was pregnant by Astorga. He also told Marcantel that she had spent the night of March 21 at Rick and Cindy's home. Throughout the day, Rick called Marcantel to tell him that Marcella was no longer at the house, that she had uncharacteristically called in sick to work, and, then, that he had ultimately located her.

At the time of the investigation, Rick lived at 343 Calle Del Banco with Cindy and their daughter Chara.2 Two days after the McGrane homicide, Astorga remained at large. BCSO investigators, including Marcantel and Hix, decided that the Poolaws' property should be searched. Hix prepared an affidavit seeking a warrant to search the Poolaws' property ("the Hix affidavit"), in which he provided a general description of the McGrane homicide and investigation. In the affidavit, Hix gave specific information explaining why Astorga was identified as the suspect. He then asserted a connection between Astorga and the Poolaws' property:

On previous arrests, Michael Paul Astorga listed Marcella Astorga as his spouse and emergency contact. Police detectives have had contact with Ms. Marcella Astorga, and know her as Marcella Poolaw, and that she is currently pregnant BCSO Lieutenant G. Marcantel recognized the name Poolaw and contacted Rick Poolaw at approximately 0830 hours and confirmed he had a daughter named Marcella Poolaw and she was pregnant by Michael Paul Astorga. Rick advised Lieutenant Marcantel that when he left home (343 Calle Del Banco, described above to be searched) that morning, Marcella had got up and was getting ready for work (indicating that she resides there at least part time). Rick Poolaw told Lieutenant Marcantel he would attempt to locate his daughter. Rick later contacted Lieutenant Marcantel and advised him that he had contacted Marcella's place of employment, and was told she had called in sick. Rick stated that Marcella had not indicated to him that she was sick and that it was very unusual for her not to show up for work. Rick stated that he would continue to attempt to locate Marcella. Based on the apparent fact that Marcella Poolaw (Astorga) resides at least part time at 343 Calle Del Banco (described above to be searched) it would be reasonable to assume that her husband, Michael Astorga, resides there at least part time as well and may have left or hidden evidence related to this crime at this residence. It is also reasonable to assume that, because the entire property is owned by Michael Astorga's in-laws, that he may have secreted himself or any evidence within any of the structures on the property.

In addition, the affidavit included the facts that Astorga was recently seen by neighbors moving in at # 31 Lark Road with his "girlfriend" and that "[d]etectives attempted to contact [Marcella] at her residence located at 9820 Edith NW, but she was not there." A New Mexico state court judge issued a warrant on the afternoon of March 24.

That same evening, BCSO officers—but not Marcantel or Hix—executed the warrant on the Poolaws' property under the supervision of then-Sergeant Scott Baird. During the search, Rick and Cindy were handcuffed outside their home.

A few days later, Marcantel learned that Chara had called Cindy and had asked whether she could "get in trouble" for having a gun. Based on "the fact that Chara was a loved one of Michael Paul Astorga's wife" and "her admission that she had a gun," Marcantel ordered her stopped to determine whether the gun was the McGrane homicide weapon. Chara was detained, handcuffed, and held in a squad car while her car was searched. After the gun found in her car was determined not to be the murder weapon, she was released.

B

Alleging that the search and seizures violated the Fourth Amendment, Rick, Cindy, and Chara ("the Poolaws") brought this § 1983 action in the United States District Court for the District of New Mexico. Named as defendants were Bernalillo County Sheriff Darren White, Lieutenant Marcantel, Detective Hix, and the Bernalillo County Board of Commissioners.3 First, the Poolaws alleged that the detentions of Rick, Cindy, and Chara constituted unreasonable seizures ("Claim I"). Second, the Poolaws alleged that the defendants had unreasonably searched their property ("Claim II").4 In their answer, the defendants raised a number of affirmative defenses, including qualified immunity.

On the undisputed facts, the Poolaws moved for partial summary judgment, arguing that the warrant to search their property lacked probable cause on its face or, in the alternative, omitted material information negating probable cause, and thus the search and incidental seizure of Rick and Cindy violated the Fourth Amendment. In addition, they argued that Marcantel lacked probable cause to order Chara's detention, and thus, the stop was unconstitutional. Defendants responded and filed their own motion for partial summary judgment based on qualified immunity.

In a single order, the district court granted summary judgment in favor of the Poolaws on Claims I and II, denying Marcantel and Hix qualified immunity. Poolaw v. White, Mem. Op. and Order, No. CIV 06-923, at 13 (D.N.M. Sept. 26, 2007) ("Sept.2007 Order"). Reviewing the Hix affidavit, the district court found that it established only that Marcella was married to Astorga, that she stayed overnight at Rick and Cindy's home and did not go to work the next day, and that Astorga was on the run. Id. at 7. Regarding Astorga's connection to the property, the court concluded that the affidavit "provided only inferences and assumptions of dubious reliability," which were "simply not enough to provide probable cause to violate the Poolaws' right of privacy in their home." Id. at 8-9. In addition, the court found that Chara's status as Astorga's sister-in-law and her conversation with Cindy about a gun did not create reasonable suspicion of criminal activity justifying Chara's detention. Id. at 12-13. Concluding that these Fourth Amendment principles were clearly established when the incidents occurred, the court denied qualified immunity. Marcantel and Hix now appeal.

II

Orders granting partial summary judgment or denying summary judgment are generally not final appealable orders under 28 U.S.C. § 1291, but we have jurisdiction to review a denial of qualified immunity if the denial turned on a question of law. Liberty Mut. Ins. Co. v. Wetzel, 424...

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