Appeal from the United States District Court for the District of New Mexico (D.C. No. CIV-06-0923 BB/WDS).
The opinion of the court was delivered by: Lucero, Circuit Judge
Before LUCERO, ANDERSON, and O'BRIEN, Circuit Judges.
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-inlaw 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.*fn1 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 (1985), and we affirm.
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.*fn2 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.
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.*fn3 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").*fn4 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.
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 U.S. 737, 744 (1976) (a grant of partial summary judgment on liability but not damages is not final); Fogarty v. Gallegos, 523 F.3d 1147, 1153 (10th Cir. 2008) (a denial of qualified immunity on summary judgment is appealable to the extent it turns on a question of law). We review the denial of a summary judgment motion raising qualified immunity de novo, Roska ex rel. Roska v. Sneddon, 437 F.3d 964, 971 (10th Cir. 2006), applying the same standard as the district court. When a defendant raises an affirmative defense of qualified immunity, the burden rests with the plaintiff to show that the defendant's actions fall outside the scope of the immunity. See Weigel v. Broad, 544 F.3d 1143, 1151 (10th Cir. 2008). In determining whether the plaintiff has made that showing, the district court considers whether the facts taken in the light most favorable to the plaintiff show that the defendant's conduct violated a constitutional right. Fogarty, 523 F.3d at 1155 (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)). If that initial inquiry is satisfied, the court considers whether the right violated was clearly established.*fn5 Id.
Marcantel and Hix contend that the search of the Poolaws' property was constitutional because it was authorized by a warrant supported by probable cause. Marcantel and Hix argue in the alternative that even if the search violated the Poolaws' rights, they cannot be held liable under § 1983 because they were not present when the warrant was executed. We disagree with both contentions.
If the Hix affidavit established probable cause for the search, the search of the Poolaws' property was constitutional. We review the district court's ruling on the sufficiency of the warrant de novo, but we pay great deference to the probable cause determination made by the judge who issued the warrant. United States v. Perrine, 518 F.3d 1196, 1201 (10th Cir. 2008). We will uphold a warrant if the issuing judge had a "substantial basis for . . . conclud[ing] that a search would uncover evidence of wrongdoing." Illinois v. Gates, 462 U.S. 213, 236 (1983) (quotations omitted); accord United States v. Grimmett, 439 F.3d 1263, 1268 (10th Cir. 2006).
"In determining whether probable cause exists to issue a warrant, the issuing judge must decide whether, given the totality of the circumstances, there is a fair probability that contraband or evidence of a crime will be found in a particular place." Grimmett, 439 F.3d at 1270 (quotation omitted); see also United States v. Harris, 369 F.3d 1157, 1165 (10th Cir. 2004) ("Probable cause exists when the facts presented in the affidavit would warrant a man of reasonable caution to believe that evidence of a crime will be found at the place to be searched." (quotation omitted)). But, a court may not "arrive at probable cause simply by piling hunch upon hunch." United States v. Valenzuela, 365 F.3d 892, 897 (10th Cir. 2004). We assess the validity of the warrant "on the basis of the information that the officers disclosed, or had a duty to discover and to disclose, to the issuing [judge]," Maryland v. Garrison, 480 U.S. 79, 85 (1987); see Wilkins v. DeReyes, 528 F.3d 790, 802 (10th Cir. 2008), looking both at the facts that support probable cause and those that militate against it, Valenzuela, 365 F.3d at 897.
Marcantel and Hix do not contend that facts outside the affidavit, but known to the issuing judge, supported its issuance, thus we confine our review to the Hix affidavit. See Aguilar v. Texas, 378 U.S. 108, 109 n.1 (1964) ("It is elementary that in passing on the validity of a warrant, the reviewing court may consider only information brought to the magistrate's attention."), overruled on other grounds by Gates, 462 U.S. at 238.*fn6
Although it describes the progress of the McGrane homicide investigation, less than a page of the Hix affidavit links the investigation to the Poolaws' property. The district court characterized the warrant as "issued because [the Poolaws'] daughter was married to Astorga, she stayed overnight at their house and did not go to work the next morning, and Astorga was on the run." Sept. 2007 Order, at 7. As Marcantel and Hix note, the affidavit also mentions that Astorga had listed Marcella as his emergency contact when arrested previously and that she was pregnant by him.*fn7 Marcantel and Hix claim that the district court erred in concluding that these facts did not provide a substantial basis for the warrant.
We start our analysis with the inarguable proposition that "mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause." Ybarra v. Illinois, 444 U.S. 85, 91 (1979). In Ybarra, the proximity at issue was physical, but propinquity is specifically defined as nearness in "kindred or parentage." Black's Law Dictionary 1255 (8th ed. 2004). In United States v. Vazquez-Pulido, this court accepted the proposition that "mere propinquity" includes sibling relationships when reviewing probable cause to arrest. 155 F.3d 1213, 1216 (10th Cir. 1998) (citing Ybarra, 444 U.S. at 91). We see no reason to distinguish between probable cause to arrest, the issue in Vazquez-Pulido, and probable cause to search, the issue here. Our sibling circuits to address the question have held that a search warrant resting primarily on a "familial relation" is "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." United States v. Herron, 215 F.3d 812, 814 (8th Cir. 2000); see also Walczyk v. Rio, 496 F.3d 139, 162-63 (2d Cir. 2007) (a warrant inaccurately implying that the defendant had lived with his mother recently did not establish probable cause to search the mother's home).
District courts directly addressing whether a familial relationship constitutes probable cause have also uniformly held that it does not. United States v. Fernandez-Morris, 99 F. Supp. 2d 1358, 1368 (S.D. Fla. 1999) (one's status as the father of a suspect is insufficient to establish probable cause); Timberlake ex rel. Timberlake v. Benton, 786 F. Supp. 676, 686 (M.D. Tenn. 1992) (one's status as the girlfriend or sister of a suspect is insufficient to establish probable cause); Doe v. City of Chicago, 580 F. Supp. 146, 150-51 (N.D. Ill. 1983) (one's status as the child of a suspect is insufficient to establish probable cause). Based on Ybarra, Vazquez-Pulido, the plain meaning of propinquity, and the unanimity of the case law from other jurisdictions, we discern a clear rule: A familial relationship to someone suspected of criminal activity, without more, does not constitute probable cause to search or arrest.
Therefore, we must consider whether the additional facts linking Astorga to the Poolaws' property provide the additional particularized information necessary to establish probable cause. From the face of the affidavit, the following additional facts are relevant: (1) Astorga listed Marcella as his spouse and emergency contact during previous arrests; (2) Marcella was pregnant; (3) Marcella spent the night of the McGrane homicide at Rick and Cindy's home; (4) Marcella called in sick to work the next day, which was unusual for her; (5) Marcella resided with Astorga at #31 Lark Road; and (6) detectives also had a residence for her listed as 9820 Edith NW.
We agree with the district court that the affidavit fails to establish the "apparent fact" or "reasonable . . . assum[ption]" that either Marcella or Astorga resided "at least part time" with the Poolaws. Rather, these are unsupported conclusions that Hix leapt to knowing only that Marcella had spent a single night there. An overnight stay is not part-time residency. Further, the actual facts in the affidavit militate against either conclusion: Marcella and Astorga lived at a different address, #31 Lark Road, a fact confirmed by neighbors and Marcella herself, and the only alternative residence known to BCSO detectives was 9820 Edith NW. Certainly, a single night indicated a possibility that Marcella lived at her parents' part time, but a possibility is not the probability that the Fourth Amendment requires. Grimmett, 439 F.3d at 1270.
Further, the connection between the Poolaws' property and Astorga-the actual suspect and the would-be source of evidence of criminal activity-is even more attenuated. It relies on the assumption that if Marcella had contact with the property, so too did Astorga. The affidavit establishes a close familial connection between Astorga and Marcella, and it connects Marcella to the property because she stayed there the night of the McGrane homicide. But linking Marcella to the property is not equivalent to linking the McGrane homicide to the property; to find probable cause, it is the latter connection that must be established. See United States v. Gonzales, 399 F.3d 1225, 1231 (10th Cir. 2005). Further circumstances described in the affidavit-that Marcella had uncharacteristically called in sick to work-do not rise to a fair probability that such a connection exists, particularly in light of the fact that Astorga and Marcella resided elsewhere. See Harris, 369 F.3d at 1165.
No fact in the Hix affidavit suggests that Marcella had any contact with Astorga or that Astorga had any contact with the Poolaws' property during which time Astorga could have hidden evidence of the McGrane homicide.*fn8 Rather, following its description of Marcella's connection to the property, the Hix affidavit enters into pure speculation:
Based on the apparent fact that Marcella Poolaw (Astorga) resides at least part time at 343 Calle Del Banco . . . 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 (emphases added).
Thus, the ultimate conclusion that Astorga or evidence of the McGrane homicide would be found at the Poolaws' property was based on a mere hunch that Astorga lived there, piled upon the hunch that Marcella lived at the property.*fn9 See Valenzuela, 365 F.3d at 897; see also Gonzales, 399 F.3d at 1229-30 (an officer cannot reasonably rely upon a warrant containing "no facts explaining how the address was linked to [the defendant] . . . or the suspected criminal activity, or why the officer thought the items to be seized would be located at the residence").
Nonetheless, Marcantel and Hix argue that "[l]aw enforcement officers know and are trained that fugitives like Astorga will run to their family and friends," and that this experience is sufficient to establish a substantial nexus between Astorga and the Poolaws' property. Appellant's Br. at 14. Marcantel and Hix claim that our precedent does not require law enforcement officers to obtain direct evidence or possess personal knowledge that evidence or contraband is located on property to be searched; rather, they contend that officers can rely on training and experience to establish the required nexus. They cite United States v. $149,442.43 in U.S. Currency for the proposition that "[c]courts often rely on the opinion of police officers as to where contraband may be kept." 965 F.2d 868, 874 (10th Cir. 1992) (citations omitted). But unlike the affidavit at issue in $149,442.43 in U.S. Currency, the Hix affidavit does not mention any training or experience regarding where fugitives hide.*fn10 Even if Hix had included such training in the affidavit, an officer's expertise cannot be invoked to nullify the Supreme Court's holding that mere propinquity is insufficient to establish probable cause. Ybarra, 444 U.S. at 91. Considering the totality of the circumstances and the lack of specific information linking Astorga to the Poolaws' property, we conclude that there was not probable cause to issue the search warrant. See Grimmett, 439 F.3d at 1270.
Because there was no probable cause to issue the warrant, the search of the Poolaws' property violated their Fourth Amendment rights. Moreover, because the "search [wa]s illegal and not supported by probable cause, the justification for using the search as the foundation for the seizure disappears because it was the connection of the individual with a location suspected of harboring criminal activity that provided the reasonable basis for the seizure." Jacobs v. City of Chicago, 215 F.3d 758, 772 (7th Cir. 2000) (citation omitted); see also Michigan v. Summers, 452 U.S. 692, 703 (1981) ("[A] detention represents only an incremental intrusion on personal liberty when the search of a home has been authorized by a valid warrant." (emphasis added)). Because Marcantel and Hix do not assert independent cause or suspicion for the detention of Rick and Cindy while their property was searched, this seizure also violated their constitutional rights. Jacobs, 215 F.3d at 772.
We next consider Marcantel and Hix's assertion that even if the search and seizure violated the Poolaws' Fourth Amendment rights, they cannot be liable under § 1983 because they were not present during its execution. While a supervisory relationship alone is insufficient for liability under § 1983, Duffield v. Jackson, 545 F.3d 1234, 1239 (10th Cir. 2008), an officer need not execute a search personally to be liable. See Snell v. Tunnell, 920 F.2d 673, 700-01 (10th Cir. 1990). Rather, a defendant may be liable if a plaintiff can show that an "affirmative link exists between the [constitutional] deprivation and either the [officer's] personal participation, his exercise of control or direction, or his failure to supervise." Green v. Branson, 108 F.3d 1296, 1302 (10th Cir. 1997) ...