On October 22, 2015, the Tenth Circuit Court of Appeals decided Maresca v. Fuentes et al. [i], which is instructive for law enforcement officers regarding the potential consequences of typographical errors that lead to felony stops. The relevant facts of Maresca, taken directly from the case, are as follows:
Unless noted otherwise, the parties do not dispute the following facts: The Maresca family—Stephen Maresca, Heather Martin-Maresca, their three children (seventeen-year-old Anthony Maresca, fourteen-year-old C.M., and nine year-old M.M.), and their dog (Maya)—were returning from a family hiking trip on March 14, 2013, when Fuentes saw them driving by in their red 2004 Ford F-150 pickup truck. The Marescas had violated no traffic laws and there was nothing about their truck that caught Fuentes’s attention. Mr. Maresca—a former police officer—waved at Deputies Fuentes and Grundhoffer as the Marescas drove by.
Fuentes, who had completed training as a new officer approximately two months earlier, was on routine traffic patrol and decided randomly to follow the Marescas. While doing so, Fuentes used the on-board computer in her vehicle to enter the Marescas’ license plate number into the National Crime Information Center (“NCIC”) database. Her entry, however, was off by one digit: the Marescas’ plate was 526-PLF, but Fuentes entered 525-PLF.
As a result of this typing error, Fuentes’s NCIC screen returned an entry for a maroon (or red) 2009 four-door Chevrolet sedan with expired plates, which was listed as stolen. Fuentes failed to notice the considerable mismatch between the description of the stolen car in the NCIC report (a maroon 2009 Chevrolet sedan with expired plates) and the Marescas’ truck (a red 2004 Ford pickup truck with current plates). These differences are not minor; they are material and obvious. The car in the NCIC report did not match the Marescas’ truck in (1) color, (2) type of vehicle, (3) make, (4) model, (5) year, (6) license plate number, or (7) license plate registration status.
The NCIC screen also stated: “Warning—the following stolen vehicle record contains expired license plate data. Use caution, contact entering agency to confirm status.” Aplt. App. at 239. Bernalillo County officers are, in any event, trained to double-check stolen vehicle reports and are told it is a good practice to have dispatch verify the information in those reports before approaching a potentially stolen vehicle.
Notwithstanding the NCIC warning and the officers’ training, Fuentes and Grundhoffer (who was patrolling with Fuentes and traveling behind her in a separate car) did not take any steps to confirm that the Marescas’ vehicle was in fact stolen before stopping the Marescas. This is so even though nothing in the record suggests that there were exigent circumstances that necessitated Fuentes stopping the Marescas immediately, before taking time to verify that the vehicle they were in was stolen.
At 5:06 p.m., Fuentes pulled the Marescas over with her overhead lights flashing. As she did so, Fuentes called the Marescas’ actual plate number, 526-PLF, into dispatch, stating that the vehicle was stolen. Without waiting for dispatch to verify the information, Fuentes stated over the radio that she was going to conduct a “felony stop.” This announcement caused other deputies to respond to assist Fuentes with the stop. Before the other deputies arrived, Fuentes, aided initially only by Grundhoffer, implemented “felony stop” procedures. The two deputies parked their vehicles behind the Marescas’ stopped truck, stood behind the open doors of their vehicles, drew their weapons, and aimed them at the Marescas’ vehicle. Fuentes began shouting commands to the Maresca family: she first ordered all of them to put their hands up in the air where she could see them. Then she ordered Mr. Maresca to turn off his truck, throw his keys out the window, and exit the truck with his hands in the air. Next, Fuentes ordered Mr. Maresca to lift his shirt by the collar and turn around so she could check his waistband for weapons. She then ordered him to walk backwards toward the officers and get on his knees, then lie on the highway on his stomach with his arms out and his legs up in the air. Fuentes then repeated this procedure with Mrs. Maresca. The Marescas complied with every command.
As they were lying prone on the ground, Mr. and Mrs. Maresca told Fuentes and Grundhoffer that there were children and a dog in the truck. Mr. Maresca further told the officers that there had to be a mistake, and implored them to check his license and check “everything” because his family was in the truck. Id.at 154. Mrs. Maresca likewise asked the deputies to check the truck’s license and registration.
The officers ignored the Marescas and did not ask whether they owned the vehicle. In his deposition, Grundhoffer, who was aiding Fuentes, admitted that he thought the situation was “a little weird.”
Fuentes continued to aim her handgun at the Marescas’ truck even after Mr. and Mrs. Maresca were on the ground and after they told the deputies that there were children in the truck. The deputies ordered the two boys, C.M. and Anthony, one by one from the truck using the same “felony stop” procedure—keeping their hands in the air, lifting their shirts to expose their waistlines, walking backwards toward the officers, and lying prone on the ground. As the officers ordered the children out one by one, Mr. Maresca told the deputies that “[t]his does not warrant a felony stop.” Id. at 324. Finally, Grundhoffer ordered nine-year-old M.M. to exit the truck and lift her shirt. The evidence is disputed as to whether the deputies ordered M.M. to lie on the ground with her hands behind her back or, instead, let her stand to the side, telling her “stern[ly]” not to move, id.
After all of the Marescas were out of the truck, Maya (the dog) became upset, jumped out of the truck, and ran into the highway. Mrs. Maresca feared that Maya would be run over. Mr. Maresca called Maya to him and the deputies permitted Mr. Maresca to hold onto the dog.
While Fuentes and Grundhoffer were getting the Marescas out of their truck and onto the ground, additional deputies—Defendants Tonna and Lucero—arrived. Because the “felony stop” was blocking much of the two-lane highway where it occurred, Lucero began trying to direct traffic around the scene. The officers eventually had to stop highway traffic in both directions.
After all of the Marescas were out of the truck and lying on the highway (except perhaps M.M.), Defendants Deputy Swint and Deputy Quintana arrived. Although disputed, the Marescas presented evidence that Swint stood directly over fourteen-year-old C.M., as he was lying prone on the ground as ordered, and pointed a gun at C.M., leading C.M. to cry and “freak out” for fear of being shot, saying “Mom, they’re going to shoot us, they’re going to shoot me.”
There was also evidence, which Defendants disputed, that Quintana stood over Mrs. Maresca, as she was lying on the highway, and pointed his gun at her head with his finger on the trigger in what Mr. Maresca characterized as a “gangster thing where he turns [the gun] on the side.” Id. at 327. Mrs. Maresca, fearing that she would be inadvertently shot, began to “panic,” screaming and crying. Id. As the stop continued, the children were crying and Mrs. Maresca tried to talk with them to calm them down. Eventually, deputies handcuffed each member of the Maresca family (except M.M.) and locked them in separate squad cars (except that M.M. was locked in a car with her mother).
Fuentes and Grundhoffer then checked the Marescas’ vehicle to insure that there was no one still in the truck. In doing so, the deputies approached the Marescas’ truck from opposite sides, with their guns drawn, warning each other to “[w]atch out for cross-fire.” Id. at 324.
Finally, between seven and fifteen minutes into the stop, Fuentes returned to her car and re-ran the Marescas’ license plate. She then realized that the Marescas’ truck did not match the stolen vehicle information on her computer screen. Fuentes asked Tonna whether she was going to get in trouble, and he told her to get the family out of the patrol cars, uncuff them, and call a sergeant. Sergeant John Bartholf was called to the scene. He explained to Mr. and Mrs. Maresca that Fuentes was a new officer. The parties dispute whether Bartholf, or any other officer on the scene, apologized to the Marescas. Mrs. Maresca asked Quintana, in front of Sgt. Bartholf: “Why did you think it was necessary to point your gun at me when I’m already laying on the ground?” Id. at 327. According to Mrs. Maresca, Quintana just smiled and walked away. [ii]
The Marescas sued the officers for false arrest and excessive force. The district court granted qualified immunity to the officers. The Marescas appealed to the Tenth Circuit Court of Appeals.
The five issues on appeal we will examine are as follows:
- Whether the “felony stop” of the Marescas constituted an “arrest” under the Fourth Amendment;
- Whether the Deputy Fuentes had probable cause to arrest the Marescas;
- Whether Deputy Grundhoffer was entitled to qualified immunity for relying on information provided him by Deputy Fuentes that the car was stolen;
- Whether the force used by the deputies exceed the force that reasonable under the facts of this case; and
- Whether the Marescas suffered more than de minimus injuries from the force used by the deputies.
Issue One: Did the “felony stop” of the Marescas constitute as an “arrest” under the Fourth Amendment?
Regarding this issue, the court first discussed relevant legal principals. The principals were as follows:
- An arrest must be based on “probable cause to believe that a person committed a crime,” and “is distinguished” from an investigative detention “by the involuntary, highly intrusive nature of the encounter.” Cortez, 478 F.3d at 1115 (internal quotation marks omitted) [iii]
- An investigative detention, on the other hand, permits an officer to “stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity may be afoot, even if the officer lacks probable cause.” Cortez, 478 F.3d at 1115 (internal quotation marks omitted). Investigative detentions are characterized by their “limited intrusion on the personal security of the suspect.” Florida v. Royer, 460 U.S. 491, 500 (1983). [iv]
- [T]he use of firearms, handcuffs, and other forceful techniques does not necessarily transform a Terry detention into a full custodial arrest,” Melendez-Garcia, 28 F.3d at 1052 (emphasis added). But that is so “when the circumstances reasonably warrant such measures” in order for the officers to conduct an investigative detention safely. Id.; see, e.g. United States v. Shareef, 100 F.3d 1491, 1495-99, 1506 (10th Cir. 1996) [v]
As the court noted, there are times when officers can use felony stop tactics and it not amount to an arrest. For example, the court cited the United States v. Shareef [vi], in which officers displayed firearms, removed the occupants from car and frisked and handcuffed them. The court stated that this action did not transform the stop into an arrest because the officers reasonably suspected one of the motorists as armed and dangerous. Additionally, the court discussed the United States v. Perdue [vii], in which officers removed two occupants from a vehicle and gunpoint and ordered them to lie on the ground. The court said that in that case, the officers had a reasonable belief that the occupants were armed and dangerous.
The court then applied the principals above to the facts of the Marescas’ case. The court noted that, here the Marescas complied with all the officer’s commands. The also noted that there was nothing to indicate that the Marescas were armed and dangerous. In fact, had Officer Fuentes confirmed the license plate, she would have seen that nothing indicated a problem with the Marescas’ vehicle. Yet they were still all brought out the car at gunpoint, and notably, even the children, were made to lie on the ground, handcuffed and placed in separate patrol cars. The court then held that this action did go beyond a normal Terry stop and transformed the encounter into an arrest, since the officers had no reasonable basis for believing the Maresca’s were armed and dangerous.
Issue Two: Did Deputy Fuentes have probable cause to arrest the Maresca’s?
The court then examined relevant legal principals related to this issue. The principals were as follows:
- Probable cause exists only if, in the totality of the circumstances, the “facts available to the officers at the moment of the arrest would warrant a [person] of reasonable caution in the belief that an offense has been committed.” Beck v. Ohio, 379 U.S. 89, 96 (1964) (internal quotation marks omitted). [viii]
- In the qualified immunity context, we ask “whether an objectively reasonable officer could conclude that the historical facts at the time of the arrest amount to probable cause.” Cortez, 478 F.3d at 1116. [ix]
- W]hat is generally demanded of the many factual determinations that must regularly be made by agents of the government—whether the magistrate issuing a warrant, the police officer executing a warrant, or the police officer conducting a search or seizure under one of the exceptions to the warrant requirement—is not that they always be correct, but that they always be reasonable. Illinois v. Rodriguez, 497 U.S. 177, 185 (1990). [x]
- [T]he probable cause standard of the Fourth Amendment requires officers to reasonably interview witnesses readily available at the scene, investigate basic evidence, or otherwise inquire if a crime has been committed at all before invoking the power of warrantless arrest and detention. Cortez, 478 F.3d at 1117 (internal quotation marks omitted). [xi]
- [W]e do not suggest that an officer must always double-check a database hit or await confirmation from dispatch that the hit is accurate. There are undoubtedly circumstances that would justify a reasonably prudent officer’s decision to bypass such steps. However, in the circumstances of this case, which did not suggest any likely threat to the arresting officers or any need for immediate action preventing verification, a reasonable officer would be expected to confirm the accuracy of her information in light of the disparity between the vehicle described on the stolen vehicle report and that driven by the Marescas. [xii]
The court explained that, while actual probable cause is required support an arrest in a criminal case, in a civil case, officers need not have had actual probable cause. Rather, officers are required, for the purpose of qualified immunity, to have reasonably believed that probable cause was present. Some federal circuits refer to this as “arguable probable cause.” However, in the Maresca’s case, the court noted that the deputy did not act reasonably in believing that probable cause was present because the deputy entered the wrong tag into her computer, and then failed to recognize that the vehicle listed as stolen did not match the vehicle that was occupied by the Marescas. Specifically, the court stated:
The sole basis for arresting the Marescas was Fuentes’s mistaken and unreasonable belief that their truck was stolen. That belief arose because Fuentes mistyped the Marescas’ license plate number into her computer, thereby triggering the stolen vehicle report. We do not hold that a mere typing error in entering a license plate number would make it unreasonable for the officer to rely on the result of the database inquiry. In the often unpredictable and fast-paced context of traffic stops, we cannot require perfection—only reasonable behavior. Our conclusion that it was unreasonable for Fuentes to arrest the Marescas is based upon all the circumstances of the case and, in particular, Fuentes’s failure to use readily available information—already on the computer screen in front of her and from the dispatcher—to verify that the Marescas’ vehicle was reported stolen before arresting them. [xiii]
As such, the court held that Fuentes did not have probable cause (or arguable probable cause) to arrest the Marescas. The court then denied immunity for Fuentes and granted summary judgment to the Marescas on this part of their claim.
Issue Three: Was Deputy Grundhoffer entitled to qualified immunity for relying on information provided him by Deputy Fuentes that the car was stolen?
The court first listed legal principles that control for this issue. The court noted those principles as follows:
- A police officer who acts in reliance on what proves to be the flawed conclusions of a fellow police officer may nonetheless be entitled to qualified immunity as long as the officer’s reliance was objectively reasonable.” Felders ex rel. Smedley v. Malcom, 755 F.3d 870, 882 (10th Cir. 2014) (internal quotation marks omitted), cert. denied, 135 S. Ct. 975 (2015) [xiv]
- Police work often requires officers to rely on the observations, statements, and conclusions of their fellow officers. An officer who is called to the scene to conduct a search incident to arrest is not required to re-evaluate the arresting officer’s probable cause determination in order to protect herself from personal liability. Baptiste, 147 F.3d at 1260. [xv]
The court then noted that, in the Maresca’s case, Deputy Grundhoffer was in a separate patrol car behind Deputy Fuentes and had no opportunity to see the information on Fuentes computer. The court held that Deputy Grundhoffer was reasonable in his belief that Deputy Fuentes had probable cause to believe the car was stolen. As such, they held that Deputy Grundhoffer was entitled to qualified immunity.
Issue Four: Did the force used by the deputies exceed the force that reasonable under the facts of this case?
The court first noted that this excessive force claim is evaluated separately from the false arrest claim. As such, the court will assume for this issue, that the deputies reasonably believed the truck was stolen and, therefore, had probable cause to arrest the Marescas.
The court then examined legal principles relevant to the issue of excessive or reasonable force. The principals were as follows:
- The display of weapons, and the pointing of firearms directly at persons inescapably involves the immediate threat of deadly force. Such a show of force should be predicated on at least a perceived risk of injury or danger to the officers or others, based upon what the officers know at that time.” Holland, 268 F.3d at 1192. [xvi]
- Where a person has submitted to the officers’ show of force without resistance, and where an officer has no reasonable cause to believe that person poses a danger to the officer or to others, it may be excessive and unreasonable to continue to aim a loaded firearm directly at that person, in contrast to simply holding the weapon in a fashion ready for immediate use. Id. at 1193. [xvii]
This issue involved factual disputes between the Marescas version of events and the deputies’ version of events. The court noted:
The Marescas presented evidence that the officers pointed loaded guns directly at them—including their children—despite their full compliance with the officers’ orders. Specifically, there is evidence that deputies pointed a gun at C.M., held a weapon close to M.M., pointed a firearm at Mrs. Maresca’s head, and aimed their weapons directly at Mr. Maresca. There is also evidence that the deputies continued to aim their weapons at the Marescas’ vehicle after Mr. and Mrs. Maresca were removed from the vehicle and after the officers had been informed by the Marescas that their children were still in the truck. The deputies deny these facts. These factual disputes preclude summary judgment for any party. [xviii]
Under the Marescas version of the facts, which is the version the court is required to credit at this stage of litigation, a reasonable jury could find that the force used by the officers in pointing their guns at the Marescas, especially the children, after they should have realized a threat did not exist, was excessive under the Fourth Amendment. As such, the court denied qualified immunity for all of the deputies involved regarding this issue.
Issue Five: Was the injury to the Marescas de minimus so as to preclude the excessive force claim?
The court then examined the relevant legal principle for this issue, which is noted as follows:
- [I]n order to recover on an excessive force claim, a plaintiff must show: (1) that the officers used greater force than would have been reasonably necessary to effect a lawful seizure, and (2) some actual injury caused by the unreasonable seizure that is not de minimis, be it physical or emotional,” 478 F.3d at 1129 n.25 [xix]
In this case, the court noted that the Marescas presented evidence that each of them suffered psychological and emotional injury that “significantly exceeded” the de minimus requirement. As such, the excessive force claim can proceed to a jury.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
[i] No. 14-2163 (10th Cir. Decided October 22, 2015)
[ii] Id. at 3-9
[iii] Id. at 12
[v] Id. at 14
[vi] 100 F.3d 1491, 1495-99, 1506 (10th Cir. 1996)
[vii] 8 F.3d 1455, 1458-59 (10th Cir. 1993)
[viii] Maresca at 15
[x] Id. at 16
[xii] Id. at 18
[xiii] Id. at 17
[xiv] Id. at 19
[xv] Id. at 19-20
[xvi] Id. at 23
[xviii] Id. at 22
[xix] Id. at 25