Sabeerin v. Albuquerque Police Dep't

BOBACK SABEERIN, Plaintiff-Appellant, and S.S., Plaintiff, v. ALBUQUERQUE POLICE DEPARTMENT; TIMOTHY FASSLER, Detective, in his individual capacity; JOHN DEAR, Detective, in his individual capacity; CITY OF ALBUQUERQUE; GREGG MARCANTEL, Secretary, in his official and individual capacity; STATE OF NEW MEXICO; NEW MEXICO CORRECTIONS DEPARTMENT, Defendants-Appellees.

No. 21-2046

United States Court of Appeals, Tenth Circuit

April 5, 2022

D.C. No. 1:16-CV-00497-JCH-LF (D. N.M.)

Before BACHARACH, BRISCOE, and ROSSMAN, Circuit Judges.

ORDER AND JUDGMENT ^[*]

MARY BECK BRISCOE, CIRCUIT JUDGE

Boback Sabeerin was convicted in New Mexico state court of crimes related to his involvement in a vehicle-identification-number (VIN) switching operation. The New Mexico Court of Appeals overturned those convictions because it determined, among other things, that a search warrant and the supporting affidavit that led to his arrest failed to establish probable cause. See State v. Sabeerin, 336 P.3d 990, 998 (N.M. Ct. App. 2014). After the reversal of his convictions Mr. Sabeerin, his domestic partner, and their children filed this action, asserting multiple federal claims under 42 U.S.C. § 1983 and assorted state law claims against several defendants. Final judgment was entered in favor of all defendants, but this appeal concerns only the district court's grant of summary judgment in favor of the City of Albuquerque ("City") and two City detectives, Tim Fassler and John Dear (all three collectively, "City Defendants"). The court ruled that Detectives Fassler and Dear were entitled to qualified immunity from Mr Sabeerin's Fourth Amendment unlawful search and seizure claim and that other claims failed for lack of a constitutional violation. Mr. Sabeerin appeals pro se.^[1] Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I. Background

In 1991, Mr. Sabeerin pled no contest to two counts of unlawfully taking a motor vehicle in violation of New Mexico law. Detective Dear allegedly "made it clear" to Mr. Sabeerin "that after this he should watch his back." R., Vol. 2 at 240, ¶ 18 (internal quotation marks omitted).

In June 2009, police arrested another person, Anjum Tahir, for attempting to steal an automobile. When he was arrested, Mr. Tahir was driving an automobile registered in his name but bearing the VIN of a different automobile, one that he had purchased at an insurance auction as a complete-burn-and-totaled vehicle. Detective Fassler learned that the true VIN of the automobile Mr. Tahir was driving had been reported stolen two months earlier. Investigating further, Detective Fassler learned that Mr. Tahir had purchased a large number of totaled vehicles at auction, and he received a tip that Mr. Tahir did business at a location on Rhode Island St. NE in Albuquerque. After surveilling the Rhode Island property, Detective Fassler concluded that Mr. Tahir had two other vehicles involved in a VIN-switching scheme, so he obtained a search warrant for the Rhode Island property on August 19, 2009. The search uncovered several stolen and VIN-altered vehicles.

Later on August 19, Detective Fassler completed an affidavit in support of an application for another warrant. In that affidavit, he stated that during his investigation, he had "learned" that Mr. Tahir "did business" at 112 General Arnold St. NE in Albuquerque. R., Vol. 4 at 99. As it turned out, the General Arnold property was Mr. Sabeerin's business, which he describes as a "body shop," R., Vol. 2 at 240, ¶ 19. The General Arnold affidavit detailed the results of Detective Fassler's investigation into Mr. Tahir and the Rhode Island property that had led him to seek the Rhode Island warrant, and it set forth several details concerning the General Arnold property: "The front of the building is set back about 20 feet from the sidewalk where cars are parked and being dismantled." R., Vol. 4 at 98. "There are numerous vehicles visible through [a] fence that have been, or are being dismantled. Also cars with no damage at all are visible." Id. Detective Fassler had "sent a unit to watch [the General Arnold property]," and Mr. Tahir "was taken into custody walking around that business." Id. at 99. "Several suspicious vehicles can also be seen on that lot." Id.

The General Arnold warrant was issued just over two hours after the Rhode Island warrant was issued. According to Mr. Sabeerin, Detective Dear told Mr. Sabeerin's domestic partner that "he had come out of retirement when he had found out that Mr. Sabeerin was part of this investigation." R., Vol. 2 at 240, ¶ 20. And Detective Fassler allegedly told Mr. Sabeerin that two detectives who had worked on the earlier case against him were now working for Detective Fassler "to make sure" Mr. Sabeerin did not "get out this time," and that "[f]oreigners like [Mr. Sabeerin] don't belong in this country." Id. ¶ 21 (emphasis omitted). The "search of the General Arnold property revealed a number of stolen vehicles, as well as evidence of a car theft and VIN-switching operation." Sabeerin, 336 P.3d at 993.

In two separate jury trials, Mr. Sabeerin was convicted of multiple charges. In each case, the trial court denied his motions to suppress evidence obtained through execution of the General Arnold warrant. He was sentenced to a total of twenty-seven years' imprisonment.

Mr. Sabeerin appealed from both criminal judgments. In a split decision, the New Mexico Court of Appeals reversed Mr. Sabeerin's convictions, ruling that the motions to suppress should have been granted because "the General Arnold property search warrant was invalid for lack of probable cause." Id. at 998.^[2] The majority noted that it appeared most of the facts in the General Arnold affidavit had been copied from the Rhode Island affidavit, except for the few additional facts we have noted above. As to those additional facts, the majority faulted the General Arnold affidavit because Detective Fassler did not explain how he learned that Mr. Tahir did business at the General Arnold property or "the content of the information learned," whether "through a tip, as [Mr. Sabeerin] suggest[ed], or . . . as a result of Detective Fassler's investigation." Id. at 996. Consequently, the court concluded, the issuing judge could not have determined whether the source of the information was "reliable or credible," or "whether the circumstances by which Detective Fassler, or his source, obtained this information demonstrated the probability that the criminal activity taking place at the Rhode Island property was also taking place at the General Arnold property." Id. at 996-97. The majority further relied on the affidavit's failure to explain why the vehicles on the General Arnold property were "suspicious, other than to say that some of the vehicles looked like they were being dismantled and some did not." Id. at 997.

The dissenting judge concluded that probable cause existed:

The "tip" received [that Mr. Tahir did business at the General Arnold property] and the investigation conducted by Detective Fassler were rendered credible from the information Detective Fassler obtained from the Rhode Island property investigation combined with his independent observation of the General Arnold property. Detective Fassler had probable cause to seek a search warrant the moment he saw Tahir at the General Arnold property with the same sort of suspicious vehicles in sight that he discovered in his investigation of Tahir's activities at the Rhode Island property.

Id. at 999 (Sutin, J., dissenting). The New Mexico Supreme Court declined review.

Following his release from prison, Mr. Sabeerin brought this action. In his operative Second Amended Complaint, filed through counsel, Mr. Sabeerin asserted two constitutional claims against the City Defendants: (1) unlawful search and seizure under the Fourth Amendment, and (2) conspiracy to deprive Mr. Sabeerin of his Fourth Amendment right to be free from unlawful searches and seizures and his substantive due process right under the Fourteenth Amendment to be free of conduct that is outrageous and shocking to the conscience. He also asserted an abuse-of-process claim against Detectives Fassler and Dear, constitutional claims against other defendants, and numerous state law claims.

After extended motions practice, the case narrowed to the City Defendants' motion for summary judgment. By then, Mr. Sabeerin was proceeding pro se. In granting that motion, the district court concluded that Detective Fassler was entitled to qualified immunity on the Fourth Amendment unlawful search and seizure claim under an "arguable probable cause" standard, because Mr. Sabeerin did not establish that Detective Fassler's affidavit contained deliberate falsehoods or recklessly disregarded the truth. The district court also determined that Mr. Sabeerin had not met his burden to identify a clearly established right that Detective Fassler violated, either as a Fourth Amendment violation or as a matter of substantive due process under the Fourteenth Amendment. For substantially the same reasons, the court held that Detective Dear was entitled to qualified immunity. And because Mr. Sabeerin failed to prove that Detectives Fassler and Dear violated Mr. Sabeerin's constitutional rights, the court ruled that the conspiracy, abuse-of-process, and municipal-liability claims failed. The court declined to exercise supplemental jurisdiction over the state law claims against the City Defendants. Mr. Sabeerin appeals only the entry of summary judgment on his unlawful search and seizure claim.^[3]

II. Discussion

As we read Mr. Sabeerin's pro se appellate brief, he raises two issues: (1) issue preclusion (also known as collateral estoppel) bars re-litigation of whether the General...