Ysasi v. Brown

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 Manu *1099 el 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). 1 *1100 Brown understood that “there had been an incident implicating possible domestic violence .... ” Brown Aff. ¶ 3, at l. 2 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). 3 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). 4 During the dispatch call, Thompson begged her sister not to get the police involved and stating *1101 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). 5 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) 6 (“Preliminary Hearing Transcript”); Response ¶ 7, at 6 (setting forth this fact). 7 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 infor *1102 mation 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). 8 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). 9

*1103 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). 10 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); 11 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). 12 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); Re *1104 sponse ¶¶ 13-14 (setting forth this fact). 13 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. 14 See Brown Aff. ¶ 12, at 3; MSJ Memo. ¶ 12, at 6 (setting forth this fact); Response ¶ 14, at 7 (setting forth this fact). 15 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). 16 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). 17 During his incarceration, Ysasi *1105 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). 18 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. *1106 ¶ 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, 19 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) 20 ). “To the extent the un *1107 reasonable 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 *1108 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 prob *1109 able 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.”). 21 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 *1110 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- *1111 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 *1112 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). 22 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 *1113 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 quali *1114 fied-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 *1115 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, regula *1116 tion, 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 *1117 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 *1118 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 *1119 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 Amendment is not concerned only with trespassory intrusions on property. See, e.g., Kyllo v. United States, 533 U.S. [at] 31-33, 121 S.Ct. 2038 .... Rather, even in the absence of a trespass, “a Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable.” Id., at 33 , 121 S.Ct. 2038 ; see also Smith v. Maryland, 442 U.S. 735, 740-741 , 99 S.Ct. 2577 , 61 L.Ed.2d 220 (1979); Katz v. United States, 389 U.S. [at] 361, 88 S.Ct. 507 ... (Harlan, J., concurring).

132 S.Ct. at 954-55 (Sotomayor, J., concurring). Justice Sotomayor’s concurrence focused on the reality, in her view, that,

physical intrusion is now unnecessary to many forms of surveillance.... In cases of electronic or other novel modes of surveillance that do not depend upon a physical invasion on property, the majority opinion’s trespassory test may provide little guidance. But “[situations involving merely the transmission of electronic signals without trespass would remain subject to Katz analysis.”

132 S.Ct. at 955 (Sotomayor, J., eoncur-ring)(alteration in original)(quoting the majority opinion, 132 S.Ct. at 953 ).

The Honorable Samuel A. Alito, Associate Justice, joined by Justices Ginsburg, Breyer, and Kagan, concurred in the judgment only, reasoning that, although he agreed with the result, given the use of twenty-first century technology, he would have analyzed whether the government’s long-term monitoring of the defendant violated the Katz v. United States reasonable-expectation-of-privacy test:

This case requires us to apply the Fourth Amendment’s prohibition of unreasonable searches and seizures to a 21st-century surveillance technique, the use of a Global Positioning System (GPS) device to monitor a vehicle’s movements for an extended period of time. Ironically, the Court has chosen to decide this case based on 18th-centu-ry tort law. By attaching a small GPS device to the underside of the vehicle that respondent drove, the law enforcement officers in this case engaged in conduct that might have provided grounds in 1791 for a suit for trespass to chattels. And for this reason, the Court concludes, the installation and use of the GPS device constituted a search. [132 S.Ct.] at 948-949.

This holding, in my judgment, is unwise. It strains the language of the Fourth Amendment; it has little if any support in current Fourth Amendment case law; and it is highly artificial.

I would analyze the question presented in this case by asking whether respondent’s reasonable expectations of privacy were violated by the long-term monitoring of the movements of the vehicle he drove.

*1120 132 S.Ct. at 957-58 (Alito, J., concurring in the judgment). Justice Alito first took issue with what he called the majority’s “questionable proposition that the[] two procedures [of attaching and using a GPS device] cannot be separated for Fourth amendment purposes.” 132 S.Ct. at 958 . Justice Alito submitted that, “[i]f these two procedures are analyzed separately, it is not at all clear from the Court’s opinion why either should be regarded as a search.” 132 S.Ct. at 958 .

Justice Alito contended that the majority’s opinion suggests that “the concept of a search, as originally understood, comprehended any technical trespass that led to the gathering of evidence,” but disagreed with the majority, stating: “[W]e know this is incorrect.” 132 S.Ct. at 958 . Justice Alito pointed out that the open-fields doctrine grew out of the distinction between a physical intrusion of any private property and property that is part of a home: “At common law, any unauthorized intrusion on private property was actionable, but a trespass on open fields ... does not fall within the scope of the Fourth Amendment because private property outside the curtilage is not part of a ‘hous[e]’ within the meaning of the Fourth Amendment.” 132 S.Ct. at • 958-959 (Alito, J., concurring in the judgment)(quoting Oliver v. United States, 466 U.S. 170 , 104 S.Ct. 1735 , 80 L.Ed.2d 214 (1984)).

Justice Alito asserted that the trespass-based approach that the majority used was “repeatedly criticized” and ultimately “repudiated,” based largely on its incompatibility with cases involving wiretapping and eavesdropping surveillance. United States v. Jones, 132 S.Ct. at 959, 960 (Alito, J., concurring in the judgment). Justice Alito contended that “the majority is hard pressed to find support in post-Nate cases for its trespass-based” decision that, when the government attached the GPS device to Jones’ Jeep, it trespassed on his effects and performed a Fourth Amendment search. 132 S.Ct. at 960-61 . Justice Alito pointed to multiple problems that he believes the majority’s trespass-based approach creates. First, he asserted that the majority’s analysis is irreconcilable with the element of the government’s conduct that he contends society would find offensive — the GPS-monitoring and not the attachment of the device. If the government could follow a car without physically trespassing on a person, home, paper, or effect, such as remotely monitoring a car via an internal GPS device, this monitoring would not constitute a Fourth Amendment search under the majority’s analysis. See 132 S.Ct. at 961 . Second, along the same lines, Justice Alito pointed out an “incongruous result[ ]” from the majority’s opinion that a short-term tracking of a vehicle with a GPS device, merely tracking a vehicle down a single street, is a Fourth Amendment search, while, “if the police follow the same car for a much longer period using unmarked cars and aerial assistance, this tracking is not subject to any Fourth Amendment constraints.” 132 S.Ct. at 961 . Justice Alito also asserted that, by tying Fourth Amendment searches to property law and trespass concepts, the Fourth Amendment’s protections “may vary from State to State,” based on different property and contract laws in the various states. 132 S.Ct. at 961-62 .

2. Florida v. Jardines.

In Florida v. Jardines, — U.S. -, 133 S.Ct. 1409 , 185 L.Ed.2d 495 (2013), Justice Scalia, writing for the majority once again, held that using a drug-sniffing dog to sniff a person’s “home and its immediate surroundings” is a Fourth Amendment search. 133 S.Ct. at 1417-18 . Justices Thomas, Ginsburg, Sotomayor, and Kagan joined Justice Scalia’s majority opinion in Florida v. Jardines. Justice Kagan filed a separate concurring opinion, *1121 in which Justices Ginsburg and Sotomayor joined, adding “further thoughts, suggesting that a focus on Jardines’ privacy interests would make ‘an easy eas[e] easy’ twice over,” but “join[ing] the Court’s opinion in full.” 183 S.Ct. at 1420 (Kagan, J., concurring). Justice Alito dissented, and Chief Justice Roberts, Justice Kennedy, and Justice Breyer joined his opinion.

In Florida v. Jardines, based on a tip that the defendant, Jardines, was growing marijuana in his home, the Miami-Dade, Florida, police department and the Drug Enforcement Administration sent a surveillance team to Jardines’ home. See 138 S.Ct. at 1413. Observing nothing of note in the first fifteen minutes watching the home, two detectives approached the home accompanied by a dog trained to detect marijuana, cocaine, heroin, and several other drugs by alerting the detectives with behavioral changes. See 133 S.Ct. at 1413 . As the dog approached Jardines’ front porch, the dog “apparently sensed one of the odors he had been trained to detect,” and after tracking back and forth, sat at the base of the front door, “which is the trained behavior upon discovering the odor’s strongest point.” 133 S.Ct. at 1413 . The dog’s handler then immediately left the porch, and told the other agents and officers at the scene that there had been a positive alert for drugs, at which time the officers applied for and received a search warrant for the residence, the execution of which revealed marijuana plants. See 133 S.Ct. at 1413 . Jardines was arrested for trafficking in marijuana and moved to suppress the evidence based on an illegal search. See 133 S.Ct. at 1413 .

Justice Scalia held that the use of a drug-sniffing dog was a Fourth Amendment search, reasoning:

[T]his case [is] a straightforward one. The officers were gathering information in an area belonging to Jardines and immediately surrounding his house — in the curtilage of the house, which we have held enjoys protection as part of the home itself. And they gathered that information by physically entering and occupying the area to engage in conduct not explicitly or implicitly permitted by the homeowner.

133 S.Ct. at 1414 . Justice Scalia noted that “[t]he Fourth Amendment ‘indicates with some precision the places and things encompassed by its protections’: persons, houses, papers, and effects.” 133 S.Ct. at 1414 (quoting Oliver v. United States, 466 U.S. at 176 , 104 S.Ct. 1735 ). Thus, the Fourth Amendment does not cover every “investigation[ ] on private property; for example, an officer may (subject to Katz) gather information in what we have called ‘open fields’ — even if those fields are privately owned — because such fields are not enumerated in the Amendment’s text.” 133 S.Ct. at 1414 .

Justice Scalia held that “the officers’ investigation took place in a constitutionally protected area,” the home, as the front porch is the home’s curtilage. See 133 S.Ct. at 1414-15 . Justice Scalia then “turn[ed] to the question of whether it was accomplished through an unlicensed physical intrusion,” 133 S.Ct. at 1415 , and reasoned that it was:

While law enforcement officers need not “shield their eyes” when passing by the home “on public thoroughfares,” [California v. Ciraolo, 476 U.S. 207, 213 , 106 S.Ct. 1809 , 90 L.Ed.2d 210 (1986) ], an officer’s leave to gather information is sharply circumscribed when he steps off those thoroughfares and enters the Fourth Amendment’s protected areas. In permitting, for example, visual observation of the home from “public navigable airspace,” we were careful to note that it was done “in a physically nonin-trusive manner.” Id. Entick v. Carrington, 2 Wils. K.B. 275, 95 Eng. Rep. *1122 807 (K.B.1765), a case “undoubtedly familiar” to “every American statesman” at the time of the Founding, Boyd v. United States, 116 U.S. 616, 626 , 6 S.Ct. 524 , 29 L.Ed. 746 (1886)[, abrogated by Warden, Md. Penitentiary v. Hayden, 387 U.S. 294 , 87 S.Ct. 1642 , 18 L.Ed.2d 782 (1967) ], states the general rule clearly: “[0]ur law holds the property of every man so sacred, that no man can set his foot upon his neighbor’s close without his leave.” 2 Wils. K.B., at 291. As it is undisputed that the detectives had all four of their feet and all four of their companion’s firmly planted on the constitutionally protected extension of Jardines’ home, the only question is whether he had given his leave (even implicitly) for them to do so. He had not.

133 S.Ct. at 1415 . Justice Scalia noted that, while society recognizes an implicit license which “typically permits the visitor to approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave,” he concluded that “introducing a trained police dog to explore the area around the home in hopes of discovering incriminating evidence is something else. There is no customary invitation to do that.” 133 S.Ct. at 1415-16 (emphasis in original). Justice Scalia explained:

An invitation to engage in canine forensic investigation assuredly does not inhere in the very act of hanging a knocker. To find a visitor knocking on the door is routine (even if sometimes unwelcome); to spot that same visitor exploring the front path with a metal detector, or marching his bloodhound into the garden before saying hello and asking permission, would inspire most of us to — well, call the police. The scope of a license — express or implied — is limited not only to a particular area but also to a specific purpose. Consent at a traffic stop to an officer’s checking out an anonymous tip that there is a body in the trunk does not permit the officer to rummage through the trunk for narcotics. Here, the background social norms that invite a visitor to the front door do not invite him there to conduct a search.

133 S.Ct. at 1416 .

The State of Florida argued “that investigation by a forensic narcotics dog by definition cannot implicate any legitimate privacy interest.” 133 S.Ct. at 1417 . The State of Florida cited to United States v. Place, 462 U.S. 696 , 103 S.Ct. 2637 , 77 L.Ed.2d 110 (1983), United States v. Jacobsen, 466 U.S. 109 , 104 S.Ct. 1652 , 80 L.Ed.2d 85 (1984), and Illinois v. Caballes, 543 U.S. 405 , 125 S.Ct. 834 , 160 L.Ed.2d 842 (2005), “which held, respectively, that canine inspection of luggage in an airport, chemical testing of a substance that had fallen from a parcel in transit, and canine inspection of an automobile during a lawful traffic stop, do not violate the ‘reasonable expectation of privacy’ described in Katz.” 133 S.Ct. at 1417 . Justice Scalia pointed out that, in United States v. Jones, the Supreme Court had already concluded that “[t]he Katz reasonable-expectations test ‘has been added to, not substituted for,’ the traditional property-based understanding of the Fourth Amendment, and so it is unnecessary to consider [the test under Katz v. United States] when the government gains evidence by physically intruding on constitutionally protected areas.” 133 S.Ct. at 1417 (quoting United States v. Jones, 132 S.Ct. at 951-52 ). Because the Supreme Court had already concluded that the conduct was a Fourth Amendment search under the trespass-based analysis, therefore, it held that it was unnecessary to consider whether the conduct amounts to a search under the Katz v. United States reasonable-expectation-of-privacy analysis:

*1123 Thus, we need not decide whether the officers’ investigation of Jardines’ home violated his expectation of privacy under Katz . One virtue of the Fourth Amendment’s property-rights baseline is that it keeps easy cases easy. That the officers learned what they learned only by physically intruding on Jardines’ property to gather evidence is enough to establish that a search occurred.

133 S.Ct. at 1417 .

The Honorable Elena Kagan, Associate Justice, wrote a concurring opinion, noting: “The Court today treats this case under a property rubric; I write separately to note that I could just as happily have decided it by looking to Jardines’ privacy interests.” 133 S.Ct. at 1418 (Kagan, J., concurring). Justice Kagan analogized the government’s conduct in using a drug sniffing dog on Jardines’ porch to a stranger coming to the front door, who “doesn’t knock or say hello,” but instead, peers through the windows “into your home’s furthest corners” with “super-high-powered binoculars,” and “in just a couple of minutes, his uncommon behavior allows him to learn details of your life you disclose to no one.” 133 S.Ct. at 1418 (Kagan, J., concurring). This conduct, she posited, is a trespass which exceeds any implied license and is also an invasion of reasonable expectations of privacy; she argued that, like her analogy, the facts in Florida v. Jardines likewise involved a trespass and a violation of privacy expectations:

That case is this case in every way that matters. Here, police officers came to Joelis Jardines’ door with a super-sensitive instrument, which they deployed to detect things inside that they could not perceive unassisted. The equipment they used was animal, not mineral. But contra the dissent, see [133 S.Ct.] at 1420 (opinion of Alito, J.)(noting the ubiquity of dogs in American households), that is of no significance in determining whether a search occurred.

133 S.Ct. at 1418 (Kagan, J., concurring). According to Justice Kagan, had she written the majority opinion based on the Katz v. United States reasonable-expectations-of-privacy search test,

[a] decision along those lines would'have looked ... well, much like this one. It would have talked about “ ‘the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.’ ” [133 S.Ct.] at 1414 (quoting Silverman v. United States, 365 U.S. 505, 511 , 81 S.Ct. 679 , 5 L.Ed.2d 734 (1961)). It would have insisted on maintaining the “practical value” of that right by preventing police officers from standing in an adjacent space and “trawl[ing] for evidence with impunity.” [133 S.Ct.] at 1414. It would have explained that “ ‘privacy expectations are most heightened’ ” in the home and the surrounding area. [133 S.Ct.] at 1414-15 (quoting California v. Ciraolo, 476 U.S. [at] 213, 106 S.Ct. 1809 ...). And it would have determined that police officers invade those shared expectations when they use trained canine assistants to reveal within the confines of a home what they could not otherwise have found there. See [133 S.Ct.] at 1415-16, and n. 2-3.

133 S.Ct. 1409, 1418-19 (Kagan, J., concurring).

Justice Alito’s dissenting opinion, in which Chief Justice Roberts, and Justices Kennedy and Breyer, joined, submitted that “[t]he Court’s decision in this important Fourth Amendment case is based on a putative rule of trespass law that is nowhere to be found in the annals of Anglo-American jurisprudence.” 133 S.Ct. at 1420 (Alito, J., dissenting). Justice Alito noted that general trespass law permits a license to public members to use a walkway to approach a house’s door, including strangers such as mailmen and solicitors, *1124 and the majority’s conclusion that “the police officer in this case, Detective Bartelt, committed a trespass because he was accompanied during his otherwise lawful visit to the front door of respondent’s house by his dog, Franky,” is without a sound basis in trespass law. 133 S.Ct. at 1420-21 (Ali-to, J., dissenting). Justice Alito also asserted that decision is inconsistent with the Katz v. United States’ reasonable-expectations-of-privacy test: “A reasonable person understands that odors emanating from a house may be detected from locations that are open to the public, and a reasonable person will not count on the strength of those odors remaining within the range that, while detectible by a dog, cannot be smelled by a human.” Florida v. Jardines, 133 S.Ct. at 1421 (Alito, J., dissenting).

Justice Alito contended that the majority’s opinion that the detective “exceeded the boundaries of the license to approach the house that is recognized by the law of trespass, ... is unfounded.” 133 S.Ct. at 1421 (Alito, J., dissenting). Justice Alito pointed out that the law of trespass does not distinguish between visitors or reasons for the visit in granting an implied license to approach a house’s front door. See 133 S.Ct. at 1421-22 (Alito, J., dissenting). He also asserted: “As I understand the law of trespass and the scope of the implied license, a visitor who adheres to these limitations is not necessarily required to ring the doorbell, knock on the door, or attempt to speak with an occupant,” and uses mail carriers as an example of such a visitor. 133 S.Ct. at 1423 (Alito, J., dissenting). Justice Alito pointed out that the implied license also applies to law enforcement and cites to Kentucky v. King, — U.S.-, 131 S.Ct. 1849 , 179 L.Ed.2d 865 (2011), in which the Supreme Court held that law enforcement officers approaching the front door of a residence to conduct a “knock and talk” is not a Fourth Amendment search. Florida v. Jardines, 133 S.Ct. at 1423 (Alito, J., concurring). Given that “Detective Bartelt did not exceed the scope of the license to approach respondent’s front door,” Justice Alito took issue with the majority’s conclusion “that Detective Bartelt went too far because he had the ‘objectiv[e] ... purpose to conduct a search.’ ” 133 S.Ct. at 1423 (Alito, J., dis-sentingXemphasis in original). According to Justice Alito, because approaching a house to conduct a knock and talk is not a search,

[w]hat the Court must fall back on, then, is the particular instrument that Detective Bartelt used to detect the odor of marijuana, namely, his dog. But in the entire body of common-law decisions, the Court has not found a single case holding that a visitor to the front door of a home commits a trespass if the visitor is accompanied by a dog on a leash. On the contrary, the common law allowed even unleashed dogs to wander on private property without committing a trespass.

The Court responds that “[i]t is not the dog that is the problem, but the behavior that here involved use of the dog.” But where is the support in the law of trespass for this proposition? Dogs’ keen sense of smell has been used in law enforcement for centuries. The antiquity of this practice is evidenced by a Scottish law from 1318 that made it a crime to “disturb a tracking dog or the men coming with it for pursuing thieves or seizing malefactors.” If bringing a tracking dog to the front door of a home constituted a trespass, one would expect at least one case to have arisen during the past 800 years. But the Court has found none.

133 S.Ct. at 1424 (Alito, J., dissenting)(emphasis in original) (internal citations omitted). Justice Alito thus concluded: “For these reasons, the real law of trespass *1125 provides no support for the Court’s holding today. While the Court claims that its reasoning has ‘ancient and durable roots,’ its trespass rule is really a newly struck counterfeit.” 133 S.Ct. at 1424 (Alito, J., dissentingXinternal citations omitted).

Justice Alito did not look any more favorably upon Justice Kagan’s conclusion that Bartelt’s conduct violated Jardines’ reasonable privacy expectations, asserting:

[W]e have already rejected a very similar, if not identical argument, see Illinois v. Caballes, ... and in any event I see no basis for concluding that the occupants of a dwelling have a reasonable expectation of privacy in odors that emanate from the dwelling and reach spots where members of the public may lawfully stand.

133 S.Ct. at 1424 (Alito, J., dissenting). Justice Kagan asserted that Bartelt’s use of Franky the drug-sniffing dog was an invasion of Jardines’ privacy in his home, because the government’s conduct was similar to the conduct in Kyllo v. United States, in which the Supreme Court held that using a thermal imaging device to monitor movements in a home was a Fourth Amendment search. Justice Alito pointed out that “[tjhis Court ... has already rejected the argument that the use of a drug-sniffing dog is the same as the use of a thermal imaging device. The very argument now advanced by the concurrence appears in Justice Souter’s Caballes dissent. But the Court was not persuaded.” 133 S.Ct. at 1425 (Alito, J., dissenting) (internal citations omitted) (citing Illinois v. Caballes, 543 U.S. at 409 -10 and 413 n. 3, 125 S.Ct. 834 ). Justice Alito contended that “Kyllo is best understood as a decision about the use of new technology. ... A dog, however, is not a new form of ‘technology’ or a ‘device.’ And, as noted, the use of dogs’ acute sense of smell in law enforcement dates back many centuries.” 133 S.Ct. at 1425 (Alito, J., dissenting). Justice Alito therefore concluded that the government’s conduct in Florida v. Jardines “did not constitute a trespass and did not violate respondent’s reasonable expectations of privacy. I would hold that this conduct was not a search, and I therefore respectfully dissent.” 133 S.Ct. at 1426 .

3. Standing.

The Tenth Circuit has referred to the test whether a particular search implicates a defendant’s Fourth Amendment interests — whether the search violates the defendant’s reasonable privacy expectation — as one of “standing.” E.g., United States v. Creighton, 639 F.3d 1281, 1286 (10th Cir.2011) (“The Defendant has the burden of establishing ... standing, or, in other words, a subjective expectation of privacy in the [item searched] that society is prepared to recognize as reasonable.”); United States v. Poe, 556 F.3d 1113, 1121 (10th Cir.2009) (“[A] defendant raising a Fourth Amendment challenge must first demonstrate that he has standing to object to the search.”) (citing United States v. Rubio-Rivera, 917 F.2d 1271, 1274 (10th Cir.1990)); United States v. Shareef, 100 F.3d 1491, 1499 (10th Cir.1996) (“A Defendant has standing to challenge a search only if he or she has a reasonable expectation of privacy in the area being searched.”). Accordingly, the Court, tracing the Tenth Circuit’s language has also referred to this test as one of standing. See, e.g., United States v. Harmon, 785 F.Supp.2d at 1157 (“Standing requires the defendant to show ‘that he had a subjective expectation of privacy in the premises searched and that society is prepared to recognize that expectation as reasonable.’ ’)(quoting United States v. Poe, 556 F.3d at 1121 ). The Supreme Court’s decisions in United States v. Jones and Florida v. Jardines, however, suggest that this test has now expressly been designated a substantive Fourth Amendment analysis *1126 alongside the trespass-based Fourth Amendment analysis, rather than a distinct analysis under the rubric entitled standing.

In Rakas v. Illinois, 439 U.S. 128 , 99 S.Ct. 421 , 58 L.Ed.2d 387 (1978), the Supreme Court disapproved of labeling the inquiry whether a search implicates a defendant’s personal Fourth Amendment interests “as one of standing, rather than simply recognizing it as one involving the substantive question of whether or not the proponent of the motion to suppress had his own Fourth Amendment rights infringed by the search and seizure which he seeks to challenge.” 439 U.S. at 133 , 99 S.Ct. 421 . Dispensing with this label, the Supreme Court noted:

Had we accepted petitioners’ request to allow persons other than those whose own Fourth Amendment rights were violated by a challenged search and seizure to suppress evidence obtained in the course of such police activity, it would be appropriate to retain Jones[ v. United States, 362 U.S. 257 , 80 S.Ct. 725 , 4 L.Ed.2d 697 (1960), overruled by United States v. Salvucci, 448 U.S. 83 , 100 S.Ct. 2547 , 65 L.Ed.2d 619 (1980) ]’ use of standing in Fourth Amendment analysis. Under petitioners’ target theory, a court could determine that a defendant had standing to invoke the exclusionary rule without having to inquire into the substantive question of whether the challenged search or seizure violated the Fourth Amendment rights of that particular defendant. However, having rejected petitioners’ target theory and reaffirmed the principle that the “rights assured by the Fourth Amendment are personal rights, [which] ... may be enforced by exclusion of evidence only at the instance of one whose own protection was infringed by the search and seizure,” Simmons v. United States, 390 U.S. [377] at 389, 88 S.Ct. 967 [ 19 L.Ed.2d 1247 (1968) ] ..., the question necessarily arises whether it serves any useful analytical purpose to consider this principle a matter of standing, distinct from the merits of a defendant’s Fourth Amendment claim. We can think of no decided cases of this Court that would have come out differently had we concluded, as we do now, that the type of standing requirement discussed in Jones and reaffirmed today is more properly subsumed under substantive Fourth Amendment doctrine. Rigorous application of the principle that the rights secured by this Amendment are personal, in place of a notion of “standing,” will produce no additional situations in which evidence must be excluded. The inquiry under either approach is the same. But we think the better analysis forthrightly focuses on the extent of a particular defendant’s rights under the Fourth Amendment, rather than on any theoretically separate, but invariably intertwined concept of standing. The Court in Jones also may have been aware that there was a certain artificiality in analyzing this question in terms of standing because in at least three separate places in its opinion the Court placed that term within quotation marks. 362 U.S., at 261, 263, 265 , 80 S.Ct. 725 ....

439 U.S. at 138-39 , 99 S.Ct. 421 . The Supreme Court emphasized:

[N]othing we say here casts the least doubt on cases which recognize ... as a general proposition, the issue of standing [generally.] ... But this Court’s long history of insistence that Fourth Amendment rights are personal in nature has already answered many of these traditional standing inquiries, and we think that definition of those rights is more properly placed within the purview of substantive Fourth Amendment law than within that of standing.

*1127 439 U.S. at 139-40 , 99 S.Ct. 421 . In Minnesota v. Carter; the Supreme Court recognized that Rakas v. Illinois put an end to the Fourth Amendment standing analysis as separate from the substantive Fourth Amendment search analysis:

The Minnesota courts analyzed whether respondents had a legitimate expectation of privacy under the rubric of “standing” doctrine, an analysis that this Court expressly rejected 20 years ago in Rakas .... Central to our analysis [in Rakas v. Illinois] was the idea that in determining whether a defendant is able to show the violation of his (and not someone else’s) Fourth Amendment rights, the “definition of those rights is more properly placed within the purview of substantive Fourth Amendment law than within that of standing.” Id., at 140 , 99 S.Ct. 421 ....

525 U.S. at 87-88, 119 S.Ct. 469 . The Supreme Court has thus noted that the analysis under either approach — the substantive Fourth Amendment doctrine that the rights that the Amendment secures are personal versus the separate notion of “standing” — is the same and that Katz v. United States’ reasonable-expectation-of-privacy analysis has now been classified as a substantive Fourth Amendment test, as opposed to a standing test. Rakas v. Illinois, 439 U.S. at 139 , 99 S.Ct. 421 .

Rigorous application of the principle that the rights secured by this Amendment are personal, in place of a notion of “standing,” will produce no additional situations in which evidence must be excluded. But we think the better analysis forthrightly focuses on the extent of a particular defendant’s rights under the Fourth Amendment, rather than on any theoretically separate, but invariably intertwined concept of standing.

Rakas v. Illinois, 439 U.S. at 139 , 99 S.Ct. 421 (footnote omitted). This development is in line with the Supreme Court’s guidance that the analysis “is more properly subsumed under substantive Fourth Amendment doctrine.” Rakas v. Illinois, 439 U.S. at 139 , 99 S.Ct. 421 .

4. Whether a Fourth Amendment Search Occurred.

A Fourth Amendment search occurs either where the government, to obtain information, trespasses on a person’s property or where the government violates a person’s subjective expectation of privacy that society recognizes as reasonable to collect information. See United States v. Jones, 132 S.Ct. at 947 . “[T]he Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test.” United States v. Jones, 132 S.Ct. at 947 (emphasis in original)(citing Alderman v. United States, 394 U.S. 165, 176 , 89 S.Ct. 961 , 22 L.Ed.2d 176 (1969); Soldal v. Cook Cnty., 506 U.S. 56, 64 , 113 S.Ct. 538 , 121 L.Ed.2d 450 (1992)). “When ‘the Government obtains information by physically intruding’ on persons, houses, papers, or effects, ‘a ‘search’ within the original meaning of the Fourth Amendment’ has ‘undoubtedly occurred.’ ” Florida v. Jardines, 133 S.Ct. at 1414 (quoting United States v. Jones, 132 S.Ct. at 950 n. 3).

a. Trespass-Based Analysis.

The Fourth Amendment “establishes a simple baseline, one that for much of our history formed the exclusive basis for its protections: When ‘the Government obtains information by physically intruding’ on persons, houses, papers, or effects, ‘a ‘search’ within the original meaning of the Fourth Amendment’ has ‘undoubtedly occurred.’ ” Florida v. Jardines, 133 S.Ct. at 1414 (quoting United States v. Jones, 132 S.Ct. at 950 n. 3 (“[A] ‘search’ within the original meaning of the Fourth Amendment” occurs “[w]here ... the Government obtains information by physically *1128 intruding on a constitutionally protected area.”))- “[A]n actual trespass,” however, “is neither necessary nor sufficient to establish a constitutional violation.” United States v. Jones, 132 S.Ct. at 951 n. 5 (Scalia, J.) (emphasis omitted) (quoting United States v. Karo, 468 U.S. 705, 713 , 104 S.Ct. 3296 , 82 L.Ed.2d 530 (1984)).

In determining whether a search has occurred, “[t]resspass alone does not qualify, but there must be conjoined with that ... an attempt to find something or to obtain information.” United States v. Jones, 132 S.Ct. at 951 n. 5. The Supreme Court has also noted that “[p]hysically invasive inspection is simply more intrusive than purely visual inspection.” Bond v. United States, 529 U.S. 334, 337 , 120 S.Ct. 1462 , 146 L.Ed.2d 365 (2000). Moreover, the Supreme Court in Flonda v. Jardines suggested that the trespass-based analysis applies only when the trespass occurs in one of the four places or things listed in the Fourth Amendment:

The Fourth Amendment “indicates with some precision the places and things encompassed by its protections”: persons, houses, papers, and effects. The Fourth Amendment does not, therefore, prevent all investigations conducted on private property; for example, an officer may (subject to Katz) gather information in what we have called “open fields” — even if those fields are privately owned — because such fields are not enumerated in the Amendment’s text.... But when it comes to the Fourth Amendment, the home is first among equals.

133 S.Ct. at 1414 .

In United States v. Alabi, 943 F.Supp.2d 1201 (D.N.M.2013) (Browning, J.), the Court analyzed whether the Secret Service’s digital scan of electronic information contained in the defendants’ credit and debit cards’ magnetic strips was a Fourth Amendment search under a trespass-based analysis, concluding that it was not, because the Secret Service properly possessed the credit and debit cards, and the additional act of scanning the cards to read the virtual data contained on the strips did not involve a physical intrusion or physical penetration of space. See 943 F.Supp.2d at 1264-65 . The Court noted that, “[e]ven if the Supreme Court were to extend the trespass-based analysis for Fourth Amendment searches to virtual invasions, the Secret Service’s conduct scanning the thirty-one credit and debit cards still would not amount to a Fourth Amendment search,” because the magnetic strip, as opposed to the credit or debit card separately, is not a constitutionally protected area. 943 F.Supp.2d at 1267-68 .

When a law enforcement officer sees only the exterior of a credit or debit card, however, given that the financial institution which issues the card places the same information on the magnetic strip as embossed on the card’s exterior, the only instances in which the information inside the credit or debit card is not information already seen by and known to the officer is when the information has been reencoded for unlawful purposes. In these instances, not only does the person asserting his or her Fourth Amendment right not own or otherwise lawfully possess the information contained inside the card on the magnetic strip, but the person has stolen the information with the intent to use that information to steal further from the person whose information is on the magnetic strip. Protecting this area from law enforcement search and seizure would thus not further the Fourth Amendment’s express purpose of protecting “[t]he right of the people to be secure in their persons, houses, papers, and effects .... ” U.S. Const, amend IV.

943 F.Supp.2d at 1273 (alteration in original).

*1129 b. Katz v. United States’ Reasonable-Expectations-of-Privacy Search Test Remains Good Law.

The Court has noted that, in light of the Supreme Court’s recent decisions in Florida v. Jardines and United States v. Jones, both of which Justice Scalia wrote for the majority, and both of which analyze whether government conduct constituted a Fourth Amendment search using the trespass-based approach, “the question arises whether the Katz v. United States reasonable-expectation-of-privacy test is still good law.” United States v. Alabi, 943 F.Supp.2d 1201 (D.N.M.2013) (Browning, J.) (citing Minnesota v. Carter, 525 U.S. 83, 97-98 , 119 S.Ct. 469 , 142 L.Ed.2d 373 (1998) (Scalia, J. concurring)). Justice Scalia has consistently criticized this “notoriously unhelpful test”:

In my view, the only thing the past three decades have established about the Katz test (which has come to mean the test enunciated by Justice Harlan’s separate concurrence in Katz ...) is that, unsurprisingly, those “actual (subjective) expectation^] of privacy” “that society is prepared to recognize as ‘reasonable,’ ” bear an uncanny resemblance to those expectations of privacy that this Court considers reasonable. When that self-indulgent test is employed (as the dissent would employ it here) to determine whether a “search or seizure” within the meaning of the Constitution has occurred (as opposed to whether that “search or seizure” is an “unreasonable” one), it has no plausible foundation in the text of the Fourth Amendment. That provision did not guarantee some generalized “right of privacy” and leave it to this Court to determine which particular manifestations of the value of privacy “society is prepared to recognize as ‘reasonable.’ ” Rather, it enumerated (“persons, houses, papers, and effects”) the objects of privacy protection to which the Constitution would extend, leaving further expansion to the good judgment, not of this Court, but of the people through their representatives in the legislature.

Minnesota v. Carter, 525 U.S. at 97-98, 119 S.Ct. 469 (Scalia, J., eoncurring)(em-phasis in original)(internal citations omitted). 23 In both United States v. Jones and Florida v. Jardines, however, Justice Sca-lia, writing for the majority, never stated that the Supreme Court was substituting the trespass-based analysis for Katz v. United States’ reasonable-expectation-of-privacy analysis. Rather, his majority opinions asserted that the Katz v. United States reasonable-expectation-of-privacy analysis added to the trespass-based analysis. See Florida v. Jardines, 133 S.Ct. at 1417 (“The Katz reasonable-expectations test ‘has been added to, not substituted for,’ the traditional property-based understanding of the Fourth Amendment.” (emphasis in original))(quoting United States v. Jones, 132 S.Ct. at 952 ). The Court concluded in United States v. Alabi that, “as the Supreme Court now stands, Justices Alito, Breyer, Kagan, Ginsburg, and Sotomayor still adhere to application of the Katz v. United States reasonable-expectation-of-privacy Fourth Amendment analysis, at least as a possible approach alongside of the trespass-based approach.” 943 F.Supp.2d at 1243 .

In June, 2013, Justice Scalia dissented from the Supreme Court’s decision in Maryland v. King, — U.S. -, 133 S.Ct. 1958 , 186 L.Ed.2d 1 (2013), in which the Supreme Court held that “DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure,” 133 S.Ct. at 1980. *1130 Justice Scalia criticized the majority’s opinion for analogizing DNA testing to taking an arrestee’s photograph by citing to Katz v. United States and pointing out that “we have never held that merely taking a person’s photograph invades any recognized ‘expectation of privacy.’ ” Maryland v. King, 133 S.Ct. at 1986 (Scalia, J., dissenting). Justice Scalia also pointed out that a person’s “privacy-related concerns” in their body are weighty:

We are told that the “privacy-related concerns” in the search of a home “are weighty enough that the search may require a warrant, notwithstanding the diminished expectations of privacy of the arrestee.” But why are the “privacy-related concerns” not also “weighty” when an intrusion into the body is at stake? (The Fourth Amendment lists “persons” first among the entities protected against unreasonable searches and seizures.)

Maryland v. King, 133 S.Ct. at 1982 (Sca-lia J., dissentingXemphasis in original). Justice Scalia also suggested that the Founders would have shared these privacy-related concerns:

Today’s judgment will, to be sure, have the beneficial effect of solving more crimes; then again, so would the taking of DNA samples from anyone who flies on an airplane (surely the Transportation Security Administration needs to know the “identity” of the flying public), applies for a driver’s license, or attends a public school. Perhaps the construction of such a genetic panopticon is wise. But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.

Maryland v. King, 133 S.Ct. at 1989 (Sca-lia J., dissenting). The Court therefore concludes that Justice Scalia and the Supreme Court may still rely on a person’s privacy expectation when determining whether a search is reasonable for Fourth Amendment purposes, although Justice Scalia may not turn to the expectations prong until he runs the facts through the trespass prong.

c. Katz v. United States’ Reasonable-Expectations-of-Privacy Analysis.

“ ‘Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted.’ ” Raleas v. Illinois, 439 U.S. at 133-34 , 99 S.Ct. 421 (quoting Alderman v. United States, 394 U.S. at 174 , 89 S.Ct. 961 ). “A district court cannot suppress evidence unless the movant proves that a search implicates personal Fourth Amendment interests.” United States v. Jones, 44 F.3d 860, 871 (10th Cir.1995) (emphasis in original). “ ‘[N]o interest legitimately protected by the Fourth Amendment’ is implicated by governmental investigative activities unless there is an intrusion into a zone of privacy, into ‘the security a man relies upon when he places himself or his property within a constitutionally protected area.’ ” United States v. Miller, 425 U.S. 435, 440 , 96 S.Ct. 1619 , 48 L.Ed.2d 71 (1976) (Hoffa v. United States, 385 U.S. 293, 301-02 , 87 S.Ct. 408 , 17 L.Ed.2d 374 (1966)). 24 The Tenth Circuit has thus not *1131 ed that “[a]n illegal search or seizure only-harms those with legitimate expectations of privacy in the premises searched.” United States v. Jones, 44 F.3d at 871 (citing United States v. Roper, 918 F.2d 885, 886-87 (10th Cir.1990)). Thus, “[t]he proper inquiry” to determine whether a search implicates a defendant’s Fourth Amendment interests still depends, after conducting a trespass-based analysis, on “whether the defendant had an expectation of privacy in the place searched and whether that expectation was objectively reasonable.” Kerns v. Bd. of Comm’rs of Bernalillo Cnty., 888 F.Supp.2d 1176, 1219 (D.N.M.2012).

“Official conduct that does not ‘compromise any legitimate interest in privacy is not a search subject to the Fourth Amendment.” Illinois v. Caballes, 543 U.S. at 409 , 125 S.Ct. 834 (quoting United States v. Jacobsen, 466 U.S. at 123, 104 S.Ct. 1652 ). The Supreme Court has thus recognized that, rather than determining whether law enforcement conduct was a search, it sometimes proves easier to “assess[] when a search is not a search.” Kyllo v. United States, 533 U.S. at 32 , 121 S.Ct. 2038 .

In assessing when a search is not a search, we have applied somewhat in reverse the principle first enunciated in Katz v. United States. Katz involved eavesdropping by means of an electronic listening device placed on the outside of a telephone booth — a location not within the catalog (“persons, houses, papers, and effects”) that the Fourth Amendment protects against unreasonable searches. We held that the Fourth Amendment nonetheless protected Katz from the warrantless eavesdropping because he “justifiably relied” upon the *1132 privacy of the telephone booth. As Justice Harlan’s oft-quoted concurrence described it, a Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable.

Kyllo v. United States, 533 U.S. at 32-33, 121 S.Ct. 2038 . The Supreme Court thus articulated the Katz v. United States rule — which Professor Wayne R. LaFave has noted is “somewhat inaccurately stated as the ‘reasonable expectation of privacy’ test,” Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 2.1(b), at 435 (4th ed., 2004)— which posits: “[A] Fourth Amendment search does not occur ... unless ‘the individual manifested a subjective expectation of privacy in the object of the challenged search,’ and ‘society [is] willing to recognize that expectation as reasonable.’ ” Kyllo v. United States, 533 U.S. at 33 , 121 S.Ct. 2038 (emphasis in original) (quoting California v. Ciraolo, 476 U.S. at 211 , 106 S.Ct. 1809 ).

A “reasonable expectation of privacy” is “said to be an expectation ‘that has a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.’ ” United States v. Jones, 132 S.Ct. at 951 . See United States v. Harmon, 785 F.Supp.2d at 1157 (“To decide whether a reasonable expectation of privacy exists, courts consider concepts of real or personal property law .... ”). In analyzing whether an expectation of privacy is reasonable in the Fourth Amendment context based on property law, “arcane distinctions developed in property and tort law between guests, licensees, invitees, and the like, ought not to control.” Rakas v. Illinois, 439 U.S. at 143 & n. 12, 99 S.Ct. 421 . While ownership or lawful possession is not determinative under the Katz v. United States reasonable-expectation-of-privacy test, it is often a dispositive factor; because the Fourth Amendment is a personal right, a defendant bears the burden of demonstrating “that he gained possession [of the area searched] from the owner or someone with the authority to grant possession.” United States v. Arango, 912 F.2d 441, 445-46 (10th Cir.1990).

i. Subjective Expectation of Privacy.

A defendant maintains a subjective expectation of privacy when the defendant “has shown that ‘he sought to preserve something as private.’” Bond v. United States, 529 U.S. at 338 , 120 S.Ct. 1462 (internal alterations omitted)(quoting Smith v. Maryland, 442 U.S. 735, 740 , 99 S.Ct. 2577 , 61 L.Ed.2d 220 (1979)). Thus, there is no reasonable expectation of privacy in otherwise private information disclosed to a third party. “[T]he Fourth Amendment protects people, not places. What a person knowingly exposes to the public ... is not a subject of Fourth Amendment protection.” Katz v. United States, 389 U.S. at 351 , 88 S.Ct. 507 . The Supreme Court has noted:

This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.

United States v. Miller, 425 U.S. at 443 , 96 S.Ct. 1619 .

The Supreme Court has recognized, however, that subjective expectations of privacy do not always coincide with the interests that the Fourth Amendment is universally thought to protect. In Smith v. Maryland, for instance, the Supreme Court identified situations in which it would not follow the subjective approach:

*1133 Situations can be imagined, of course, in which Katz’ two-pronged inquiry would provide an inadequate index of Fourth Amendment protection. For example, if the Government were suddenly to announce on nationwide television that all homes henceforth would be subject to warrantless entry, individuals thereafter might not in fact entertain any actual expectation or [sic] privacy regarding their homes, papers, and effects. Similarly, if a refugee from a totalitarian country, unaware of this Nation’s traditions, erroneously assumed that police were continuously monitoring his telephone conversations, a subjective expectation of privacy regarding the contents of his calls might be lacking as well. In such circumstances, where an individual’s subjective expectations had been “conditioned” by influences alien to well-recognized Fourth Amendment freedoms, those subjective expectations obviously could play no meaningful role in ascertaining what the scope of Fourth Amendment protection was. In determining whether a “legitimate expectation of privacy” existed in such cases, a normative inquiry would be proper.

442 U.S. at 740 n. 5, 99 S.Ct. 2577 . Most recently, in United States v. Jones, Justice Sotomayor commented that, given the reality of technology in the twenty-first century, it may no longer be sound to universally hold to the third-party disclosure rule to determine whether a subjective expectation of privacy exists:

[I]t may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers. 25 Perhaps, as Justice Alito notes, some people may find the “tradeoff” of privacy for convenience “worthwhile,” or come to accept this “diminution of privacy” as “inevitable,” and perhaps not. I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year. But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy. I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disen-titled to Fourth Amendment protection.

132 S.Ct. at 957 (Sotomayor, J., concur-ringXinternal citations omitted). Regardless what the Supreme Court decides to do with social media on the internet, only the most ignorant or gullible think what they post on the internet is or remains private. See United States v. Meregildo, 883 F.Supp.2d 523, 526 (S.D.N.Y.2012) (Pauley, J.) (holding that a person posting to his Facebook profile had “no justifiable expectation that his ‘friends’ would keep his profile private”).

*1134 ii. Privacy Expectation that Society is Prepared to Recognize as Reasonable.

Under the second step of Katz v. United States’ reasonable-expectation-of-privacy approach, courts must determine “whether society is prepared to recognize that [subjective privacy] expectation as objectively reasonable.” United States v. Ruiz, 664 F.3d 833, 838 (10th Cir.2012) (United States v. Allen, 235 F.3d 482, 489 (10th Cir.2000)). The Supreme Court has cautioned: “The concept of an interest in privacy that society is prepared to recognize as reasonable is, by its very nature, critically different from the mere expectation, however well justified, that certain facts will not come to the attention of the authorities.” United States v. Jacobsen, 466 U.S. 109, 122 , 104 S.Ct. 1652 , 80 L.Ed.2d 85 (1984). Determining whether society would view the expectation as objectively reasonable turns on whether the government’s intrusion infringes on a legitimate interest, based on the values which the Fourth Amendment protects. See California v. Ciraolo, 476 U.S. at 212 , 106 S.Ct. 1809 (explaining that “[t]he test of legitimacy is not whether the individual chooses to conceal assertedly ‘private’ activity,” but instead “whether the government’s intrusion infringes upon the personal and societal values protected by the Fourth Amendment”)(quoting Oliver v. United States, 466 U.S. at 181-83, 104 S.Ct. 1735 ). This second factor of the Katz v. United States reasonable-expectation-of-privacy analysis developed from Justice Harlan’s “attempt to give content to the word ‘justifiably’ in the majority’s assertion that eavesdropping on Katz was a search because it ‘violated the privacy upon which he justifiably relied while using the telephone booth.’ ” LaFave, supra, § 2.1(d), at 439 (quoting Katz v. United States, 389 U.S. at 353 , 88 S.Ct. 507 ). Thus, whether society will recognize a certain expectation of privacy does not turn on whether the hypothetical reasonable person would hold the same expectation of privacy, but rather whether the expectation of privacy is justified or legitimate. The Supreme Court has provided that, while no single factor determines legitimacy, whether society recognizes a privacy interest as reasonable is determined based on our societal understanding regarding what deserves protection from government invasion:

No single factor determines whether an individual legitimately may claim under the Fourth Amendment that a place should be free of government intrusion not authorized by warrant. In assessing the degree to which a search infringes upon individual privacy, the Court has given weight to such factors as the intention of the Framers of the Fourth Amendment, the uses to which the individual has put a location, and our societal understanding that certain areas deserve the most scrupulous protection from government invasion.

Oliver v. United States, 466 U.S. at 177-78, 104 S.Ct. 1735 (internal citations omitted).

The Supreme Court has held that “[o]ffi-cial conduct that does not ‘compromise any legitimate interest in privacy’ is not a search subject to the Fourth Amendment.” Illinois v. Caballes, 543 U.S. at 409 , 125 S.Ct. 834 (quoting United States v. Jacobsen, 466 U.S. at 123, 104 S.Ct. 1652 ). In United States v. Place, the Supreme Court held that the “canine sniff” of a drug-sniffing dog does “not constitute a ‘search’ within the meaning of the Fourth Amendment.” United States v. Place, 462 U.S. at 707 , 103 S.Ct. 2637 . The case arose when law enforcement seized the luggage of an airline passenger and transported it to another location, where a drug-sniffing dog could sniff it. See 462 U.S. at 699 , 103 S.Ct. 2637 . The drug sniffing dog alerted *1135 the officers that drugs were in the luggage, the officers obtained a search warrant, and, upon opening the bags, the officers found over one-thousand grams of cocaine. See 462 U.S. at 699 , 103 S.Ct. 2637 . “While recognizing that a person has a reasonable expectation of privacy in the contents of his or her luggage, the Supreme Court held that the dog’s sniff test was not a Fourth Amendment search and emphasized the unique nature of the investigative technique, which could disclose only criminal activity:

We have affirmed that a person possesses a privacy interest in the contents of personal luggage that is protected by the Fourth Amendment. A “canine sniff” by a well-trained narcotics detection dog, however, does not require opening the luggage. It does not expose noncontraband items that otherwise would remain hidden from public view, as does, for example, an officer’s rummaging through the contents of the luggage. Thus, the manner in which information is obtained through this investigative technique is much less intrusive than a typical search. Moreover, the sniff discloses only the presence or absence of narcotics, a contraband item. Thus, despite the fact that the sniff tells the authorities something about the contents of the luggage, the information obtained is limited. This limited disclosure also ensures that the owner of the property is not subjected to the embarrassment and inconvenience entailed in less discriminate and more intrusive investigative methods.

In these respects, the canine sniff is sui generis. We are aware of no other investigative procedure that is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure. Therefore, we conclude that the particular course of investigation that the agents intended to pursue here— exposure of respondent’s luggage, which was located in a public place, to a trained canine — did not constitute a “search” within the meaning of the Fourth Amendment.

462 U.S. at 707 , 103 S.Ct. 2637 .

In United States v. Jacobsen, the Supreme Court extended this holding to the chemical field test of a white powdery substance to reveal that the substance was cocaine. See 466 U.S. at 122-24, 104 S.Ct. 1652 . A Federal Express employee and supervisor had opened a damaged package, and exposed four zip-lock plastic bags containing six and one-half ounces of white powder. See 466 U.S. at 111, 104 S.Ct. 1652 . They then called the DEA and repacked the contents in the original packaging before they provided the package to the DEA officers. See 466 U.S. at 111, 104 S.Ct. 1652 . When the agents arrived, the agents removed the exposed plastic bags from the broken package, opened each of the four bags, and field-tested the white powder, identifying the powder as cocaine. See 466 U.S. at 111-12, 104 S.Ct. 1652 . The Supreme Court first held that removal of the plastic bags from the tubes and the agent’s visual inspection were not Fourth Amendment searches:

The removal of the plastic bags from the tube and the agent’s visual inspection of their contents enabled the agent to learn nothing that had not previously been learned during the private search. It infringed no legitimate expectation of privacy and hence was not a “search” within the meaning of the Fourth Amendment.

466 U.S. at 120, 104 S.Ct. 1652 (footnote omitted). The Supreme Court noted: “The question remains whether the additional intrusion occasioned by the field test, which had not been conducted by the Federal Express agents and therefore exceeded the scope of the private search, was *1136 an unlawful ‘search’ or ‘seizure’ within the meaning of the Fourth Amendment.” United States v. Jacobsen, 466 U.S. at 122, 104 S.Ct. 1652 . The Supreme Court, relying on United States v. Place, held that the additional digital scan of the white substance was not a Fourth Amendment search, because the test discloses only whether the substance is cocaine and “nothing [else] of special interest”:

The field test at issue could disclose only one fact previously unknown to the agent — whether or not a suspicious white powder was cocaine. It could tell him nothing more, not even whether the substance was sugar or talcum powder. We must first determine whether this can be considered a “search” subject to the Fourth Amendment — did it infringe an expectation of privacy that society is prepared to consider reasonable?

A chemical test that merely discloses whether or not a particular substance is cocaine does not compromise any legitimate interest in privacy. This conclusion is not dependent on the result of any particular test. It is probably safe to assume that virtually all of the tests conducted under circumstances comparable to those disclosed by this record would result in a positive finding; in such cases, no legitimate interest has been compromised. But even if the results are negative — merely disclosing that the substance is something other than cocaine — such a result reveals nothing of special interest. Congress has decided — and there is no question about its power to do so — to treat the interest in “privately” possessing cocaine as illegitimate; thus governmental conduct that can reveal whether a substance is cocaine, and no other arguably “private” fact, compromises no legitimate privacy interest.

Here, as in Place , the likelihood that official conduct of the kind disclosed by the record will actually compromise any legitimate interest in privacy seems much too remote to characterize the testing as a search subject to the Fourth Amendment.

United States v. Jacobsen, 466 U.S. at 122-24, 104 S.Ct. 1652 .

Most recently, where a “dog sniff was performed on the exterior of respondent’s car while he was lawfully seized for a traffic violation,” the Supreme Court, again relying on United States v. Place and also on United States v. Jacobsen, held that “[a]ny intrusion on respondent’s privacy expectations does not rise to the level of a constitutionally cognizable infringement.” Illinois v. Caballes, 543 U.S. at 409 , 125 S.Ct. 834 . 26 The Supreme Court reasoned that the dog sniff in Illinois v. Caballes fell squarely in line with the line of cases holding “that any interest in possessing contraband cannot be deemed ‘legitimate,’ and th[at], governmental conduct that only reveals the possession of contraband ‘compromises no legitimate privacy interests.’ ” 543 U.S. at 408 , 125 S.Ct. 834 (quoting United States v. Jacobsen, 466 U.S. at 123, 104 S.Ct. 1652 ) (emphasis in original). The Supreme Court explained: “This is because the expectation ‘that certain facts will not come to the attention of the authorities’ is not the same as an interest in ‘privacy that society is prepared to consider reasonable,’ ” 543 U.S. at 408-09 , 125 S.Ct. 834 (quoting United States v. Jacobsen, 466 *1137 U.S. at 122, 104 S.Ct. 1652 ). The Supreme Court in Illinois v. Caballes noted that its decision was consistent with Kyllo v. United States, as the thermal imaging device in Kyllo v. United States could detect lawful, “intimate details” in a home:

This conclusion is entirely consistent with our recent decision that the use of a thermal-imaging device to detect the growth of marijuana in a home constituted an unlawful search. Kyllo v. United States, 533 U.S. 27 , 121 S.Ct. 2038 , 150 L.Ed.2d 94 (2001) .... Critical to that decision was the fact that the device was capable of detecting lawful activity — in that ease, intimate details in a home, such as “at what hour each night the lady of the house takes her daily sauna and bath.” Id, at 38, 121 S.Ct. 2038 .... The legitimate expectation that information about perfectly lawful activity will remain private is categorically distinguishable from respondent’s hopes or expectations concerning the nondetection of contraband in the trunk of his car. A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment.

Illinois v. Caballes, 543 U.S. at 409-10 , 125 S.Ct. 834 .

In United States v. Alabi, the defendants possessed thirty-one credit and debit cards, “many of them in their own names, several of which had information on the magnetic strips that related to persons other than the Defendants.” 943 F.Supp.2d at 1275 . The Court reluctantly accepted the defendants’ assertion that they “subjectively intended not to disclose this information to a third party — i.e., intended not to use the cards,” 943 F.Supp.2d at 1275 , but determined that “a privacy expectation in the account information stored on credit and debit cards’ magnetic strips — separate and beyond the credit and debit cards themselves — is not objectively reasonable.” 943 F.Supp.2d at 1280 . The Court explained that the Secret Service’s scan of the cards’ magnetic strips “reveals only the same information revealed in a private search when the card is used as intended,” and, further, that, even if the cards had never been used, the scan “discloses only information known by viewing the outside of the card, or information that the cards and account information are possessed unlawfully....” 943 F.Supp.2d at 1281 . Noting the Supreme Court’s decision in Rakas v. Illinois, in which the Supreme Court “reasoned that society is not prepared to recognize as reasonable an expectation of privacy in a burglar robbing a summer cabin during the offseason,” the Court concluded that society would not recognize “as reasonable a privacy expectation which, at least in contemporary society, would benefit only criminals.” 943 F.Supp.2d at 1287 .

5. Reasonable Government Searches.

“[B]ecause ‘the ultimate touchstone of the Fourth Amendment is reasonableness,’ ” when a search implicating the Fourth Amendment has occurred, the district court must determine whether the search is reasonable. Kentucky v. King, 131 S.Ct. at 1856 (quoting Brigham City v. Stuart, 547 U.S. 398, 403 , 126 S.Ct. 1943 , 164 L.Ed.2d 650 (2006)). See Samson v. California, 547 U.S. 843, 848 , 126 S.Ct. 2193 , 165 L.Ed.2d 250 (2006) (“‘[Ujnder our general Fourth Amendment approach’ we ‘examin[e] the totality of the circumstances’ to determine whether a search is reasonable within the meaning of the Fourth Amendment.”) (quoting United States v. Knights, 534 U.S. 112, 118 , 122 S.Ct. 587 , 151 L.Ed.2d 497 (2001)). “Although the Fourth Amendment ordinarily requires the degree of probability embodied in the term ‘probable cause,’ a lesser degree satisfies the Constitution when the *1138 balance of governmental and private interests makes such a standard reasonable.” United States v. Knights, 534 U.S. at 121 , 122 S.Ct. 587 (citing, as an e.g. cite, Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968)). The Supreme Court has justified this balancing test with the recognition that “[t]he Fourth Amendment does not protect all subjective expectations of privacy, but only those that society recognizes as ‘legitimate.’” Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 654 , 115 S.Ct. 2386 , 132 L.Ed.2d 564 (1995) (quoting New Jersey v. T.L.O., 469 U.S. 325, 338 , 105 S.Ct. 733 , 83 L.Ed.2d 720 (1985)).

“Whether a search is reasonable ‘is determined by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.’ ” Samson v. California, 547 U.S. at 848, 126 S.Ct. 2193 (quoting United States v. Knights, 534 U.S. at 118 , 122 S.Ct. 587 ). See Banks v. United States, 490 F.3d 1178, 1184 (10th Cir.2007) (stating that the Supreme Court “described the totality-of-the-circumstanees test as one where ‘the reasonableness of a search is determined by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy, and on the other, the degree to which it is needed for the promotion of legitimate governmental interests’ ”).

As the text of the Fourth Amendment indicates, the ultimate measure of the constitutionality of a governmental search is “reasonableness.” At least in a case ... where there was no clear practice, either approving or disapproving the type of search at issue, at the time the constitutional provision was enacted, whether a particular search meets the reasonableness standard “ ‘is judged by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.’ ”

Vernonia Sch. Dist. 47J v. Acton, 515 U.S. at 652-53 , 115 S.Ct. 2386 (1995) (quoting Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 617 , 109 S.Ct. 1402 , 103 L.Ed.2d 639 (1989)). The Supreme Court has held that the test of reasonableness under the Fourth Amendment is not a concrete test:

The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case [determining reasonableness] requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.

Bell v. Wolfish, 441 U.S. 520, 559 , 99 S.Ct. 1861 , 60 L.Ed.2d 447 (1979).

In analyzing the first factor — the intrusion on the individual’s privacy— courts and the Tenth Circuit look to the individual’s privacy expectations. See, e.g., United States v. Knights, 534 U.S. 112, 119-120 , 122 S.Ct. 587 , 151 L.Ed.2d 497 (2001) (noting that the petitioner had a “significantly diminished ... reasonable expectation of privacy,” because a condition of his probation was to consent to search of his apartment without notice or probable cause, and because he was clearly notified and informed of the provision); Banks v. United States, 490 F.3d at 1186—87 (noting that the plaintiffs, convicted felons on probation, have a more limited expectation of privacy than the ordinary citizen, noting: “Those who have never been convicted of a felony are the last distinct category. What is ‘reasonable’ under the fourth amendment for a person on conditional release, or a felon, may be unreason *1139 able for the general population.”); Boling v. Romer, 101 F.3d 1336, 1340 (10th Cir.1996) (“[W]hile obtaining and analyzing the DNA or saliva of an inmate convicted of a sex offense is a search and seizure implicating Fourth Amendment concerns, it is a reasonable search and seizure. This is so in light of an inmate’s diminished privacy rights....”)

As Justice Kagan has noted, property law informs society’s expectations about what government intrusions are reasonable: “It is not surprising that in a case involving a search of a home, property concepts and privacy concepts should so align. The law of property ‘naturally enough influenee[s]’ our ‘shared social expectations’ of what places should be free from governmental incursions.” Florida v. Jardines, 133 S.Ct. at 1419 (Kagan, J., concurring) (quoting Georgia v. Randolph, 547 U.S. 103, 111 , 126 S.Ct. 1515 , 164 L.Ed.2d 208 (2006)). Similarly, in Vernonia Sch. Dist. 47J v. Acton, Justice Scalia writing for the majority noted: “What expectations are legitimate varies, of course, with context, depending, for example, upon whether the individual asserting the privacy interest is at home, at work, in a car, or in a public park.” 515 U.S. at 654 , 115 S.Ct. 2386 (internal citations omitted).

6. Consensual Searches.

Searches conducted pursuant to consent constitute one exception to the Fourth Amendment’s search-warrant and probable-cause requirements. See Schneckloth v. Bustamonte, 412 U.S. 218, 219 , 93 S.Ct. 2041 , 36 L.Ed.2d 854 (1973). When an individual consents to a police search, and the consent is “freely and voluntarily given,” the search does not implicate the Fourth Amendment. United States v. Peña, 143 F.3d 1363, 1366 (10th Cir.1998) (quoting Schneckloth v. Bustamonte, 412 U.S. at 219 , 93 S.Ct. 2041 ). The Tenth Circuit has provided a two-part test for determining voluntariness, which requires that the government (i) “ ‘proffer clear and positive testimony that consent was unequivocal and specific and intelligently given,’ ” and (ii) “the officers must have used no ‘implied or express duress or coercion.’ ” United States v. Sanchez, 608 F.3d 685, 690 (10th Cir.2010) (quoting United States v. Taverna, 348 F.3d 873, 878 (10th Cir.2003)).

Determining whether a party’s consent was free and voluntary is a question of fact to be determined from the totality of the circumstances. See United States v. Peña, 143 F.3d at 1366. The Supreme Court and the Tenth Circuit have developed a non-exhaustive list of factors that courts should consider when trying to determine whether a defendant’s consent was voluntarily given:

(i) the “threatening presence of several officers;” (ii) the “use of aggressive language or tone of voice indicating that compliance with an officer’s request is compulsory,” or, conversely, the “officer’s pleasant manner and [] tone of voice;” (iii) the “prolonged retention of a person’s personal effects such as identification,” or, conversely, “the prompt return of the defendant’s identification and papers;” the “absence of other members of the public,” or, conversely, whether the stop occurs in “a public location such as ‘the shoulder of an interstate highway, in public view;’ ” (v) the “officer’s failure to advise the defendant that [he or] she is free to leave.” United States v. Ledesma, 447 F.3d [1307,] 1314 [ (10th Cir.1997) ] (citing and quoting numerous sources). Other factors include: (vi) “the display of a weapon, [and (vii) ] physical touching by the officer.” United States v. Anderson, 114 F.3d 1059, 1064 (10th Cir.1997).

United States v. Sedillo, No. CR 08-1419 JB, 2010 WL 965743 , at *12 (D.N.M. Feb. *1140 19, 2010) (Browning, J) (some alterations in original). See United States v. Fox, 600 F.3d 1253, 1258 (10th Cir.2010).

Because courts are required to look at the totality of the circumstances in determining whether an individual’s consent was voluntary, see United States v. Peña, 143 F.3d at 1366, no one factor is dispositive in a court’s inquiry into the circumstances. For example, although an officer’s failure to advise a defendant that he or she is free to leave might suggest that coercive law enforcement conduct caused the defendant’s consent to search, the Supreme Court has ruled that officers do not need to advise an individual of his or her right to refuse to consent to a search for that individual’s consent to be voluntary. See Schneckloth v. Bustamonte, 412 U.S. at 232 , 93 S.Ct. 2041 . Moreover, the mere presence of officers by exits to a building, threatening no more than to question individuals if they seek to leave, “should not [result] in any reasonable apprehension by any [individual] that they would be seized or detained in any meaningful way.” United States v. Drayton, 536 U.S. 194, 205 , 122 S.Ct. 2105 , 153 L.Ed.2d 242 (2002) (internal citations omitted). Additionally, an officer’s display of a weapon may contribute to the coercive nature of a situation, but “[t]he presence of a holstered firearm ... is unlikely to contribute to the coerciveness of the encounter absent active brandishing of the weapon.” United States v. Drayton, 536 U.S. at 205, 122 S.Ct. 2105 . As such, “it is only by analyzing all the circumstances of an individual consent that it can be ascertained whether in fact it was voluntary or coerced. It is this careful sifting of the unique facts and circumstances of each case that is evidenced in our prior decisions involving consent searches.” Schneckloth v. Bustamonte, 412 U.S. at 232 , 93 S.Ct. 2041 .

7. Legal Standard for Probable Cause in an Affidavit in Support of a Warrant.

Probable cause must support a search warrant, which requires “more than mere suspicion but less evidence than is necessary to convict.” United States v. Burns, 624 F.2d 95, 99 (10th Cir.1980). To establish probable cause to justify a search of a home, an affidavit in support of a search warrant “must contain facts sufficient to lead a prudent person to believe that a search would uncover contraband or evidence of criminal activity.” United States v. Danhauer, 229 F.3d 1002, 1006 (10th Cir.2000). “Probable cause undoubtedly requires a nexus between suspected criminal activity and the place to be searched.” United States v. Corral-Corral, 899 F.2d 927, 937 (10th Cir.1990). The task of the magistrate judge issuing the search warrant

is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

United States v. Reed, 195 Fed.Appx. 815, 821 (10th Cir.2006) (unpublished) (quoting Illinois v. Gates, 462 U.S. 213, 238 , 103 S.Ct. 2317 , 76 L.Ed.2d 527 (1983)). See United States v. Glover, 104 F.3d 1570, 1578 (10th Cir.1997) (finding that, in determining whether an affidavit supports a finding of probable cause, the court must review the affidavit as a whole and look to the totality of the information contained therein), abrogated on other grounds by Corley v. United States, 556 U.S. 303 , 129 S.Ct. 1558 , 173 L.Ed.2d 443 (2009). In making his or her determination, the magistrate judge “may draw reasonable inferences from the material provided in the *1141 warrant application.” United States v. Rowland, 145 F.3d 1194, 1205 (10th Cir.1998).

“A reviewing court should accord great deference to a magistrate’s determination of probable cause.” United States v. Reed, 195 Fed.Appx. at 822 . The court’s duty is “simply to ensure that the magistrate had a substantial basis for ... concluding] that probable cause existed.” Illinois v. Gates, 462 U.S. at 236, 238-39, 103 S.Ct. 2317 . This deference is appropriate to further the Fourth Amendment’s strong preference for warrants. See Massachusetts v. Upton, 466 U.S. 727, 733 , 104 S.Ct. 2085 , 80 L.Ed.2d 721 (1984); United States v. Ventresca, 380 U.S. 102, 105-06 , 85 S.Ct. 741 , 13 L.Ed.2d 684 (1965) (“An evaluation of the constitutionality of a search warrant should begin with the rule that the informed and deliberate determinations of magistrates empowered to issue warrants ... are to be preferred over the hurried action of office[r]s .... ”). Because of the strong preference for warrants, “in a doubtful or marginal case a search under a warrant may be sustainable where without one it would fall.” United States v. Ventresca, 380 U.S. at 106 , 85 S.Ct. 741 .

The deference accorded a magistrate judge’s probable cause determination, however, is not boundless. See United States v. Leon, 468 U.S. 897, 914 , 104 S.Ct. 3405 , 82 L.Ed.2d 677 (1984). The Court should not defer to a magistrate judge’s probable-cause determination where there is no substantial basis for concluding that the affidavit in support of the warrant established probable cause. See United States v. Danhauer, 229 F.3d at 1006 . Specifically, the Court should not defer to a magistrate judge’s probable-cause determination if it “is a mere ratification of the bare conclusions or ‘hunches’ of others or where it involves an improper analysis of the totality of the circumstances.” United States v. Reed, 195 Fed.Appx. at 822 (citing United States v. Leon, 468 U.S. at 915, 104 S.Ct. 3405 ; Massachusetts v. Upton, 466 U.S. 727, 734 , 104 S.Ct. 2085 , 80 L.Ed.2d 721 (1984); Illinois v. Gates, 462 U.S. at 239, 103 S.Ct. 2317 ).

8. The Particularity Requirement for Search Warrants.

The Supreme Court has stated that “those searches deemed necessary should be as limited as possible.” Coolidge v. New Hampshire, 403 U.S. 443, 467 , 91 S.Ct. 2022 , 29 L.Ed.2d 564 (1971). The Tenth Circuit has explained that “the Fourth Amendment requires that the government describe the items to be seized with as much specificity as the government’s knowledge and circumstances allow, and warrants are conclusively invalidated by their substantial failure to specify as nearly as possible the distinguishing characteristics of the goods to be seized.” Cassady v. Goering, 567 F.3d 628, 635 (10th Cir.2009) (quoting United States v. Leary, 846 F.2d 592, 600 (10th Cir.1988)). The particularity requirement prevents general searches and strictly limits the discretion of the officer executing the warrant. See Voss v. Bergsgaard, 774 F.2d 402, 404 (10th Cir.1985) (“The particularity requirement ensures that a search is confined in scope to particularly described evidence relating to a specific crime for which there is demonstrated probable cause.”); United States v. Janus Indus., 48 F.3d 1548, 1553 (10th Cir.1995) (“As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.”) (quoting Stanford v. Texas, 379 U.S. 476, 485 , 85 S.Ct. 506 , 13 L.Ed.2d 431 (1965)). “A description is sufficiently particular when it enables the searcher to reasonably ascertain and identify the things authorized to be seized.” United States v. Janus Indus., 48 F.3d at 1553 (“The test applied to *1142 the description of the items to be seized is a practical one.”).

In Cassady v. Goering, the search warrant authorized the search of the plaintiffs entire farm, including his house, and the seizure of “[a]ny & all narcotics,” “[a]ny and all illegal contraband,” and various specific items mostly related to a narcotics operation, as well as the search and seizure of “all other evidence of criminal activity” and all personal property that was stolen, embezzled, or otherwise illegal. 567 F.3d at 635 . The Tenth Circuit found that the warrant violated the plaintiffs Fourth Amendment rights, because “[t]he warrant[] allowed precisely the kind of rummaging through a person’s belongings, in search of evidence of even previously unsuspected crimes or of no crime at all, that the Fourth Amendment proscribes.” 567 F.3d at 635 (quoting Foss v. Bergsgaard, 774 F.2d at 405 ). The Tenth Circuit explained that it had previously “applied a blanket suppression where officers conducted a general search for evidence of crimes not specifically listed in the warrant,” 567 F.3d at 643 (emphasis in original) (citing United States v. Foster, 100 F.3d 846, 851-52 (10th Cir.1996); United States v. Medlin, 842 F.2d 1194, 1199-1200 (10th Cir.1988)); given that line of cases, the Tenth Circuit said “it would be an odd result not to suppress warrants that expressly authorize a general search and seizure,” 567 F.3d at 643 (emphasis in original).

9. Warrantless Searches of Homes.

“[T]he warrantless entry of the home is ‘the chief evil against which ... the Fourth Amendment is directed.’ ” United States v. Lowe, 999 F.2d 448, 451 (10th Cir.1993) (quoting United States v. United States District Court, 407 U.S. 297, 313 , 92 S.Ct. 2125 , 32 L.Ed.2d 752 (1972)). “A warrantless search of a defendant’s home is unreasonable absent exigent circumstances or consent.” United States v. Pikyavit, 527 F.3d 1126, 1130 (10th Cir.2008). The Fourth Amendment’s protection of the home against warrantless searches extends to a home’s curtilage. See United States v. Dunn, 480 U.S. 294 , 107 S.Ct. 1134 , 94 L.Ed.2d 326 (1987); Oliver v. United States, 466 U.S. 170 , 104 S.Ct. 1735 , 80 L.Ed.2d 214 (1984).

a. Curtilage.

In United States v. Dunn, the Supreme Court articulated four factors that should be used when determining whether an area is within the curtilage of a house for Fourth Amendment purposes. These factors are

the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by.

480 U.S. at 301 , 107 S.Ct. 1134 . Backyards that are enclosed and adjacent to a house are generally considered to be part of the curtilage. See United States v. Hatfield, 333 F.3d 1189, 1196 (10th Cir.2003); United States v. Jenkins, 124 F.3d 768, 772-73 (6th Cir.1997). Even partially enclosed backyards have been found to be part of a home’s curtilage. See, e.g., United States v. Swepston, 987 F.2d 1510, 1515 (10th Cir.1993) (holding partial enclosure consistent with area being curtilage), overruled in part on other grounds by United States v. Cousins, 455 F.3d 1116 (10th Cir.2006); United States v. Jenkins, 124 F.3d at 773 (same).

b. Consent.

A warrantless search is constitutional if consent is given for the search. Consent to a search must be unequivocal, specific, and freely given. See United *1143 States v. Guerrero, 472 F.3d 784, 789 (10th Cir.2007); United States v. Davis, 197 F.3d 1048, 1052 (10th Cir.1999); United States v. Butler, 966 F.2d 559, 562 (10th Cir.1992). Consent does not need to be spoken, but “may instead be granted through gestures or other indications of acquiescence, so long as they are sufficiently comprehensible to a reasonable officer.” United States v. Guerrero, 472 F.3d at 789-90 . “Non-verbal conduct, considered "with other factors, can constitute voluntary consent to search.” United States v. Gordon, 173 F.3d 761, 766 (10th Cir.1999). In United States v. Gordon, for example, the Tenth Circuit found implied consent when, in response to an officer’s question whether the defendant could open a locked bag, the defendant handed the officer the key. See 173 F.3d at 766 .

One strategy to gain consent to a search is a knock and talk, and the knock and talk itself is not a search. “[P]olice officers do not engage in a search when they approach the front door of a residence and seek to engage in what is termed a ‘knock and talk,’ ie., knocking on the door and seeking to speak to an occupant for the purpose of gathering evidence.” Florida v. Jardines, 133 S.Ct. at 1423 (Alito, J., dissenting).

When law enforcement officers who are not armed with a warrant knock on a door, they do no more than any private citizen might do. And whether the person who knocks on the door and requests the opportunity to speak is a police officer or a private citizen, the occupant has no obligation to open the door or to speak.

Kentucky v. King, — U.S.-, 131 S.Ct. 1849, 1862 , 179 L.Ed.2d 865 (2011). The Tenth Circuit has explained that reasonable suspicion is unnecessary for a knock- and-talk investigation, because, “[a]s commonly understood, a ‘knock and talk’ is a consensual encounter and therefore does not contravene the Fourth Amendment, even absent reasonable suspicion.” United States v. Cruz-Mendez, 467 F.3d 1260, 1264 (10th Cir.2006). Police officers may approach a home, entering the curtilage surrounding that home that would be the normal route of access to the home, and knock, “precisely because that is ‘no more than any private citizen might do,’ ” United States v. Shuck, 713 F.3d 563, 568 (10th Cir.2013) (quoting Florida v. Jardines, 133 S.Ct. at 1416).

c. Exigent Circumstances.

A warrantless search of a home can also be constitutional when there are exigent circumstances. For exigent circumstances regarding safety to justify a warrantless search of a home: “(1) the officers [must have] had an objectively reasonable basis to believe that there was an immediate need to enter to protect the safety of themselves or others, and (2) the conduct of the entry [must have been] reasonable.” United States v. Reeves, 524 F.3d 1161, 1169 (10th Cir.2008). See United States v. Smith, 797 F.2d 836, 840 (10th Cir.1986). While officers do not need probable cause to establish that exigent circumstances existed, “there must be some reasonable basis, approaching probable cause,” supporting the search of the area. United States v. Smith, 797 F.2d at 840 (internal quotation marks omitted).

LAW REGARDING UNLAWFUL ARREST

“A police officer violates an ar-restee’s clearly established Fourth Amendment right to be free of unreasonable seizure if the officer makes a warrantless arrest without probable cause.” Olsen v. Layton Hills Mall, 312 F.3d 1304, 1312 (10th Cir.2002) (citing Tennessee v. Garner, 471 U.S. 1, 7 , 105 S.Ct. 1694 , 85 L.Ed.2d 1 (1985)). “The law ... is unambiguous: a government official must have *1144 probable cause to arrest an individual.” Cortez v. McCauley, 478 F.3d 1108, 1117 (10th Cir.2007) (citing Tennessee v. Garner, 471 U.S. at 7 , 105 S.Ct. 1694 ). See Michigan v. DeFillippo, 443 U.S. 31, 36 , 99 S.Ct. 2627 , 61 L.Ed.2d 343 (1979) (“[T]he Constitution permits an officer to arrest a suspect without a warrant if there is probable cause to believe that the suspect has committed or is committing an offense.”). “Probable cause exists if facts and circumstances within the arresting officer’s knowledge and of which he or she had reasonably trustworthy information are sufficient to lead a prudent person to believe that the arrestee has committed or is committing an offense.” Keylon v. City of Albuquerque, 535 F.3d 1210, 1216 (10th Cir.2008) (quoting Romero v. Fay, 45 F.3d 1472, 1476 (10th Cir.1995)). The Supreme Court has stated that the existence of probable cause for an arrest depends on whether, based on historical facts leading up to the arrest, an objectively reasonable police officer would find probable cause:

The principal components of a determination of reasonable suspicion or probable

cause will be the events which occurred leading up to the stop or search, and then the decision whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion or to probable cause. The first part of the analysis involves only a determination of historical facts, but the second is a mixed question of law and fact: “[T]he historical facts are admitted or established, the rule of law is undisputed, and the issue is whether the facts satisfy the [relevant] statutory [or constitutional] standard, or to put it another way, whether the rule of law as applied to the established facts is or is not violated.”

Ornelas v. United States, 517 U.S. 690, 696-97 , 116 S.Ct. 1657 , 134 L.Ed.2d 911 (1996) (quoting Pullman-Standard v. Swint, 456 U.S. 273 , 289 n. 19, 102 S.Ct. 1781 , 72 L.Ed.2d 66 (1982)) (alterations in original).

The Tenth Circuit has explained that a plaintiff alleging that the “government has unconstitutionally imprisoned him has at least two potential constitutional claims: ‘The initial seizure is governed by the Fourth Amendment, but at some point after arrest, and certainly by the time of trial, constitutional analysis shifts to the Due Process Clause.’ ” Mondragon v. Thompson, 519 F.3d 1078, 1082 (10th Cir.2008) (quoting Pierce v. Gilchrist, 359 F.3d 1279, 1285-86 (10th Cir.2004)). If the plaintiff was imprisoned without legal process, his Fourth Amendment claim 27 is analogous to false arrest or false imprisonment; if he was imprisoned “pursuant to legal but wrongful process, he has a claim under the procedural component of the Fourteenth Amendment’s Due Process Clause analogous to a tort claim for malicious prosecution.” 519 F.3d at 1082 . More recently, the Tenth Circuit has explained that the Fourteenth Amendment claim analogous to a malicious prosecution claim would not be available if an adequate state remedy exists, but a plaintiff may have the option of bringing a Fourth Amendment claim using a similar malicious prosecution theory. See Myers v. Koopman, 738 F.3d 1190, 1192 (10th Cir.2013). In Myers v. Koopman, the *1145 plaintiff alleged that a detective fabricated facts to create the illusion of probable cause and, as a result, the plaintiff spent three days in custody. See 738 F.3d at 1192 . The plaintiff brought a claim under § 1983 for malicious prosecution, alleging that the detective violated his Fourth and Fourteenth Amendment rights. See 738 F.3d at 1192 . The plaintiff brought the Fourteenth Amendment malicious prosecution claim based on the detective’s conduct in “conjurfing] up facts to create the illusion of probable cause for an arrest warrant and subsequent prosecution.” 738 F.3d at 1193 . The Tenth Circuit explained that “[t]he Fourteenth Amendment protects individuals against deprivations of liberty without due process of law. If a state actor’s harmful conduct is unauthorized and thus could not be anticipated pre-deprivation, then an adequate post-deprivation remedy — such as a state tort claim — will satisfy due process requirements.” 738 F.3d at 1193 (citations omitted). Because a malicious prosecution claim under Colorado law was available, the Tenth Circuit affirmed the district court’s dismissal: “The existence of the state remedy flattens the Fourteenth Amendment peg on which [the plaintiff] now tries to hang his § 1983 malicious-prosecution claim.” 738 F.3d at 1193 . The plaintiff also brought a malicious prosecution claim under the Fourth Amendment; the district court analogized the claim to a false imprisonment claim, but the Tenth Circuit said that the plaintiff was correct in casting his claim as malicious prosecution, “because he was seized after the institution of legal process.” 738 F.3d at 1194 . The Tenth Circuit described the difference between a § 1983 claim for false imprisonment and malicious prosecution under the Fourth Amendment:

What separates the two claims? — the institution of legal process. Unreasonable seizures imposed without legal process precipitate Fourth Amendment false imprisonment claims. See Wallace[ v. Kato], 549 U.S. [384,] 389, 127 S.Ct. 1091 [ 166 L.Ed.2d 973 (2007)] (concluding that false imprisonment was the proper analogy where defendants did not have a warrant for the plaintiffs arrest and thus detention occurred without legal process). Unreasonable seizures imposed with legal process precipitate Fourth Amendment malicious-prosecution claims. See Heck[ v. Humphrey], 512 U.S. [477,] 484, 114 S.Ct. 2364 [ 129 L.Ed.2d 383 (1994)] (where detention occurs with legal process the “common-law cause of action for malicious prosecution provides the closest analogy”). Like rain and snow, the claims emanate from the same source, but under different conditions.

738 F.3d at 1194 (footnote omitted). The Tenth Circuit explained that the plaintiff was “arrested pursuant to a validly issued — if not validly supported — arrest warrant” and that the plaintiffs suit “challenges the probable-cause determination that generated the legal process.” 738 F.3d at 1195 .

LAW REGARDING COLLATERAL ES-TOPPEL AND STATE CRIMINAL JUDGMENTS

In Allen v. McCurry, 449 U.S. 90 , 101 S.Ct. 411 , 66 L.Ed.2d 308 (1980), the Supreme Court held that defendants in a 42 U.S.C. § 1983 action could invoke criminal proceedings as collateral estoppel. See 449 U.S. at 103-05 , 101 S.Ct. 411 . Section 1738 of Title 28 of the United States Code generally requires “federal courts to give preclusive effect to state-court judgments whenever the courts of the State from which the judgments emerged would do so.” Allen v. McCurry, 449 U.S. at 96 , 101 S.Ct. 411 . Under New Mexico law, “collateral estoppel, also called issue preclusion, prevents a party from re-litigating ‘ultimate facts or issues actually *1146 and necessarily decided in a prior suit.’ ” Ullrich v. Blanchard, 2007-NMCA-145, ¶ 19 , 142 N.M. 835 , 171 P.3d 774 (quoting Deflon v. Sawyers, 2006-NMSC-025, ¶ 13 , 139 N.M. 637 , 137 P.3d 577 (2006); Adams v. United Steelworkers of Am., 1982-NMSC-014 , 97 N.M. 369, 373 , 640 P.2d 475, 479 ). For collateral estoppel to apply, four elements must be met: “(1) the parties in the current action were the same or in privity with the parties in the prior action, (2) the subject matter of the two actions is different, (3) the ultimate fact or issue was actually litigated, and (4) the issue was necessarily determined.” Ullrich v. Blanchard, 2007-NMCA-145, ¶ 19 (quoting City of Sunland Park v. Macias, 2003-NMCA-098, ¶ 10 , 134 N.M. 216 , 75 P.3d 816 ). If the party invoking the doctrine establishes a prima-facie case, then the burden shifts to the party opposing collateral estoppel to show that he or she was not afforded a fair opportunity to litigate the issue in the prior proceeding. See Padilla v. Intel Corp., 1998-NMCA-125 , 125 N.M. 698, 701 , 964 P.2d 862, 865 ; State v. Bishop, 1992-NMCA-034 , 113 N.M. 732, 734 , 832 P.2d 793, 795 .

Whether the doctrine of collateral estoppel should be applied is within the trial court’s discretion, and the exercise of discretion is reviewed for an abuse of discretion on appeal. See Shovelin v. Cent. N.M. Elec. Coop., 1993-NMSC-015 , 115 N.M. 293, 299 , 850 P.2d 996, 1002 . Even when all the elements of collateral estoppel are present, the trial court must consider whether countervailing equities militate against application of the doctrine. See Hyden v. Law Firm of McCormick, Forbes, Caraway & Tabor, 1993-NMCA-008 , 115 N.M. 159, 164 , 848 P.2d 1086, 1091 . Collateral estoppel should be applied only where the judge determines that its application would not be fundamentally unfair. See Reeves v. Wimberly, 1988-NMCA-038 , 107 N.M. 231, 234 , 755 P.2d 75, 78 . New Mexico courts have held that “[collateral estoppel may bar the relitigation of ultimate facts or issues decided in a prior criminal action.” City of Roswell v. Hancock, 1998-NMCA-130 , 126 N.M. 109, 112 , 967 P.2d 449, 452 .

LAW REGARDING POST-ARREST DETENTION

In the context of a warrantless arrest, “a policeman’s on-the-scene assessment of probable cause provides legal justification for arresting a person suspected of crime, and for a brief period of detention to take the administrative steps incident to arrest.” Gerstein v. Pugh, 420 U.S. 103, 113-14 , 95 S.Ct. 854 , 43 L.Ed.2d 54 (1975). In County of Riverside v. McLaughlin, 500 U.S. 44 , 111 S.Ct. 1661 , 114 L.Ed.2d 49 (1991), the Supreme Court held that law enforcement may detain an individual after a lawful arrest pending a neutral probable-cause determination up to forty-eight hours without violating the Constitution unless the delay is unreasonable. See 500 U.S. at 56 , 111 S.Ct. 1661 . The Supreme Court in County of Riverside v. McLaughlin stated: “[A] jurisdiction that provides judicial determinations of probable cause within 48 hours of arrest will, as a general matter, comply with the promptness requirement of Gerstein . For this reason, such jurisdictions will be immune from systemic challenges.” 500 U.S. at 56 , 111 S.Ct. 1661 . While provision for a determination of probable cause within forty-eight hours will withstand a systematic challenge, in individual cases, a delay of forty hours or less might result in a violation if the delay is unreasonable, see 500 U.S. at 56 , 111 S.Ct. 1661 , or if “conditions or restrictions of pretrial detention ... amount to punishment of the detainee,” Bell v. Wolfish, 441 U.S. 520, 535 , 99 S.Ct. 1861 , 60 L.Ed.2d 447 (1979).

In Gerstein v. Pugh, the plaintiffs challenged Florida’s procedures whereby “a person arrested without a warrant and charged by information may be *1147 jailed or subjected to other restraints pending trial without any opportunity for a probable cause determination.” 420 U.S. at 116 , 95 S.Ct. 854 . The Honorable Lewis Powell, Associate Justice of the Supreme Court, noted that arrest and detention procedures derive from the Fourth Amendment, see 420 U.S. at 111 , 95 S.Ct. 854 , and explained that, “while the Court has expressed a preference for the use of arrest warrants when feasible, it has never invalidated an arrest supported by probable cause solely because the officers failed to secure a warrant.” 420 U.S. at 113 , 95 S.Ct. 854 . Justice Powell stated that a police officer’s “on-the-scene assessment of probable cause provides legal justification for arresting a person suspected of crime, and for a brief period of detention to take the administrative steps incident to arrest,” but that, after the suspect is in custody, “the reasons that justify dispensing with the magistrate’s neutral judgment [in reviewing the factual justification prior to any arrest] evaporate.” 420 U.S. at 113-14 , 95 S.Ct. 854 .

There no longer is any danger that the suspect will escape or commit further crimes while the police submit their evidence to a magistrate. And, while the State’s reasons for taking summary action subside, the suspect’s need for a neutral determination of probable cause increases significantly. The consequences of prolonged detention may be more serious than the interference occasioned by arrest. Pretrial confinement may imperil the suspect’s job, interrupt his source of income, and impair his family relationships. Even pretrial release may be accompanied by burdensome conditions that effect a significant restraint of liberty. When the stakes are this high, the detached judgment of a neutral magistrate is essential if the Fourth Amendment is to furnish meaningful protection from unfounded interference with liberty.

420 U.S. at 114 , 95 S.Ct. 854 (internal citations omitted). The Supreme Court

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