Opposition Brief — Stege v. Girard

Bupreme Court, US

it. E D

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te tn a

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1998

2D and MITCHI

Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Tenth Circuit

BRIEF IN OPPOSITION FOR RESPONDENTS

SMITH

Ys ha > x Irorermr

CAMERON PETERS

McCLAUGHERTY, SILVER & Di

Post Office Box 8680

Santa Fe, New Mexico 87504-8680

(505) GS88-8804

PRESS OF BYRON S. ADAMS, WASHINGTON,

Mm BEST AVAILABLE COPY;

QUESTIONS PRESENTED FOR REVIEW

(1) Whether a reasonable police officer under the

doctrine of qualified immunity and under the cir-

cumstances of this case could have believed the

warrantless entry to be lawful in light of clearly

established law and the information the searching

officers possessed at the time.

It was the decision of the Tenth Circuit that the

law at the time of this incident did not clearly es-

tablish whether the offenses being committed by the

Petitioners were sufficient to justify a warrantless

entry based on probable cause and exigent circum-

stances. The Tenth Circuit agreed with the United

States District Court for the District of New Mexico

that an objectively reasonable officer would have be-

lieved that the warrantless entry was lawful.

Petitioners mistakenly imply that the decision of

the Tenth Circuit Court of Appeals was based on the

conclusion by the Tenth Circuit that the offense of

contributing to the delinquency of a minor (a fourth

degree felony under New Mexico statutes) was im-

plicated by the Respondents as the reason for making

the warrantless search. The issue of whether a puulic

official is entitled to qualified immunity is determined

by an objective standard in light of clearly established

law and the information possessed by the searching

officers. The searching officer’s subjective belief about

the search is irrelevant to a determination of whether

a public official is entitled to qualified immunity.

ee 4

, |

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ..........csecceeeeess i

TABLE OF COMBWIUD cicccobismccacssenemiumbehesieion ii

TABLE OF AtlTORGUOUOD sicccccscsstdicteicinenssteiinianvinnns ili

STATEMENT OF TOME CRI vicciccccearsteeserrtteteensenss 1

SUMMARY GF ADUIIIIGD accicsscascsnsscacscmssvessiecesntoces

PIERIBINY ccciansisincsiguacadeammaa aaa

COORRCRASIIGIRE 5:e.1ecisssuicidicnnneuaansaaalaaieen aan aaemianade 11

pN 5 1.) GRMN eR Mt hy rE la

TABLE OF AUTHORITIES

CASES Page

Anderson v. Creighton, 483 U.S. 635, 97 L.Ed. 2d

523, 107 S.Ct. 3034 (1987) ......eeseceeeereeeerees 5,8,11

Bledsoe v. Garcia, 742, F.2d 1237, 1241 (10th Cir.

1984) .o.....ceccccscsccccsssseeeesscssssressssceeeesnneesssesereres

Cooledge v. New Hampshire, 403 U.S. 443, 29

L.Ed.2d 564, 91 S.Ct. 2022, 2032 (1971) ....... 7

Dunaway v. New York, 442 U.S. 200; 60 L.Ed. 2d

824, 99 S.Ct. 2248 (1979) ........ceeereeerreeeerereees 10

Harlow v. Fitzgerald, 457 U.S. 800, 73 L.Ed. 2d

396, 102 S.Ct. 2727 (1982) .......scseeseceerreeererees 4,5

Malley v. Briggs, 475 U.S. 335, 89 L.Ed.2d 271,

106 S.Ct. 1092 (1986) ..........:ccccccceeereeeeeeeeeees 11

Patrick v. Miller, 953 F.2d 1240 (10th Cir.

1992) .......c.ceccccsscccccsssscscrccnncsssscssccssscsesercsnnseeses 5

Payton v. New York, 445 U.S. 573, 63 L.Ed. 2d

639, 100 S.Ct. 1371 (1980) .........esceeeereeereeeeees 5,6

United States v. Aquino, 836 F.2d 1268 (10th Cir.

1988) .........ccccsscssccesscsssessscsecssssncssesssssseensennsecess 7,9,10

United States v. Chavez, 812 F.2d 1295 (10th Cir.

TOBT) cccrcccnrerscrscssecnsssccssesocconccesoscnsssccsconssocessoees 9,10

United States v. Herring, 582 F.2d 535 (10th Cir.

1978) ......cc.cccccsccsssscscsssscscsnccessssosccsscssssccsensersess 9,11

United — vy. Jimenez, 864 F.2d 686 (10th Cir.

19BB) ....c.crccerscssnesecrseccrcescceescsssssccescccccsencseccseess

United States v. Lopez, 777 F.2d 543 (10th Cir.

TOBE) ....cccrceseccesvcessccesccccencoseccanesscscecssocssccsscesees 9,11

United States v. McEachin, 670 F.2d 1139 (D.C.

Cle, 1961) .....ccrcccssccsecccoccsccccccccesccernssscecscescssecees

Welsh v. Wisconsin, 466 U.S. 740, 80 L.Ed 2d 732,

104 S.Ct. 2091 (1984) ........cceeceeerrceeeeeeeeeeeeeenes 6

iv

Table of Authorities Continued

STATUTES

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RESPONDENTS’ APPENDIX

Affidavit of Mitchell B. Trimmer, filed in the United

States District Court for the District of New

Mexico on February 14, 1992 .......... eee

Affidavit of C.. Joseph Girard, filed in the United

States District Court for the District of New

Mexico on October 19, 1992 ..............cce eee eeeeee

STATEMENT OF THE CASE

Petitioners brought this civil rights action for al-

leged violation of their civil rights in the United States

District Court of the District of New Mexico on Oc-

tober 31, 1991. The action arises out of an incident

which occurred on June 29, 1991, shortly before mid-

night, in which Respondents, Los Alamos, New Mex-

ico police officers responded to a report of a party

at Petitioners’ home. Respondents entered Petitioners

home without search warrants during the course of

the party which involved underage individuals con-

suming alcohol and subsequently arrested Petitioners.

At the trial on the merits, following the close of

Petitioners case-in-chief, the District Court directed

a verdict in favor of Respondents based upon its de-

termination that Respondents were entitled to qual-

ified immunity. The Tenth Circuit Court of Appeals

affirmed the District Court on grounds that at the

time of the incident, the law did not clearly establish

whether the offenses involved were sufficient to jus-

tify a warrantless entry based upon probable cause

and exigent circumstances and that an objectively rea-

sonable officer could have believed that the warrant-

less entry was lawful.

In addition to the Statement of Facts in Petitioners’

Petition for a Writ of Certiorari, the following facts

are material to the consideration of the question pre-

sented.

1. Upon arrival at the Stege residence, Lieutenant

Girard observed a large number of automobiles parked

in front of the residence. (Appendix, p. 5a).

2. Lieutenant Girard believed a number of offenses

were being committed in the Stege residence includ-

ing the offenses of disorderly conduct, minor in pos-

session of alcohol, tampering with evidence and giving

alcohol to a minor. (Appendix, p. 6a).

3. Lieutenant Girard believed evidence was being

destroyed once persons inside the Stege residence

found out police were outside. Jd.

4. A number of persons at the party in question

were apprehended attempting to flee the party from

the back door of the residence by officers assisting

Respondents’ in response to the report of a loud party

in progress. (Appendix, pp. 6a).

5. Open beer cans and bottles were scattered every-

where in the residence. (Appendix, p. 6a).

6. Approximately 10 to 12 underage individuals

were found hiding in bedroom and bathroom closets.

Id.

7. Approximately 25 individuals were present in the

residence at the time of the officers’ entry. (Appendix

7a).

8. Corporal Trimmer had seen David Danforth, an

underage individual, drinking alcohol prior to Trim-

mer’s entry into the house. David Danforth was found

by Officer Trimmer in an upstairs closet hiding behind

a pile of clothes. (Appendix, pp. la, 2a).

SUMMARY OF ARGUMENT

The Petition for Writ of Certiorari fails to dem-

onstrate that this case is appropriate for review by

this Court. The authorities relied upon by Petitioners

do not establish that the decision of the Tenth Circuit

Court of Appeals was in error or in conflict with

federal or state law. None of the general considera-

tions governing review on writ of certiorari outlined

“ica acaallaaliaiaaaiiaeiiiiael

3

in Supreme Court Rule 10 or other special reasons

exist to justify review by this Court.

In this case involving whether Respondents were

entitled to qualified immunity, the law in existence

at the time of the incident created a gray area as to

whether the offenses involved were sufficiently seri-

ous to justify a warrantless entry and search.

Petitioners have not met their burden of establishing

that the law clearly established Respondents were not

entitled to qualified immunity based on the circum-

stances surrounding the warrantless search. Because

the law was not clearly established that the conduct

of Respondents was in violation of the law, the Tenth

Circuit correctly concluded that Respondents were en-

titled to qualified immunity.

In light of the circumstances at the time of the

incident, it was reasonable for Respondents to con-

clude that the warrantless entry and search was sup-

ported by probable cause and exigent circumstances

and that their conduct was lawful. Serious crimes

involving the provision to and consumption of alcohol

by minors were committed in plain view of

Respondents and under the circumstances of the case,

the destruction of evidence was likely. Petitioners

have failed to demonstrate that it was unreasonable,

in light of clearly established law and the circum-

stances of the case, for Respondents to conclude that

their actions were consistent with Petitioners Fourth

Amendment rights.

ARGUMENT

A. Petitioners Have Failed To Establish Sufficient

Grounds For Review Of This Case On Writ Of

Certiorari

A petitioner for writ of certiorari must demonstrate

that there are ‘‘special and important reasons’ why

this Court should review the case. Sup. Ct. R. 10.1.

The Tenth Circuit Court of Appeals determined that

Respondents were entitled to qualified immunity be-

cause the law at the time of the incident did not

clearly establish that the warrantless entry and the

subsequent arrests by Respondents was in violation

of the law. As is demonstrated more fully below, the

authorities relied upon by Petitioners do not support

a conclusion that the Court of Appeals decision is in

error. The Petition for Writ of Certiorari should be

denied because Petitioners have failed to show that

this case involves any of the general considerations

governing review on writ of certiorari outlined in

Supreme Court Rule 10 or that other special reasons

exist to justify review by this Court.

B. Petitioners Failed To Establish That The Conduct

Of Respondents Violated Law Clearly Established At

The Time Of The Incident

An assertion of qualified immunity is properly eval-

uated under the standard enunciated by this Court in

Harlow v. Fitzgerald, 457 U.S. 800, 73 L.Ed. 2d 396,

102 S.Ct. 2727 (1982). In Harlow, this Court held

that government officials performing discretionary

functions are generally shielded from liability for civil

damages insofar as their conduct does not violate

clearly established statutory or constitutional rights

of which a reasonable person would have know. Zd.

at 818, 73 L.Ed. 2d 396, 102 S.Ct. at 2738. Operation

5

of the objective standard established in Harlow de-

pends upon whether the contours of the constitutional

or statutory right are sufficiently clear that a rea-

sonable officer would understand that what he is doing

violates that right; ‘‘in light of pre-existing law the

unlawfulness must be apparent.”’ Anderson v. Creigh-

ton, 483 U.S. 635, 689, 97 L.Ed. 2d 523, 107 S.Ct.

3034, 3039 (1987). The Tenth Circuit Court of Appeals

correctly concluded that the law at the time of the

incident in question did not clearly establish that the

offenses were not sufficiently serious to justify a war-

rantless entry and that an objectively reasonable of-

ficer could have believed that the warrantless entry

was lawful.

Once a defendant asserts qualified immunity, it be-

comes the plaintiff's burden to show that the law was

clearly established. Patrick v. Miller, 953 F.2d 1240,

1243 (10th Cir. 1992). Petitioners failed to meet this

burden by doing precisely what this Court has indi-

cated is insufficient. Petitioners have failed to do more

than identify in the abstract a clearly established right

to be free from a warrantless search of one’s home

which Respondents have violated. See Anderson, 483

U.S. at 640, 97 L.Ed. 2d 523, 107 S.Ct. at 3039.

Petitioners have not shown that at the time of the

incident, it was clearly established that the circum-

stances with which Respondents were confronted did

not constitute probable cause and exigent circum-

stances.

Petitioners seem to rely on this Court’s decision in

Payton v. New York, 445 U.S. 573, 63 L.Ed. 2d 639,

100 S.Ct. 1371 (1980) in support of their position that

the law was clearly established at the time of the

incident. Payton holds “that the Fourth Amendment

tala aia

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prohibits the police from making a warrantless

and non-consensual entry into a suspects home in or-

der to make a routine felony arrest.’’ Jd. at 576, 63

L.Ed. 2d 639, 100 S.Ct. at 1374-75. This Court in

Payton expressly acknowledged that it did not con-

sider the type of exigent circumstances that would

justify a warrantless entry into a home. Jd. at 583,

63 L.Ed. 2d 639, 100 S.Ct. at 1378. Therefore, Payton

did not make clear that the conduct of the

Respondents was a violation of law.

Petitioners rely further on Welsh v. Wisconsin, 466

U.S. 740, 754, 80 L.Ed. 2d 732, 104 S.Ct. 2091 (1984).

As the Tenth Circuit Court of Appeals correctly ob-

served, the Supreme Court held in Welsh v. Wisconsin

that a noncriminal civil forfeiture offense for which

no imprisonment was possible was not a sufficiently

serious offense to justify a warrantless entry even if

probable cause and exigent circumstances existed. The

Tenth Circuit had also held that a misdemeanor pun-

ishable by less than one year’s imprisonment could

be a sufficiently serious offense to justify a warrant-

less home entry in Bledsoe v. Garcia, 742 F.2d 1237,

1241 (10th Cir. 1984). The offenses implicated in this

case, which included destruction of evidence, disor-

derly conduct, the possession by and the provision of

liquor and alcoholic beverages to minors (see NMSA

1978, §§ 30-20-1, 60-7B-1D, 60-7B-1.1F), fell within

the gray area between the situation held to constitute

an unlawful entry and seizure in Welsh and the sit-

uation in Bledsoe which was held to constitute a lawful

warrantless entry. It was, therefore, not legally ap-

parent at the time of the incident in light of clearly

established law that a warrantless entry under the

circumstances of this case was a violation of law.

7

Petitioners mistakenly argue that United States v.

Aquino, 836 F.2d 1268 (10th Cir. 1988), provides a

clear statement of when warrantless entries and

searches are lawful in the Tenth Circuit. In Aquino,

the Tenth Circuit Court of Appeals noted that the

contours of a sufficient emergency to justify a war-

rantless search for evidence remain unclear. J d. at

1271 citing Cooledge v. New Hampshire, 403 U.S. 443,

455, 29 L.Ed. 2d 564, 91 S.Ct. 2022, 2032 (1971).

Aquino established the test in the Tenth Circuit for

warrantless searches where police fear the destruction

of evidence. The court held that an exception to the

warrant requirement under such circumstances should

be:

(1) pursuant to clear evidence of probable cause,

(2) available only for serious crimes and in cir-

cumstances where the destruction of the evidence

is likely, (3) limited in scope to the minimum in-

trusion necessary to prevent the destruction of

evidence, and (4) supported by clearly defined in-

dicators of exigency that are not subject to police

manipulation or abuse.

Id. at 1272. Aquino was decided in the context of a

drug investigation and claimed exigent circumstances.

Aquino did not address other types of ‘‘serious

crimes” which would or would not justify a warrant-

less entry and search. Thus, Aquino provides no fur-

ther guidance to police officers nor does the decision

make it apparent that the crimes of destruction of

evidence, disorderly conduct, possession by and the

provision of liquor and alcoholic beverages to a minor

are not sufficiently serious to justify a warrantless

entry and search.

C. It Was Reasonable For Respondents To Believe That

The Warrantless Entry and Search In This Case Was

Lawful

As noted above, the relevant question where there

is a claim of qualified immunity is whether a reason-

able officer could have believed the warrantless entry

and search to be lawful. Anderson, supra, 482 U.S.

at 641, 97 L.Ed. 2d 523, 107 S.Ct. at 3040. Whether

probable cause and exigent circumstances actually ex-

isted at the time is not the issue. As this Court noted

in Anderson, the Supreme Court has “frequently ob-

served” and “many cases on point amply demon-

strate, the difficulty of determining whether particular

searches or seizures comport with the Fourth Amend-

ment.”’ Anderson, 483 U.S. at 644, 97 L.Ed. 2d 523,

107 S.Ct. 3041. This Court has also recognized that

it is inevitable that law enforcement officials will in

some cases reasonably but mistakenly conclude that

probable cause or exigent circumstances are present

and that in such cases those officials should not be

held personally liable.-Jd. at 641, 97 L.Ed. 2d 523,

107 S.Ct. at 3039-40. Whether a police officer acted

reasonably depends upon the information possessed

by the searching officers at the time of the incident.

Id.

Applying the facts to the law, it was objectively

legally reasonable for the Respondents to conclude

that the warrantless entry and search was supported

by probable cause and exigent circumstances and, as

demonstrated above, it was not clearly established

that the offenses involved were not sufficiently se-

rious to justify a warrantless entry and search. Prob-

able cause exists when known facts and circumstances

are sufficient to warrant a prudent, cautious and

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trained police officer to believe that a serious crime

has been, or is being, committed. United States v.

Chavez, 812 F.2d 1295 (10th Cir. 1987), citing United

States v. McEachin, 670 F.2d 1139, 1142 (D.C. Cir.

1981); United States v. Lopez, 777 F.2d 543 (10th Cir.

1985); United States v. Herring, 582 F.2d 535 (10th

Cir. 1978). It is undisputed that Respondents arrived

at the Stege residence in response to a call that a

loud party was in progress and that they heard yelling

when they arrived on the scene. From the front door

of the residence Respondents could see, in plain view,

through a window, that minors were consuming al-

cohol. Inspecting objects which come into plain view

lawfully is not a search. United States v. Jimenez,

864 F.2d 686 (10th Cir. 1988). Respondents knocked

on the door, heard someone shout “cops” and heard

footsteps running toward the back of the house and

upstairs.

Respondents could see, in. plain view, evidence that

serious offenses involving the provision to and con-

sumption of alcohol by minors were being committed.

The destruction of evidence was likely because sus-

pects and potential witnesses were fleeing. The in--

trusion was limited to that necessary to locate the

minors and witnesses hiding, concealing, and/or de-

stroying evidence in the house. It was reasonable for

Respondents to believe that exigent circumstances ex-

‘sted because a prudent, cautious and trained officer

would believe that prompt action was necessary to

prevent escape of suspects and witnesses and destruc-

tion of evidence.

In Aquino case, probable cause to search Aquino’s

home existed despite the fact that the police were

not certain that the cocaine in question came from

10

Aquino. The police followed one suspect to the home

of another who then traveled to and from Aquino’s

home. Consequently,

the facts and circumstances within their . . .

knowledge and of which they had reasonably

trustworthy information [were] sufficient in

themselves to warrant a man of reasonable

caution in the belief that [the cocaine was

located in Aquino’s home].

United States v. Aquino, 836 F.2d at 1272-73, citing

Dunaway v. New York, 442 U.S. 200, 208, n. 9; 99

S.Ct. 2248, 2254, n. 9 (1979). In Aquino, the police

had probable cause despite their lack of certainty. In

this case, Respondents were certain, based upon their

non-intrusive observations and actual knowledge of

the ages of the minor consuming alcohol, that a se-

rious crime was being committed.

In United States v. Chavez, 812 F.2d 1295 (10th

Cir. 1987), both probable cause and exigent circum-

stances existed so as to justify a warrantless search,

seizure and arrest. The police were justified in be-

lieving that “buy money” and illegal drugs were lo-

cated at the premises they searched based upon their

surveillance. Even more so in the case at bar,

Respondents actually saw the crime being committed.

Exigent circumstances existed in Chavez because the

police reasonably believed that the drugs and money

would be concealed or destroyed. Likewise, in this

case, Respondents, who heard someone shout “cop”

and then heard running feet, could reasonably con-

clude that suspects were fleeing and/or destroying

evidence.

11

In United States v. Lopez, 777 F.2d 543 (10th Cir.

1985), the officers, smelling a substance associated

with transporting cocaine and observing the curious

way in which the speakers were mounted in an au-

tomobile, had sufficient probable cause to search with-

out a warrant. In the case at bar, the officers actually

observed the crime being committed. In United States

v. Herring, 582 F.2d 535 (10th Cir. 1978), the officer,

smelling marijuana, observing the vehicle in which it

was carried speeding and observing the flight of the

suspects, had sufficient probable cause to justify stop-

ping the vehicle and arresting the occupants.

This Court has held that law enforcement officers

whose judgments in making the difficult determina-

tion of whether a particular search and seizure com-

ports with the Fourth Amendment are objectively

reasonable should be granted qualified immunity from

personal liability. See Anderson, 483 U.S. at 644, 97

L.Ed. 2d 523, 107 S.Ct. at 3041. Qualified immunity

protects “‘all but the plainly incompetent or those who

knowingly violate the law.” Malley v. Briggs, 475 USS.

335, 344-345, 89 L.Ed.2d 271, 106 S.Ct. 1092, 1098

(1986). Respondents have failed to show that

Respondents knowingly violated the law in this case

or that Respondents’ determination that the war-

rantless entry and search was lawful was unreason-

able. This case is, therefore, unsuitable for review by

this Court on a writ of certiorari and Petitioners

Petition for Writ of Certiorari should be denied.

CONCLUSION

The Tenth Circuit correctly found that the law at

the time of the incident did not clearly establish that

the offenses being committed by Petitioners in the

12

presence of Respondents were insufficiently serious

to justify the warrantless entry and search based upon

probable cause and exigent circumstances. The

Petitioners bore the burden below of establishing that

Respondents’ alleged conduct violated law clearly

proscribing their actions. Petitioners failed to estab-

lish that Respondents’ alleged conduct violated law

clearly established at the time of the incident. At the

time of the incident, probable cause and clear indi-

cators of exigent circumstances existed and an ob-

jectively reasonable officer could have believed that

the warrantless entry and search was lawful.

Respondents are, therefore, entitled to qualified im-

munity and Petitioners’ Writ of Certiorari should be

denied.

Respectfully submitted,

JOHN K. SILVER

Counsel of Record for Respondents

JERE K. SMITH

CAMERON PETERS

McCCLAUGHERTY, SILVER & DOWNES, P.C.

Post Office Box 8680

Santa Fe, New Mexico 87504-8680

(505) 988-8804

APPENDIX

la

APPENDIX

UNITED STATES DISTRICT COURT

DISTRICT OF NEW MEXICO

CIVIL NO. 91-1087SC

JASON STEGE and JUSTIN STEGE,

Plaintiffs,

vs.

C. JOSEPH GIRARD and MITCHELL B. TRIMMER,

Defendants.

AFFIDAVIT OF MITCHELL B. TRIMMER

I, Mitchell B. Trimmer, having been first duly sworn

and upon oath state as follows:

1. On June 29, 1991, I served as and am presently a

member of the Police Department of the City of Los Ala-

mos, State of New Mexico. This affidavit is directed to

occurrences of that date.

2. At approximately 11:43 p.m., a female citizen called

the Los Alamos Police Department to report a loud party

at the 3200 block of Walnut Street. Lieutenant Girard,

Detective Mazuranich, Officer Corcoran and I responded

to the area. I was the first officer to arrive at the area

and I heard several people yelling profanities or obscenities

loudly inside 3272-A Walnut. The other officers arrived

and we approached the residence. Officer Corcoran and

Detective Mazuranich went to the rear of the house and

Lieutenant Girard and I went to the front door.

3. I looked in the window of the front door and observed

an individual later identified as David Danforth who I knew

to be under the age of 21 years old. He was holding a

can of Miller Genuine Draft beer in his hand and I ob-

2a

served him open the can. I also observed Eric Hall sitting

on the couch in the living room playing cards. There were

several open beer containers in front of Eric Hall on the

table he was playing on. I knew Eric Hall was under the

, age of 21.

4. When I knocked on the door of the house someone

looked through the window in the door and yelled “‘cops.”’

Everyone in the house began running either upstairs or

out the back door. Another individual later identified as

Jason Stege looked through the window in the door. I

identified myself as a police officer and ordered him to

open the door.

5. After a short period of time, Jason Stege opened the

door part way and blocked the entrance with his body. I

informed Mr. Stege that I had observed minors in pos-

session of alcohol in the residence and told him to move

away from the door so that we could come in. He told us

we could not enter the house so Lieutenant Girard and I

both told him that we were coming in and told him to

move. Lieutenant Girard and I had to push the door open

as Mr. Stege continued to try and force the door closed.

As I entered the house I placed Jason Stege under arrest

for resisting an officer.

6. I was informed by Jason Stege that this was his

house. I identified another individual in the living room as

Justin Stege. He told me he also lived in this house and

that the house belonged to their mother who was out for

the evening. I then placed Justin Stege under arrest for

buying, selling or giving alcohol to minors.

7. After rounding up all the people at the party I was

unable to find David Danforth. I went upstairs to look for

him and found him in a closet in one of the bedrooms,

concealed behind a large pile of clothes.

8. Due to the overwhelming evidence, a hundred or so

containers of beer, Lieutenant Girard and I decided to

3a

arrest all present for the offense of minor in possession

of alcohol.

9. Due to extenuating circumstances involving numerous

priority calls, all individuals were released from the resi-

dence after giving their names, date of birth, and address

and phone numbers to an officer. All were released with

the understanding that they would be summoned to court

or contacted later for referral or criminal citation.

10. Lieutenant Girard and I picked up approximately 70

opened cans and bottles of beer, most of which had some

quantity of alcohol in them. These were stored in two

coolers that were in the living of the residence. The evi-

dence was transported to the police department.

11. Jason and Justin Stege were transported to the Los

Alamos Police Department jail and booked.

12. In entering the Stege residence without a warrant

I was carrying out my duties as a law enforcement officer

utilizing my own discretion in carrying out my duties. I

believe I was acting within the law in entering the resi-

dence without a warrant based on the facts and circum-

stances stated above.

FURTHER AFFIANT SAYETH NAUGHT.

/s/ Mitchell B. Trimmer

MITCHELL B. TRIMMER

STATE OF NEW MEXICO )

) ss.

COUNTY OF SANTA FE )

The foregoing Affidavit of Mitchell B. Trimmer was ac-

knowledged before me this 13 day of February, 1992, by

Mitchell B. Trimmer.

/s/ John S. Silver

NOTARY PUBLIC

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UNITED STATES DISTRICT COURT

DISTRICT OF NEW MEXICO

CIVIL NO. 91-1087SC

JASON STEGE and JUSTIN STEGE,

Plaintiffs,

vs.

C. JOSEPH GIRARD and MITCHELL B. TRIMMER,

Defendants.

AFFIDAVIT OF C. JOSEPH GIRARD

I, C. Joseph Girard, having been first duly sworn and

upon oath state as follows:

1. On June 29, 1991, I served as a police officer of the

City of Los Alamos, State of New Mexico. This affidavit

is directed to occurrences of that date.

2. At approximately 11:43 p.m., I responded to the 3200

block of Walnut Street in Los Alamos, New Mexico on a

report of a loud party in progress. Corporal Trimmer ad-

vised me by radio that he had located a party at 3272-A

Walnut. Approaching the residence on foot, I could hear

loud talking obviously coming from young voices and music

coming from the open windows. After arrival I observed

a large number of automobiles parked in front of the res-

idence in question. After verifying the disorderly conduct,

my intention was to request the inhabitants of the Stege

residence to cease and desist the breach of the peace.

Corporal Trimmer went to the front door and a moment

later advised that he could see an individual, who he rec-

ognized to be a minor, with a can of beer in his hand.

3. I felt at this point it was appropriate to have Cor-

poral Trimmer knock on the door and attempt to enter

6a

the residence as I felt a number of serious crimes were

being committed including the offenses of disorderly con-

duct, minor in possession of alcohol, tampering with evi-

dence, and giving alcohol to a minor.

4. After Corporai Trimmer knocked on the door there

was a shout of “cops” from inside and many footsteps

could be heard running toward the back of the house and

other footsteps going up the stairway. In my opinion at

this time, it was important that we enter this residence

immediately as it was apparent that evidence was being

destroyed and that there was a possibility that the people

attending the party would attempt to leave the residence

to avoid the police officers who were present. If this were

to happen, that would mean the potential for a humber

of minors who had been drinking intoxicating liquors to

be driving on the streets of Los Alamos. Based on prior

experience and training, when I heard running in the res-

idence, I believed that the persons fleeing may be arming

themselves with weapons and feared for the safety of my

officers if I did not take immediate action.

5. Corporal Trimmer knocked two or three more times

and the door was finally opened by Jason Stege. Mr. Stege

was informed that a minor had been observed drinking

and that the police officers were coming in. Mr. Stege

refused to step aside and it was necessary to forcibly move

him back from the door. He was placed under arrest by

Corporal Trimmer. Two other police officers, Corcoran and

Mazuranich, had gone around the back door at the sound

of running feet and they had controlled a number of kids

in the back yard. Almost everyone visible in the residence

appeared to be a minor or juvenile. There were open beer

cans and bottles scattered everywhere in the residence. {

went upstairs and found approximately 10 to 12 more kids

hiding in the bathroom and bedroom closets.

6. After entering the residence and considering the cir-

cumstances I considered that contributing to the delin-

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quency of minors might be an appropriate charge against

the Stege brothers.

7. After organizing the people at the party, it appeared

that we were dealing with approximately 25 individuals.

The two Stege brothers were taken into custody and trans-

ported to the station.

8. Corporal Trimmer and I picked up most of the beer

containers in the residence. Most had some quantity of

beer in them and they weve dumped in the sink. I could

see beer containers in the back porch and a trash can on

the back porch was half full of beer containers.

9. In instructing my officers to enter the Stege resi-

dence I was carrying on my duties as a law enforcement

officer using my own discretion in carrying out my duties.

I believe I was acting within the law and could enter the

residence without a warrant based on the circumstances.

which I described herein. I believe that I had probable

cause to believe a serious crime was being committed at

the Stege residence and that the circumstances which I

described above would legally allow me to enter the res-

idence without a warrant.

FURTHER AFFIANT SAYETH NAUGHT.

/s/ C. Joseph Girard

C. JOSEPH GIRARD

STATE OF NEW MEXICO )

)

COUNTY OF SANTA FE }

The foregoing Affidavit of C. Joseph Girard was ac-

knowledged before me this 9 day of October, 1992, by C.

Joseph Girard.

SS.

eeeeeeeveeene

NOTARY PUBLIC

My commission expires:

12/26/96