Case 2:13-cv-01087-SMV-LAM Document 1 Filed 11/08/13 Page 1 of 17

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO TIMOTHY YOUNG, Plaintiff, v. HIDALGO COUNTY; HIDALGO COUNTY SHERIFF OFFICERS PATRICK GREEN, JAVIER PERU, and DAVID ARREDONDO Defendants. COMPLAINT TO RECOVER DAMAGES FOR DEPRIVATION OF CIVIL RIGHTS AND PERSONAL INJURY JURISDICTION AND VENUE Plaintiff brings this complaint under 42 U.S.C. Section 1983 for damages resulting from the Deprivation of Civil Rights inflicted upon Plaintiff by Defendants. The court has jurisdiction of this action (28 U.S.C. Sec. 1343) and of the parties. Venue is proper in this judicial district as the incident complained of occurred in this district. Plaintiff alleges as follows: CV 1:13-01087

PARTIES
1. Timothy Young is an individual who is a resident of Hidalgo County, State of New

Mexico. 2. 3. Defendant Hidalgo County is a county in the State of New Mexico. Defendant Arredondo is a law enforcement officer for the Hidalgo County Sheriffs

Department. Defendant was acting under color of state law and in the course and scope of his employment as a law enforcement officer with the Hidalgo County Sheriffs Department at all times material. 4. Defendant Green is a law enforcement officer for the Hidalgo County Sheriffs 1

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Department. Defendant was acting under color of state law and in the course and scope of his employment as a law enforcement officer with the Hidalgo County Sheriffs Department at all times material. 5. Defendant Peru is a law enforcement officer for the Hidalgo County Sheriffs

Department. Defendant was acting under color of state law and in the course and scope of his employment as a law enforcement officer with the Hidalgo County Sheriffs Department at all times material. FACTUAL BACKGROUND October 13, 2012 Traffic Stop: 6. On October 13, 2012 at or around 9:42 P.M. Plaintiff pulled into a gas station located on

East Motel Dr. and Old highway 70 in Lordsburg, NM and exited his vehicle to begin pumping gas. 7. Defendant Peru pulled up behind Plaintiff with several other police vehicles as back up

and initiated a pre-textual traffic stop against Plaintiff falsely asserting that Plaintiff failed to use a turn signal. 8. Defendant Peru noted that Plaintiff was nervous and alleged that Plaintiff's hands and

legs were shaking. 9. 10. 11. 12. Defendant Peru issued Plaintiff a written warning for the traffic violation. Defendant Peru began to interrogate Plaintiff about his activities of the day. Defendant Peru asked Plaintiff about tires that were in the bed of his truck. Defendant Peru began to question the passenger of the vehicle and also asked him about

the tires. 13. Plaintiffs passenger had an open container in the vehicle.

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14.

Defendant Peru asked Plaintiff if he could search Plaintiffs vehicle based on the

nervousness and open container. 15. Defendant Peru told Plaintiff that if he did not consent to a search that he would be

detained longer, and the officers would seek a warrant. 16. Plaintiff consented to a quick search so that he could be on his way sooner as it was

already late in the evening. 17. Defendant Peru alleged in his police report that he believed Plaintiff was under the

influence of narcotics because he was allegedly jittery, licked his lips, and took off his hat and put it back on. 18. Defendant Peru alleged in his police report that he reported the stated information to

Defendant Arrendondo and asked for a K9 unit to be sent to search Plaintiffs vehicle. 19. Defendant Arrendondo contacted Defendant Green to deploy his K9 partner Leo to the

scene of the traffic stop. 20. 21. 22. Defendant Green arrived to the scene of the traffic stop at or around 10:30 P.M. Leo entered Plaintiffs vehicle during the sniff search. Leo allegedly alerted to the presence of narcotics in the center of the drivers seat, the

center console, and the left open door of the vehicle. 23. Defendant officers conducted several searches of Plaintiffs vehicle at the scene of the

traffic stop, but failed to find any contraband. 24. At or around 11:00 PM Plaintiff withdrew his consent to the search and asked Defendant

officers if he could go. 25. Defendant officers denied Plaintiffs request and continued searching his vehicle without

a warrant.

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26.

Defendant Green knew that "Leo" and himself were not qualified to conduct K-9 searches

for narcotics, or at least Defendant Green was on notice that Leo had been unreliable. 27. 28. "Leo" was born on January 28, 2010. "Leo" was allegedly certified by the State of New Mexico Corrections Department on

April 27, 2011. 29. However, the New Mexico Department of Corrections have no record of the K-9 officer

or "Leo" ever being trained by them. 30. If "Leo" was certified by the New Mexico Department of Corrections, the certification

expired on April 27, 2012. 31. matter. 32. "Leo", whom Defendant Green relied upon for probable cause, was not certified on On September 6, 2012, Leo falsely alerted to the presence of narcotics on another

October 13, 2012, or was otherwise unreliable due to his previous false alert during a traffic stop. 33. Defendant Green told Defendant Peru that when Leo altered to the presence of

narcotics on the drivers seat, it indicated that the driver may have narcotics inside his clothing or in a body cavity. 34. Defendants asked Plaintiff if he would consent to a search of his person. Defendants told

Plaintiff that if he did not consent, he would be taken into custody while they sought a warrant. 35. 36. 37. Plaintiff consented under coercion. Defendant Arredondo frisked Plaintiff searching for drugs and found none. Defendant Arrendondo then notified Plaintiff that he wanted to conduct a more thorough

search of his underclothing. 38. Defendant Arrendondo's request made Plaintiff extremely uncomfortable.

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39.

Defendant Arrendondo informed Plaintiff that he was not gay and did not enjoy these

types of searches. 40. 41. Plaintiff informed Defendant Arrendondo that he was uncomfortable with the search. In an effort to make Plaintiff more "comfortable," Defendant Arrendondo offered to take

Plaintiff into the bathroom stall of the gas station for more privacy. 42. 43. 44. Plaintiff refused to go to the bathroom stall with Defendant Arrendondo. Defendant Arrendondo conducted the strip search in the parking lot of the gas station. Defendant Arrendondo conducted a thorough pat down of Plaintiff's legs, crotch and

upper torso. 45. Defendant Arrendondo then ordered Plaintiff to pull his pants down so Defendant

Arrendondo could look inside his pants. 46. Plaintiff dropped his pants to his knees and shook his underwear while Defendant

Arrendondo was looking into his pants. 47. 48. Defendant Arrendondo forced Plaintiff to lift his shirt and drop his pants to his knees. Defendant Arrendondo forced Plaintiff to drop his underwear to his knees, exposing his

genetalia in the parking lot. Defendant Arrendondo ordered Plaintiff to turn and expose his undressed backside to Defendant, to which Plaintiff refused. 49. Defendant Green told Plaintiff that it was generally common for drug couriers to conceal

drugs in their body cavities. 50. 51. 52. Defendant Green approached Plaintiff and said Is it in your ass? Defendant Greens comment greatly alarmed Plaintiff. Plaintiff immediately informed Defendant officers that he wanted to leave and that

Defendant Greens comment was inappropriate.

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53.

Defendant Green asked Plaintiff if he would consent to an X-Ray, which Plaintiff

declined. 54. 55. Defendant officers then took Plaintiff to the ground and handcuffed him. Defendant officers impounded Plaintiffs vehicle to be searched again despite already

searching the vehicle at the traffic stop, and despite the absence of a warrant. 56. 57. 58. 2012. 59. The warrant did not specify where Plaintiff was to be searched or how Plaintiff was to be Defendant officers took Plaintiff to a police station. Defendant Green applied for a warrant. The warrant purports to have been electronically signed at 1:45 A.M. on October 14,

searched. The warrant merely stated that it authorized the search of Plaintiff's person. 60. While waiting for the warrant, Defendant officers periodically laughed at the predicament

of Plaintiff. 61. Upon receiving the warrant, Plaintiff asked Defendant officers what was going on, and

where he was being taken. 62. 63. 64. Defendant officers laughed at Plaintiff and told him, You will see. Defendant officers transported Plaintiff to Gila Medical Center. Plaintiff was escorted into an exam room by Defendant officers at or around 2:58 A.M.

on October 14, 2012. 65. 66. 67. 68. Plaintiff was given an X-ray. The X-ray showed the absence of any foreign objects. Plaintiff was then laid on the hospital bed surrounded by Defendant officers. Dr. Bryant Beesley conducted a digital search of Plaintiffs anus, but found only stool at

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or around 3:23 A.M. 69. 70. No drugs were ever found on, or in, Plaintiff or his vehicle. Plaintiff was discharged and released from custody at or around 4:28 A.M. on October

14, 2012. 71. Gila Medical Center billed Plaintiff for over $600.00 for its services. COUNT I: UNREASONABLE SEARCH AND SEIZURE (October 13, 2012 TRAFFIC STOP) (Defendants Peru, Green and Arrendondo) The Plaintiff incorporates the preceding paragraphs by reference herein. 72. 73. The traffic stop at its inception was pretextual. Plaintiff did not fail to use his turn signal, or in the alternative, Defendant Peru had no

reasonable basis to believe that Plaintiff had failed to use his turn signal. 74. The initiation of the traffic stop was wrongful, and was a seizure under the Fourth

Amendment. 75. 76. Defendant officers acts were objectively unreasonable. Defendant officers acts violated Plaintiffs Fourth Amendment rights to be secure in his

person from unreasonable seizures. 77. 78. Defendant officers deprivation of Plaintiffs rights caused Plaintiff damages. Defendant officers acted willfully, knowingly and purposefully and/or with deliberate

indifference to deprive Plaintiff of his Constitutional Rights. As a result of the nature of Defendants conduct, Plaintiff is entitled to recover punitive damages against the individual Defendants. COUNT II: UNREASONABLE SEARCH AND SEIZURE (October 13, 2012 EXCEEDED THE SCOPE OF A TRAFFIC STOP) (Defendants Peru, Green and Arrendondo) The Plaintiff incorporates the preceding paragraphs by reference herein. 7

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79. 80.

Defendant officers stopped Plaintiff for an allegation of a routine traffic violation. Defendant officers lacked probable cause to detain and interrogate Plaintiff after Plaintiff

was issued a written warning for the traffic violation. 81. Defendant officers exceeded the scope of a traffic stop without reasonable suspicion that

Plaintiff was engaging in criminal activity. 82. Defendant officers lacked probable cause to detain Plaintiff during the traffic stop, or in

the alternative, Defendant officers detained Plaintiff for an unreasonable amount of time. 83. 84. 85. 86. 87. Defendant officers lacked probable cause to seize and search Plaintiffs vehicle. Plaintiffs original consent to the search of his vehicle was given under coercion. Defendant officers unlawfully searched Plaintiffs vehicle. Plaintiffs consent to the public strip search was given under coercion. Defendant officers unlawfully strip searched and thoroughly patted Plaintiffs person,

including his crotch, in the parking lot. 88. 89. Defendant officers acts were objectively unreasonable. Defendant officers acts violated Plaintiffs Fourth Amendment rights to be secure in his

person from unreasonable search and seizures. 90. 91. Defendant officers deprivation of Plaintiffs rights caused Plaintiff damages. Defendant officers acted willfully, knowingly and purposefully and/or with deliberate

indifference to deprive Plaintiff of his Constitutional Rights. As a result of the nature of Defendants conduct, Plaintiff is entitled to recover punitive damages against the individual Defendants. COUNT III UNREASONABLE SEARCH AND SEIZURE (October 13, 2012 TRAFFIC STOP RE: ARREST) (Defendants Peru, Green and Arrendondo) The Plaintiff incorporates the preceding paragraphs by reference herein. 8

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92.

As a result of the routine traffic stop, Defendant officers held Plaintiff in custody from

about 9:42 P.M. until 4:28 A.M. 93. Defendant officers detained Plaintiff for such an unreasonable amount of time that

Defendant officers constructively placed Plaintiff under arrest. 94. Defendant officers use of handcuffs and transportation to the police station of Plaintiff

constructively placed Plaintiff under arrest. 95. 96. 97. Defendant officers lacked probable cause to arrest Plaintiff. Defendant officers did not obtain a warrant to arrest Plaintiff. Defendant officers deprived Plaintiff of his Fourth Amendment rights to be secure in his

person by arresting him. 98. The arrest of Plaintiff was wrongful, without probable cause and deprived Plaintiff of his

Fourth Amendment right to be free of unreasonable seizures. 99. The actions of Defendant officers proximately caused damages to Plaintiff in loss of

liberty, embarrassment, humiliation, pain and suffering and mental and emotional distress. 100. Defendant officers acted willfully, knowingly and purposefully and/or with deliberate

indifference to deprive the Plaintiff of his Constitutional Rights. As a result of the nature of Defendants conduct, Plaintiff is entitled to recover punitive damages against the individual Defendants. COUNT IV UNREASONABLE SEARCH AND SEIZURE (October 13, 2012 TRAFFIC STOP RE: WARRANT) (Defendants Peru, Green and Arrendondo) The Plaintiff incorporates the preceding paragraphs by reference herein. 101. Defendant officers knew, or should have known, that the warrant to search Plaintiff was

facially invalid due to the lack of probable cause, its lack of specific description of the area to be

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searched, and its lack of a specific description of procedures to be used. 102. ray. 103. Defendants knew, or should have known, that the warrant did not authorize a physical Defendant officers knew, or should have known, that the warrant did not authorize an x-

body cavity search. 104. Defendant officers knew, or should have known, that to execute the warrant, Plaintiff

would have to be placed under arrest, rather than kept in mere detention. 105. Defendant officers knew, or should have known, that but for the arrest, the warrant would

be impossible to execute. 106. Defendant officers knew, or should have known, that Defendant officers lacked probable

cause to arrest Plaintiff and that the warrant failed to approve any such arrest. The totality of the facts alleged in the warrant, even if true, do not constitute probable cause to believe Plaintiff had hidden drugs on his person or in particular in his anal cavity. 107. Because the warrant could not be executed without an arrest, and because Defendant

officers lacked the authority to arrest Plaintiff, the execution of the search warrant was wrongful, without probable cause and deprived Plaintiff of his Fourth Amendment right to be free of unreasonable seizures. 108. Defendant officers knew, or should have known, that the warrant was invalid because the

circumstances that lead to the warrant were in violation of Plaintiffs constitutional rights, namely the illegal detention and search of Plaintiff and his vehicle in the gas station. 109. Defendant officers knew, or should have known, that any warrant which is the product of

such gross violation of an individuals civil liberties would be facially invalid. 110. The factual support for any probable cause showing is so lacking that no reasonable

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police officer would believe that probable cause existed for the warrant, especially when Defendants had already searched Plaintiff and his vehicle and found nothing. 111. Defendant officers knew, or should have known, that circumstances leading up to

Defendant Greens affidavit were insufficient to justify the requisite probable cause required by a warrant, which made the warrant invalid. 112. Defendant officers knew, or should have known, that a physical body cavity search is a

search so invasive as to require specificity in warrant including the method in which the search will be conducted. 113. Defendant officers knew, or should have known, that if an individual allegedly being

nervous or jittery is insufficient to support an anal cavity search, particularly when the officer is conducting a routine traffic stop and when several unlawful searches have been fruitless. 114. Defendant officers knew, or should have known, that the aforementioned circumstances

are insufficient to support a general warrant to search a person, and specifically a search of a persons anal cavity. 115. Defendant officers knew, or should have known, that a general warrant to search a person

is insufficient to conduct an anal cavity search and that the subsequent anal cavity search was outside the scope of the warrant. 116. Defendant officers knew, or should have known that a warrant to search a persons anal

cavity should include the authorized medical procedures to be performed in order to be valid. The search warrant affidavit is so vague on its face and lacking in specificity that it amounted to a prohibited general search warrant of Plaintiffs body. The language used in the affidavit for the search is unclear whether the authorized search is limited to a search of Plaintiffs clothes, or

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extends to a search of other parts of the body. 117. The execution of the search warrant regarding Plaintiff was wrongful, without probable

cause and deprived Plaintiff of his Fourth Amendment right to be free of unreasonable seizures. 118. The actions of Defendants proximately caused damages to Plaintiff in loss of liberty,

embarrassment, humiliation, pain and suffering and mental and emotional distress. 119. Defendants acted willfully, knowingly and purposefully and/or with deliberate

indifference to deprive the Plaintiff of his Constitutional Rights. As a result of the nature of Defendants conduct, Plaintiff is entitled to recover punitive damages against the individual Defendants. COUNT V UNREASONABLE SEARCH AND SEIZURE (October 13, 2012 TRAFFIC STOP RE: LEO) (Defendants Hidalgo County and Green) The Plaintiff incorporates the preceding paragraphs by reference herein. 120. Defendant Green knew, or should have known, that "Leo" and himself were unqualified

to conduct K-9 narcotic searches, or at the least was on notice that Leo was unreliable. 121. Neither the K-9 Unit "Leo" nor Defendant Green were adequately trained or certified to

be a drug K-9 unit. 122. K-9 unit, "Leo" was too young to be a narcotics K-9 at the time "Leo" is alleged to have

been trained. 123. 124. Defendant Green knew that Leo had falsely alerted to a vehicle on September 6, 2012. Defendant Green was unreasonable when he relied on Leos alert on October 13, 2012

regarding Plaintiffs vehicle. 125. Defendant Green was unreasonable when he relied on Leos alert to obtain a warrant

for Plaintiffs body. 126. Defendant Green was unreasonable when he believed Leos alert to a seat in Plaintiffs 12

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vehicle supported a finding of probable cause that Plaintiff had hidden drugs in his anus. 127. Defendant Green knew, or should have known, that Leo was unreliable and should not

have been used in the field. 128. The actions of Defendant proximately caused damages to Plaintiff in loss of liberty,

embarrassment, humiliation, pain and suffering and mental and emotional distress. 129. Defendant acted willfully, knowingly and purposefully and/or with deliberate

indifference to deprive the Plaintiff of his Constitutional Rights. As a result of the nature of Defendants conduct, Plaintiff is entitled to recover punitive damages against the individual Defendant. COUNT VI UNREASONABLE SEARCH AND SEIZURE (October 13, 2012 X-RAY) (Defendants Peru, Green and Arrendondo) The Plaintiff incorporates the preceding paragraphs by reference herein. 130. Defendants were acting under the color of state law when they wrongfully and without

probable cause, X-rayed Plaintiff. 131. Defendants acted outside the scope of the warrant when they x-rayed Plaintiff for

Defendants did not reasonably rely on the validity of the search warrant to justify the search. 132 133. 134. Defendants lacked probable cause to search Plaintiff with an X-ray. Defendants acts were objectively unreasonable. Defendants acts violated Plaintiffs Fourth Amendment rights to be secure in his person

from unreasonable search and seizures. 135. 136. Defendants deprivation of Plaintiffs rights caused Plaintiff damages. Defendants acted willfully, knowingly and purposefully and/or with deliberate

indifference to deprive Plaintiff of his Constitutional Rights. As a result of the nature of

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Defendants conduct, Plaintiff is entitled to recover punitive damages against the individual Defendants. COUNT VII UNREASONABLE SEARCH AND SEIZURE (October 13, 2012 TRAFFIC STOP RE: DIGITAL PENETRATION) (Defendants Hidalgo County, Peru, Green Arrendondo,) The Plaintiff incorporates the preceding paragraphs by reference herein. 137. Defendants were acting under the color of state law when they, wrongfully and without

probable cause, forced Plaintiffs anus to be physically penetrated in order to conduct a search. 138. Defendants did not reasonably rely on the validity of the search warrant to justify the

body cavity search. 139. 140. The anal cavity search was outside the scope of the warrant. Even if the warrant were valid, which Plaintiff denies, the warrant was satisfied after the

X-ray showed Plaintiff did not have any contraband in his body and Defendants were not authorized to conduct a second highly invasive search. 141. 142. Defendants acts were objectively unreasonable. Defendants acts violated Plaintiffs Fourth Amendment rights to be secure in his person

from unreasonable search and seizures. 143. 144. Defendants deprivation of Plaintiffs rights caused Plaintiff damages. Defendants acted willfully, knowingly and purposefully and/or with deliberate

indifference to deprive Plaintiff of his Constitutional Rights. As a result of the nature of Defendants conduct, Plaintiff is entitled to recover punitive damages against the individual Defendants. COUNT VIII VIOLATION OF DUE PROCESS (Defendants Hidalgo County, Peru, Green Arrendondo,) The Plaintiff incorporates the preceding paragraphs by reference herein. 14

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145.

Plaintiff had a fourteenth amendment interest in his bodily integrity and to be free of

liberty deprivations that were arbitrary and lacking any governmental interest. 146. 147. 148. Defendants digital penetration in to Plaintiffs anus served no governmental purpose. Defendants raped Plaintiff and their conduct shocks the conscience. There is a direct cause between Defendants unconstitutional actions and Plaintiffs

injuries. Defendants actions were willful, wanton, obdurate, and in gross and reckless disregard of Plaintiffs constitutional rights. COUNT IX MUNICIPAL LIABILITY (Defendants Hidalgo County) The Plaintiff incorporates the preceding paragraphs by reference herein. 149. In practice, Hidalgo County has used its peace officers to bully, harass and deprive

private citizens of their civil liberties. 150. The peace officers from each municipality have worked together and within each agency

to promote this environment. 151. The municipal Defendants used their peace officers to interfere with Plaintiffs property

interest and his liberty interest which entitles Plaintiff the right exclude persons from penetrating his body. 152. The municipal Defendants have allowed a policy and procedure which authorizes law

enforcement agents to utilize and rely on unqualified and unreliable K-9 units when conducting searches which lead to the deprivation of civil rights. 153. The municipal Defendants have allowed a policy and procedure which authorizes law

enforcement officers to use a K-9 unit's alleged alert to a vehicle as probable cause to search the driver's anal cavity, in violation of civil rights. 154. Defendants conduct, either in their individual acts or contribution to this abusive 15

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environment, caused Plaintiff to be raped under the color of law grossly depriving him of fundamental liberty interests. 155. The Defendants have ignored procedural and substantive Due Process requirements in an

unlawful campaign to harass, punish and bully private citizens who they suspect of minor criminal activities despite a laughable absence of probable cause and evidence. 156. The municipal Defendants have trained their officers and have implemented a policy of

transforming ordinary traffic stops into invasive searches and seizures, flouting constitutional requirements related to private property and liberty interests. 157. Defendants actions intentionally and willfully deprived Plaintiff of his property interests

and Plaintiffs liberty interests without due process of law and without recourse for the arbitrary, abusive, harassing and criminal conduct of Defendants. 158. 159. Defendants actions proximately caused damages to Plaintiff as previously alleged. Defendants acted willfully, knowingly and/or purposefully, and with deliberate

indifference to deprive Plaintiff of his constitutional rights. Due to the nature of Defendants conduct, Plaintiff is entitled to recover punitive damages against the individual Defendants. JURY DEMAND 160. Plaintiff hereby demands trial by jury. REQUEST FOR RELIEF Plaintiff incorporates the preceding paragraphs by reference herein. WHEREFORE, Plaintiff seeks the following relief: I. II. Actual and compensatory damages sufficient to make him whole. Punitive damages against Defendants sufficient to punish them and to deter further wrongdoing;

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III.

Attorneys fees, litigation expenses, costs, pre- and post-judgment interest as provided by law; and

IV.

Such other and further relief as the Court deems just and proper.

Respectfully submitted, /s/ Joseph P. Kennedy KENNEDY LAW FIRM Shannon L. Kennedy Joseph P. Kennedy Theresa V. Hacsi Attorneys for Plaintiff 1000 Second Street NW Albuquerque, New Mexico 87102 (505) 244-1400 fax (505) 244-1406

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