UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

JOSE VALENCIA,

Plaintiff - Appellant,

v.

OFFICER HEINZ DE LUCA; OFFICER 

SEAN STRAHON; OFFICER CASEY 

SALAZAR; OFFICER MARK 

LEWANDOWSKI; OFFICER ALAN 

MASCARENAS, individually and in 

their official capacities and as employees 

of the Santa Fe Police Department; CITY 

OF SANTA FE,

Defendants - Appellees.

No. 14-2171

(D.C. No. 1:13-CV-00930-JAP-WPL)

(D. N.M.)

ORDER AND JUDGMENT*

Before BRISCOE, Chief Judge, McKAY and PHILLIPS, Circuit Judges.

Jose Valencia, appearing pro se, appeals the district court’s entry of summary 

judgment in favor of defendants on claims arising out of a traffic stop and his arrest. 

 * After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist the determination of this 

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

FILED

United States Court of Appeals

Tenth Circuit

June 2, 2015

Elisabeth A. Shumaker

Clerk of Court

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Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the district court’s 

thorough and detailed Memorandum Order and Opinion.

I. STANDARDS OF REVIEW

Most of the traffic stop and arrest was recorded by the in-unit cameras of the 

individual defendants, police officers of the Santa Fe, New Mexico, Police 

Department.1

 Although our review is de novo, and we construe the evidence in the 

light most favorable to Mr. Valencia, against whom summary judgment was granted,

Estate of Booker v. Gomez, 745 F.3d 405, 411 (10th Cir. 2014), we, like the district 

court, must “view[] the facts in the light depicted by the video[recording],” Scott v. 

Harris, 550 U.S. 372, 381 (2007). We therefore cannot adopt a party’s version of the 

facts where “there is clear contrary video evidence.” Thomas v. Durastanti, 607 F.3d 

655, 659 (10th Cir. 2010). The district court granted qualified immunity to the 

individual defendants on Mr. Valencia’s federal claims, so we must determine 

whether Mr. Valencia met his burden to show that they “violated a federal 

constitutional or statutory right and, if so, . . . that the right was clearly established at 

the time of [their] unlawful conduct.” Estate of Booker, 745 F.3d at 411.

Mr. Valencia was represented by counsel in the district court, but he appears pro se 

on appeal. We therefore liberally construe his pro se appellate filings but do not act 

as his advocate. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).

 1 Defendants submitted five video recordings as media exhibits to their 

summary judgment motion and have filed them in a supplemental appendix on 

appeal. We will refer to them by officer name and approximate time.

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II. FACTUAL BACKGROUND

Officer De Luca observed Mr. Valencia driving on Santa Fe’s Cerrillos Road

at night with front lights that “appeared dimmer than standard headlights and . . . dull 

orange in color” in comparison with other cars on the road. R., Vol. 1 at 141. Based 

on that observation, Officer De Luca believed Mr. Valencia was driving with parking 

lights instead of headlights, in violation of Santa Fe’s traffic code, so he made a 

U-turn, activated his emergency lights, and initiated a traffic stop. Sergeant Strahon 

pulled in behind Officer De Luca, who was immediately behind Mr. Valencia as 

Mr. Valencia made a left turn off Cerrillos Road while the light was red and a right 

turn into a gas station, where he parked. In the car with Mr. Valencia were C.T. and 

J.M., and all three were sixteen or seventeen years old.

When Mr. Valencia gave Officer De Luca his license, registration, and proof 

of insurance, both officers smelled a strong odor of burnt marijuana emanating from 

the car. Sergeant Strahon told the occupants that it would be easier if they just 

surrendered the marijuana or paraphernalia. Someone in the car said they had been 

smoking “spice,” and Mr. Valencia handed Sergeant Strahon a bag of something. 

Strahon Video at 3:30-4:11.2

 Sergeant Strahon noted the bag was labeled “not for

human consumption” and, referring to it as “Cush” and “potpourri,” said it was not 

 2 Both officers claimed Mr. Valencia made the statement and handed over the 

bag, but the district court declined to consider that testimony because the video 

evidence was unclear about who made the statement and it did not show what was in 

the bag.

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what he smelled—he smelled “weed.” Id. at 4:11-43. C.T. then handed Officer 

De Luca a “roach” (the remainder of a marijuana cigarette) and said they had been 

smoking it “on and off.” De Luca Video at 5:20-24.

Officer De Luca obtained the names and birthdates of Mr. Valencia’s 

passengers, neither of whom had identification, but when he ran their information

through law enforcement databases, he was unable to obtain anything on J.M. 

Meanwhile, Mr. Valencia asked Sergeant Strahon if he could put on his jacket, which 

was on the back seat. Sergeant Strahon patted down the jacket for weapons, found 

none, and handed it to Mr. Valencia. Officer De Luca then returned, gave 

Mr. Valencia a citation for driving without headlights, and returned his paperwork to 

him. Officer De Luca next mentioned the marijuana smell and asked for permission 

to search the car. Mr. Valencia declined, saying that he had spoken with his father, 

who advised him not to do anything until his father arrived. 

Officer De Luca went to the passenger side to get additional personal 

information from the passengers, but J.M. could not or would not provide his address 

or social security number. As Officer De Luca was talking to the passengers, Officer 

Salazar arrived. He approached the driver’s side and asked Mr. Valencia several 

times for the keys, which were still in the ignition. After declining several times, 

Mr. Valencia gave the keys to Officer Salazar, who placed them on the roof.

Officer De Luca informed Sergeant Strahon that J.M. did not know his home 

address or social security number and that his information had not come back from 

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the databases Officer De Luca had searched. Concerned that J.M. was trying to 

conceal his identity, Sergeant Strahon tried to open the rear passenger door where 

J.M. was sitting, but it was locked. He asked J.M. to step out of the car, but 

Mr. Valencia told J.M. not to get out and allegedly rolled up the windows. When 

Sergeant Strahon told Mr. Valencia he needed J.M. out of the car, Mr. Valencia 

questioned his authority absent a warrant. Sergeant Strahon said he did not need a 

warrant to remove J.M. and, for safety reasons, directed Officers De Luca and 

Salazar to take Mr. Valencia out of the car. Officer Salazar opened the driver’s door, 

and both he and Officer De Luca asked Mr. Valencia repeatedly to get out of the car 

while attempting to pull him out. Mr. Valencia refused, bracing his legs against the 

floorboard and grabbing onto the steering wheel.

During the ensuing two-minute struggle with Officers De Luca and Salazar, 

Mr. Valencia continuously argued with them, claiming they were hurting him and 

that he would come out if they let go. Toward the end of the struggle, 

Sergeant Strahon told Mr. Valencia that he was obstructing the officers by telling 

J.M. not to get out and by refusing to get out himself, all of which Mr. Valencia 

denied. After Officer De Luca began to twist Mr. Valencia’s left wrist and arm and 

use pressure points, the officers were able to get Mr. Valencia out and handcuff him. 

Meanwhile, J.M. told Sergeant Strahon he did not know his address because he 

had just moved. He then stepped out of the car, and Sergeant Strahon handcuffed 

him and placed him in a patrol car.

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A search of Mr. Valencia revealed, among other things, a diabetes test kit and 

a plastic bag in his jacket pocket containing a substance that field-tested as 

marijuana. During that search, Officers Lewandowski and Macarenas arrived. 

Officer Lewandowski noted the strong odor of marijuana coming from 

Mr. Valencia’s car. He had C.T. call his mother, then spoke to her himself, 

informing her of the situation and that she would have to pick up her son at the police 

station. Officer Lewandowski searched C.T. and placed him in a patrol car. After 

reading him his Miranda rights, Officer Lewandowski questioned C.T., who said he, 

Mr. Valencia, and J.M. had been at a festival and “made a very stupid choice” to 

“smoke in the car.” Lewandowski Video at 15:32-45. He clarified that they had

“smoked pot, . . . a pretty big joint.” Id. at 15:47-57. A search of Mr. Valencia’s car 

uncovered a small vial of a green leafy substance, but there is no indication that the 

substance was ever identified.

When Mr. Valencia’s father arrived, he informed the officers that his son has 

Type I diabetes but declined their offer to call for medical assistance. See Salazar

Video at 42:50-43:30, 50:10-38. The officers photographed Mr. Valencia with his 

jacket off, and in response to questioning, Mr. Valencia said he was not injured or in 

pain. The officers released Mr. Valencia and the car, which his father owned, to his 

father’s custody. The traffic citation and the charges against Mr. Valencia (resisting 

arrest, obstruction, and possession of marijuana) were eventually dismissed.

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Mr. Valencia then brought this action. He asserted claims against the 

individual officers under 42 U.S.C. § 1983, alleging they violated his Fourth 

Amendment rights against unlawful detention and seizure and the use of excessive 

force, and his First Amendment free-speech rights. He also advanced claims against 

all the officers under New Mexico law for assault, battery, false arrest, false 

imprisonment, and violation of the New Mexico Children’s Code. He further 

claimed Officer De Luca maliciously prosecuted him in violation of state law, and 

the City of Santa Fe was liable for negligent hiring, training, and retention of the 

defendant officers and under the doctrine of respondeat superior.

III. DISTRICT COURT’S DECISION AND OUR ANALYSIS

A. The stop

Defendants filed a motion for summary judgment, with the individual officers 

asserting qualified immunity. The district court granted that motion. The court first 

concluded Officer De Luca had reasonable suspicion of a traffic violation, which 

justified the initial stop. See United States v. Botero-Ospina, 71 F.3d 783, 787 

(10th Cir. 1995) (en banc) (holding that “a traffic stop is valid under the Fourth 

Amendment if the stop is based on an observed traffic violation or if the police 

officer has reasonable articulable suspicion that a traffic or equipment violation has 

occurred or is occurring”). The court observed that Officer De Luca’s dashboard 

camera showed that although Mr. Valencia’s headlights were in fact on, they 

appeared duller and dimmer than the bright white headlights of other cars captured on 

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the recording, and the video evidence supported Officer De Luca’s affidavit 

testimony that the headlights on Mr. Valencia’s car did not illuminate the road in 

front of him very brightly when he made the left turn off Cerrillos Road or the right 

turn into the gas station. The court concluded it was reasonable under the 

circumstances for Officer De Luca to think the headlights were off. See United 

States v. DeGasso, 369 F.3d 1139, 1144 (10th Cir. 2004) (“An officer’s reasonable 

mistake of fact, as distinguished from a mistake of law, may support the probable 

cause or reasonable suspicion necessary to justify a traffic stop.”).

3

We agree with the district court’s analysis on this issue. Although 

Mr. Valencia’s lights were on and the citation was ultimately dismissed, that does not 

undermine the reasonableness of Officer De Luca’s suspicion at the time of the stop,

given the video evidence. Nor is Officer De Luca’s suspicion undermined by 

 3 Even though Officer De Luca’s video footage clearly showed Mr. Valencia ran 

the red light when he made the left off Cerrillos Road, the court did not base its 

reasonable-suspicion analysis on that fact because by then, Officer De Luca had 

already activated his emergency lights, and in the absence of probable cause, a 

nonconsensual traffic stop must be “justified at its inception,” United States v. 

Salzano, 158 F.3d 1107, 1111 (10th Cir. 1998) (internal quotation marks omitted). 

However, the court considered that violation part of the circumstances the officers 

were entitled to rely on in the investigation of whether Mr. Valencia was impaired.

The court also considered it immaterial that there were some differences 

between Officer De Luca’s Internal Affairs interview and his affidavit supporting his 

request for qualified immunity, concluding there were only additional details in the 

affidavit, which he prepared after admittedly refreshing his recollection of the 

incident by watching the videotapes. We see no error in that conclusion.

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Mr. Valencia’s allegation that, during his five-mile drive on Cerrillos Road, he drove 

past other police officers without getting pulled over.

B. Extension of the stop

We also agree with the district court’s conclusion that the officers were 

justified in extending the duration of the traffic stop because they had reasonable 

suspicion of criminal activity—possession of marijuana and driving while 

intoxicated—based on Mr. Valencia’s left turn off Cerrillos Road against the light, 

the marijuana smell, and the roach, which C.T. said was the remains of what they had 

been smoking. See United States v. Kitchell, 653 F.3d 1206, 1217-18 (10th Cir. 

2011) (stating settled rule that an officer may extend a traffic stop beyond its original 

purpose if the officer “acquire[s] a particularized and objective basis for suspecting 

the particular person stopped of criminal activity” (internal quotation marks 

omitted)); United States v. Bradford, 423 F.3d 1149, 1160 (10th Cir. 2005)

(concluding that an officer has probable cause to search entire vehicle when its 

occupant hands marijuana to the officer); United States v. Parker, 72 F.3d 1444, 1450 

(10th Cir. 1995) (finding probable cause to search passenger compartment when 

officer smells marijuana there). The video evidence squarely rebuts Mr. Valencia’s

arguments that he did not run the light and that C.T. did not hand over the roach and 

then state that the three had been smoking it. Contrary to Mr. Valencia’s argument, 

the fact that there was no cloud of smoke visible when the officers were first in 

contact with the vehicle does not establish that the officers did not smell burnt 

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marijuana. Further, their claim that they smelled burnt marijuana is clearly supported 

by other evidence that the three juveniles had smoked marijuana in the car.4

C. The arrest

The district court next considered whether probable cause supported 

Mr. Valencia’s arrest. “When a warrantless arrest is the subject of a § 1983 action, 

the arresting officer is entitled to qualified immunity if a reasonable officer could 

have believed that probable cause existed to make the arrest.” Robertson v. Las 

Animas Cnty. Sheriff’s Dep’t, 500 F.3d 1185, 1191 (10th Cir. 2007). “Probable cause 

exists if facts and circumstances within the arresting officer’s knowledge and of 

which he or she has reasonably trustworthy information are sufficient to lead a 

prudent person to believe that the arrestee has committed or is committing an 

offense.” Id. (internal quotation marks omitted). The court reasoned that, from the 

beginning of the traffic stop, there was probable cause to investigate marijuana

 4 Mr. Valencia also relies on Commonwealth v. Overmyer, 11 N.E.3d 1054 

(Mass. 2014), for the notion that the odor of marijuana is insufficient to establish 

reasonable suspicion or probable cause. Setting aside that Overmyer is not binding 

precedent in the Tenth Circuit, Mr. Valencia’s reliance on it is misplaced because the 

case concerned whether the odor of unburnt marijuana alone established probable 

cause to believe that a vehicle contains criminal contraband or evidence of a crime,

see id. at 1055. Here, the officers had more than simply odor. Further, Overmyer 

turned on the fact that, in Massachusetts, possession of less than one ounce of 

marijuana is a civil violation, not a criminal one, and there was no evidence the 

officers could, by smell, discern a criminal quantity of marijuana. Id. at 1057-60. In 

the absence of a prescription, New Mexico makes first-time possession of “one ounce 

or less of marijuana . . . a petty misdemeanor,” N.M. Stat. Ann. § 30-31-23(B), so the 

smell of burnt marijuana would be a sufficient basis for reasonable suspicion of 

criminal activity where, as here, there is no evidence of a prescription.

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possession or driving while intoxicated, and in connection with that investigation, it 

was reasonable and lawful to order Mr. Valencia to get out of the car. See Bradford, 

423 F.3d at 1160; Parker, 72 F.3d at 1450; Maryland v. Wilson, 519 U.S. 408, 415 

(1997) (holding that an officer does not violate the Fourth Amendment when, during 

a lawful traffic stop, he orders passengers to get out of the vehicle); Pennsylvania v. 

Mimms, 434 U.S. 106, 111 n.6 (1977) (per curiam) (same with respect to the driver). 

Therefore, the court concluded, the officers had probable cause to arrest Mr. Valencia 

for marijuana possession, driving while intoxicated, and for resisting and 

obstructing.

5

We agree, and nothing in Mr. Valencia’s appellate briefs persuades us to the 

contrary. We reject his contention that the officers planted the baggie on him, which 

he bases on the fact that Sergeant Strahon did not find the baggie when he patted 

down Mr. Valencia’s jacket for weapons and that the baggie fell to the ground and 

blew a short distance away during the search of Mr. Valencia. Sergeant Strahon did 

not exhaustively search the jacket for drugs but only felt for weapons, and although 

somewhat dark and grainy, the videos show Officer De Luca pulling a baggie out of 

the breast pocket of Mr. Valencia’s jacket, the baggie falling to the ground, and 

 5 The court referred to natural and synthetic marijuana, the latter of which is 

also illegal in New Mexico absent a prescription, but the court had earlier stated it 

would not credit testimony that it was Mr. Valencia who said they had been smoking 

“spice” and handed over a bag of “spice,” which is apparently a term used for 

synthetic marijuana. Because there clearly was probable cause to arrest Mr. Valencia 

with regard to natural marijuana, any error in the court’s reference to synthetic 

marijuana at this point was harmless.

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Officer Strahon retrieving it. De Luca Video at 29:28-45; Strahon Video 

at 28:54-29:10. Further, the district court did not rest its probable-cause 

determination on Sergeant Strahon’s belief that J.M. was concealing his identity or

that Mr. Valencia may have falsely imprisoned J.M. when he allegedly rolled up the 

windows and locked the doors. It is therefore immaterial whether those beliefs were, 

as Mr. Valencia claims, a ruse.

D. Removal by force

The district court next concluded the force used to remove Mr. Valencia from 

the car was objectively reasonable in light of the circumstances. See Olsen v. Layton 

Hills Mall, 312 F.3d 1304, 1314 (10th Cir. 2002) (stating qualified-immunity analysis 

considers whether force was “objectively reasonable in light of the facts and 

circumstances,” including the severity of the alleged crime, the degree of suspect’s 

“potential threat,” and his “efforts to resist or evade arrest” (internal quotation marks 

omitted)). The court observed that pulling on Mr. Valencia, using pressure points, 

and twisting his wrist and arm was no greater force than the force we considered 

reasonable in Mecham v. Frazier, 500 F.3d 1200, 1203, 1204-05 (10th Cir. 2007), 

which involved the use of pepper spray to the face and the physical removal of a 

resistant traffic-stop suspect.

6

 6 The court also cited two cases from other circuits where qualified immunity 

was granted to officers who used similar techniques and degrees of force in removing 

traffic-stop suspects from their vehicles. See Lawrence v. Kenosha Cnty., 391 F.3d 

837, 843 (7th Cir. 2004); McGruder v. Heagwood, 197 F.3d 918, 920 (8th Cir. 1999).

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We again agree with the court’s analysis, especially given that the officers had 

the lawful authority to remove Mr. Valencia from the car and that the amount of 

force used was minimal in comparison with more drastic techniques, such as the use 

of pepper spray, tasers, or batons, all of which the officers claimed they did not use 

because Mr. Valencia was a juvenile. Mr. Valencia claims the officers could not 

remove him because he was still wearing his seat belt, and once he unfastened it, he 

got out “voluntarily.” Aplt. Opening Br. at 17; Reply at 2, 5. We reject those claims. 

Mr. Valencia alleged in his complaint that he was “forcibly extracted,” R., Vol. 1 

at 18, and the video evidence conclusively shows that he did not get out of the car 

“voluntarily.” At one point during the struggle, he says, “If I let go, I’m going to hit 

my head,” De Luca Video at 27:57-59, which is contrary to his self-serving 

attestation that he was not holding on to the steering wheel or otherwise bracing 

himself inside the car but was instead simply belted into his seat. See Garrett v. 

Hewlett-Packard Co., 305 F.3d 1210, 1213 (10th Cir. 2002) (stating that, in 

evaluating summary judgment proceedings, “[w]e do not consider [a nonmovant’s] 

conclusory and self-serving affidavits” (internal quotation marks omitted)). Thus, 

although one officer was able to obtain control of his left arm, it is beyond dispute 

that Mr. Valencia was physically maintaining himself in the car (the exact manner is 

immaterial), and he points to no clearly established law that would suggest to a 

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reasonable officer that pulling him out of his car by his arms and, he claims, head and 

neck, constituted excessive force.

7

E. First Amendment claim

To prevail on his First Amendment retaliatory-arrest claim, Mr. Valencia had 

to show “he was engaged in constitutionally protected activity,” “the government’s 

actions caused him injury that would chill a person of ordinary firmness from 

continuing to engage in that activity,” and that the officers’ “actions were 

substantially motivated as a response to his constitutionally protected conduct.” 

Stonecipher v. Valles, 759 F.3d 1134, 1147 (10th Cir.), cert. denied, 135 S. Ct. 881 

(2014). The district court found no evidence that the officers were substantially 

motivated to arrest him by anything Mr. Valencia said during the incident. Instead, 

the court concluded that the officers were substantially motivated (and justified) in 

arresting Mr. Valencia when he physically resisted lawful orders to step out of the 

car. We agree with that conclusion. Certainly, part of Sergeant Strahon’s motivation 

in ordering Officers De Luca and Salazar to take Mr. Valencia out of the car was 

 7 Although Mr. Valencia averred that there are medical records showing he 

suffered serious physical and emotional injuries, he provided no evidence of the 

nature or extent of any injuries such that they might bear on the reasonableness of the 

force used. See Cortez v. McCauley, 478 F.3d 1108, 1129 (10th Cir. 2007) (stating 

that Fourth Amendment excessive-force claim requires more than a de minimis

physical or emotional injury); see also Garrett, 305 F.3d at 1213 (declining to 

consider nonmovant’s “conclusory and self-serving affidavits” when evaluating 

summary judgment proceedings (internal quotation marks omitted)). Further, he 

disclaimed injury just before he was released to his father’s custody, and the 

post-arrest video footage of him without his jacket on shows no obvious injury.

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Mr. Valencia’s statement that a warrant was necessary to remove J.M. from the car

and his instruction that J.M. not get out. But as the district court noted, 

Mr. Valencia’s warrant argument was legally incorrect, see Wilson, 519 U.S. at 415; 

Mimms, 434 U.S. at 111 n.6, and we are unaware of any clearly established 

free-speech right to wrongfully instruct another person to disobey a police officer’s 

lawful order. The district court properly granted qualified immunity on this claim.

F. State law tort claims

The court next held that Mr. Valencia’s state-law tort claims (assault, battery, 

false arrest, false imprisonment) and his malicious abuse of process claim failed 

because the officers had probable cause to arrest him and did not use excessive force. 

See Dickson v. City of Clovis, 242 P.3d 398, 404 (N.M. Ct. App. 2010) (stating that 

such claims “presuppose” a lack of “probable cause to arrest”). We see no error in 

that conclusion, or in the court’s disposition of Mr. Valencia’s remaining state-law 

claims. His claim under the New Mexico Children’s Code failed because he was 

released to his father’s custody, not sent to a detention center. See N.M. Stat. Ann. 

§ 32A-2-11(A) (prohibiting placement of a juvenile in detention unless an assessment 

shows he is a risk to himself or others, or that he may leave the jurisdiction). His 

claim against the City of Santa Fe for negligent hiring, training, and retention of the 

defendant officers failed because the officers did not proximately cause any tort for 

which the state waived sovereign immunity. See Ortiz v. N.M. State Police, 814 P.2d 

117, 118-19 (N.M. Ct. App. 1991) (recognizing sovereign immunity is waived for 

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such a claim when the subordinates proximately cause an underlying tort). And 

because the defendant officers had not themselves committed any tort for which 

sovereign immunity was waived, his respondeat superior claim against the City 

failed. See Silva v. State, 745 P.2d 380, 385 (N.M. 1987) (explaining that a 

respondeat superior claim against a governmental entity requires an underlying tort 

by the entity’s employee).

IV. CONCLUSION

The judgment of the district court is affirmed. Mr. Valencia’s motion to 

proceed on appeal without prepayment of costs or fees is granted, and we remind him 

of his obligation to continue making partial payments until his entire filing fee has 

been paid in full.

Entered for the Court

Mary Beck Briscoe

Chief Judge

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