                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  May 27, 2010
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                          FOR THE TENTH CIRCUIT


    LELAND W. HACKETT,

              Plaintiff-Appellant,

    v.                                                  No. 09-2261
                                           (D.C. No. 1:08-CV-00306-MCA-RHS)
    ARTESIA POLICE DEPARTMENT;                           (D. N.M.)
    ARTESIA MAYOR PRO TEM
    PHILLIP BURCH; ARTESIA
    MUNICIPAL COURT JUDGE KAYE
    KIPER; FIFTH JUDICIAL DISTRICT
    COURT CLERK JOYCE HATFIELD;
    ARTESIA POLICE DEPARTMENT
    OFFICER RICARDO HUERTA;
    ARTESIA POLICE DEPARTMENT
    OFFICER PEDRO QUINONES;
    ARTESIA POLICE DEPARTMENT
    OFFICER CLARKE; PECOS
    VALLEY DRUG TASK FORCE
    AGENT CARROL CAUDILL; PECOS
    VALLEY DRUG TASK FORCE
    AGENT VICTOR J. RODRIGUEZ,

              Defendants-Appellees.



                           ORDER AND JUDGMENT *


*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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.
Before BRISCOE, Chief Judge, BALDOCK, and TACHA, Circuit Judges.




      Plaintiff Leland W. Hackett, proceeding pro se here as in the district court,

appeals the district court’s order granting summary judgment in favor of

defendants the Artesia Police Department, Artesia Police Officers Ricardo Huerta,

Pedro Quinones, and Robert Clarke, Artesia’s Mayor Pro Tem Phillip Burch, and

Pecos Valley Drug Task Force Agent Victor J. Rodriguez. We have jurisdiction

under 28 U.S.C. § 1291, and we AFFIRM.

                                          I.

      In his complaint, Mr. Hackett pled an alleged violation of his federal

constitutional rights under 42 U.S.C. § 1983 and a conspiracy under 42 U.S.C.

§ 1985. 1 Three separate incidents in which Mr. Hackett was either detained or

arrested form the basis of his suit. As a pro se litigant, Mr. Hackett’s “pleadings

are to be construed liberally and held to a less stringent standard than formal

pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.

1991). Before addressing each incident and the claims attendant thereto, we


1
       Mr. Hackett also alleged a violation of 42 U.S.C. § 14141, the violation of
his state constitutional rights, and state law claims for assault and battery, false
imprisonment, false arrest, and malicious prosecution. The district court either
dismissed these claims or granted summary judgment for the defendants.
Mr. Hackett does not appeal these rulings.

                                         -2-
address Mr. Hackett’s argument that summary judgment could not be granted

because he demanded a jury trial. To the contrary, “[t]he Seventh Amendment is

not violated by proper entry of summary judgment, because such a ruling means

that no triable issue exists to be submitted to a jury.” Shannon v. Graves,

257 F.3d 1164, 1167 (10th Cir. 2001).

                                         II.

      The first incident took place in February 2006, when Officer Huerta

observed Mr. Hackett driving without his seat belt. Mr. Hackett pulled into a

convenience store parking lot and Officer Huerta pulled in behind him.

According to Mr. Hackett, he and his passenger had already exited the truck and

were on their way into the store when Officer Huerta ordered them to get back in

the truck. As he approached the vehicle, Officer Huerta observed Mr. Hackett

reach into the back seat and ordered him to step out of the truck. The belt tape

recording of the encounter reveals that Officer Huerta told Mr. Hackett to “[t]urn

around,” R. at 226. While holding Mr. Hackett’s thumbs together behind his

back, he asked “[w]hat are you reaching in the back [of the truck] for?” Id.

Mr. Hackett told him “just for my license.” Id. “Well, don’t be reaching in the

back because I don’t know what you got. . . . I don’t know if you got any

weapons or anything like that[.]” Id. Mr. Hackett volunteered that he did not

have any weapons, but that he did have a pocket knife in his right pants pocket.

He asked why he had been stopped and Officer Huerta told him that he was not

                                         -3-
wearing his seat belt, which Mr. Hackett admitted. Officer Huerta conducted a

pat-down search to locate the knife, but he could not find it, and asked if he could

“pull everything out [of Mr. Hackett’s pocket].” Id. at 227. Mr. Hackett told

him, “[w]ell, I think so, yeah.” Id. In addition to the knife, Officer Huerta pulled

out a glass object, which Mr. Hackett himself said “[l]ook[ed] like a smoking

utensil . . . because . . . all this stuff inside looks like it’s been burned or

something.” Id. at 230.

       At this point, Officer Huerta believed that the glass object was a

methamphetamine pipe, and he requested a field test kit. According to his report,

he “scrap[]ed out some of the crystal like substance from the tube . . . [and]

placed the substance into the test kit. The substance tested positive for

amphetamine due to the liquid changing orange.” Id. at 213. In the meantime,

Officer Huerta learned that Mr. Hackett did not have a valid driver’s license. He

issued him a citation for “the seat belt violation, unlawful use of license

(suspended) and a non traffic citation for the possession of drug paraphernalia.”

Id. In subsequent proceedings, the glass pipe and field-test evidence were

suppressed, and the municipal court judge deferred the charge of driving with a

suspended license provided that Mr. Hackett paid $28.00 in court fees no later

than June 21, 2006.

       Mr. Hackett argues that the scope of his detention, i.e., the pat-down

search, was unreasonable, and thus his Fourth Amendment rights were violated.

                                            -4-
Specifically, he claims that Officer Huerta did not have any reason to be

concerned for his safety, and the pat down was a pretext “to find . . . contraband,”

Aplt. Opening Br. at 25, and the district court erred in granting qualified

immunity. We disagree.

      Summary judgment is proper where “the pleadings, the discovery and

disclosure materials on file, and any affidavits show that there is no genuine issue

as to any material fact and that the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(c)(2). We review summary judgment orders deciding

qualified immunity somewhat differently: when the defendant seeks summary

judgment on the basis of qualified immunity, “a plaintiff must clear two hurdles.

The plaintiff must demonstrate on the facts alleged (1) that the defendant violated

his constitutional or statutory rights, and (2) that the constitutional right was

clearly established at the time of the alleged unlawful activity.” Swanson v. Town

of Mountain View, 577 F.3d 1196, 1199 (10th Cir. 2009).

      We conduct a two-step inquiry when determining the
      constitutionality of a traffic stop. First we ask whether the officer’s
      action was justified at its inception. If so, we then ask whether the
      resulting detention was reasonably related in scope to the
      circumstances that justified the stop in the first place.

United States v. Valenzuela, 494 F.3d 886, 888 (10th Cir. 2007).

      The belt tape recording of the incident establishes that Office Huerta was

concerned that Mr. Hackett might have been reaching for a weapon: “Well, don’t

be reaching in the back because I don’t know what you got. . . . I don’t know if

                                          -5-
you got any weapons or anything like that[.]” R. at 226. In addition, Mr. Hackett

volunteered that he had a pocket knife. In Terry v. Ohio, 392 U.S. 1, 27 (1968),

the Court held that a search for weapons during a routine traffic stop does not

violate the Fourth Amendment where a “reasonably prudent man in the

circumstances would be warranted in the belief that his safety . . . was in danger.”

See also United States v. Garcia, 459 F.3d 1059, 1063-64 (10th Cir. 2006)

(holding that a pat-down search for weapons during the course of a Terry stop is

proper when the officer has a reasonable suspicion that the person is armed).

We agree with the district court’s conclusion that there was not a Fourth

Amendment violation and Officer Huerta was entitled to qualified immunity.

                                         III.

      The execution of a bench warrant is the second incident giving rise to

Mr. Hackett’s claims. As stated above, the municipal court judge deferred the

charge of driving with a suspended license provided he timely paid the fine.

When he failed to do so, the judge, on August 7, 2006, signed a bench warrant for

his arrest. On August 15, Officer Huerta saw Mr. Hackett standing on the front

porch of a home and called dispatch, which confirmed that there was an

outstanding warrant for his arrest. Officer Huerta conducted a “[s]earch incident

to arrest while looking for weapons and contraband.” R. at 273. Mr. Hackett was

then transported to a detention center, and after paying his outstanding fine, he

was released. According to Mr. Hackett, he was “threatened by Officer Huerta

                                         -6-
with fourth degree felony charges if [he] did not call [Pecos Valley Drug Task

Force] Agent Caudill.” Id. at 471. He claimed that following his release he tried

to reach Agent Caudill, but was unsuccessful.

        Mr. Hackett argues that “[t]he bench warrant arrest for failure to pay

 $28.00 in court costs was an extreme and unnecessary measure, whereas a

 summons or notice to show cause would have been more reasonable.” Aplt.

 Opening Br. at 18. He also cites to some alleged procedural defects leading up

 to the issuance of the bench warrant. As a result, he asserts that the district

 court’s conclusion that Officer Huerta was entitled to absolute immunity was

 wrong. We disagree. Because “[a]n official charged with the duty of executing

 a facially valid court order enjoys absolute immunity from liability for damages

 in a suit challenging conduct prescribed by that order,” Valdez v. City & County

 of Denver, 878 F.2d 1285, 1286 (10th Cir. 1989), the district court correctly

 determined that Officer Huerta was entitled to absolute immunity.

                                          IV.

        The third incident arises from a March 2007, traffic stop by Officer

 Quinones, who saw Mr. Hackett driving a vehicle with an expired license plate.

 When Mr. Hackett could not produce a valid driver’s license, registration, or

 proof of insurance, Officer Quinones wrote him a citation and decided to have

 the vehicle towed. When Officer Clarke arrived on the scene, he was asked by

 Officer Quinones to “complete a tow sheet.” R. at 285. While conducting the

                                          -7-
inventory, Officer Clarke saw “a small, plastic bottle that appeared to be a bottle

of Visine,” id., in an open compartment. On the basis of “training and

experience,” id., Officer Clarke “kn[e]w that liquid methamphetamine can be

carried in a Visine bottle,” id., and “decided to test the contents of the bottle

using a NIC field test kit for methamphetamine,” id. Officer Clarke reported the

test was positive, and Officer Quinones arrested Mr. Hackett. But as

Mr. Hackett points out, the test-kit instructions state: “WARNING These tests

are NOT designed for use with liquid samples.” Id. at 509. Mr. Hackett was

arrested, and the case was turned over to Agent Rodriguez of the Pecos Valley

Drug Task Force, who obtained a search warrant and had the Visine retested.

This time the test was negative, and Mr. Hackett, who had been in custody for

several hours, was released.

      Mr. Hackett claims his constitutional rights were violated when the

vehicle was impounded, and Officer Clarke seized the Visine bottle and tested

its contents. He argues it was unnecessary to impound the vehicle because it

was parked in a store parking lot, and thus neither impeded traffic nor affected

the public safety. He also asserts that “Officer Quinones could have issued

citations and allowed Mr. Hackett to call a friend to remove the [vehicle] on a

car trailer,” Aplt. Opening Br. at 33, an acknowledgment that neither he nor

anyone else could lawfully drive the vehicle. These arguments lack merit.

Under the community caretaking doctrine, concerns about theft or vandalism are

                                          -8-
sufficient to justify impoundment. See United States v. Kornegay, 885 F.2d

713, 716 (10th Cir. 1989) (holding that “the fact that [a] vehicle [is] legally

parked in a parking lot does not, in and of itself, require the finding that

impoundment [is] unnecessary,” particularly where “there [is] no one available

to take custody of it . . . and there [is] the potential for theft or vandalism”);

see also United States v. Johnson, 734 F.2d 503, 505 (10th Cir. 1984) (same).

      Regarding the seizure of the Visine bottle and the subsequent field

testing, Mr. Hackett claims that the Visine bottle was “a common, legal

ordinary, non-criminal, and non[-]incriminating item,” Aplt. Opening Br. at 21,

and thus not subject to seizure. We disagree. The plain-view doctrine

authorizes the seizure of evidence of a crime if

      (1) the officer was lawfully in a position from which the object
      seized was in plain view, (2) the object’s incriminating character
      was immediately apparent (i.e., there was probable cause to believe
      it was contraband or evidence of a crime), and (3) the officer had a
      lawful right of access to the object.

United States v. Thomas, 372 F.3d 1173, 1178 (10th Cir. 2004). While

conducting an inventory search, Officer Clarke saw the bottle in an open

compartment. More to the point, he “kn[e]w that liquid methamphetamine can

be carried in a Visine bottle.” R. at 285. As to the field testing, Mr. Hackett

says it was done to “create[] probable cause [to arrest him] by fabrication of

evidence with the claim that he performed a field test and that the results were

positive for methamphetamine.” Aplt. Opening Br. at 22. First, the testing did

                                           -9-
not violate the Fourth Amendment because “[a] field test which reveals nothing

more than whether a substance is cocaine does not constitute a search.” United

States v. Nicholson, 144 F.3d 632, 636 (10th Cir. 1998). Second, there is no

evidence to support the claim of fabrication. Admittedly, the test kit said that it

was not “designed for use with liquid samples,” R. at 509. This admonition,

however, does not prohibit such use. Moreover, the fact that the contents of the

Visine bottle were retested after a search warrant was obtained, weighs against

any suggestion of fabrication. “‘The qualified immunity standard gives ample

room for mistaken judgments by protecting all but the plainly incompetent or

those who knowingly violate the law.’” Herrera v. City of Albuquerque,

589 F.3d 1064, 1070 (10th Cir. 2009) (quoting Hunter v Bryant, 502 U.S. 224,

229 (1991)). We therefore affirm the district court’s decision on qualified

immunity.

                                         V.

      As his final argument, Mr. Hackett claims that the district court erred in

granting summary judgment on his conspiracy claim. In his complaint, he pled

a conspiracy claim under 42 U.S.C. § 1985, which the court dismissed because

he is not a member of a protected class. Mr. Hackett appears to concede that he

cannot proceed under § 1985, but urges us to consider his allegations as stating

a claim for a civil conspiracy under New Mexico state law: “[T]he Court’s

dismissal is not warranted on the sole ground that Mr. Hackett may have

                                        -10-
mistakenly labeled his conspiracy claim under § 1985, provided that he has

pleaded facts that support a claim against the Defendants.” Aplt. Opening Br.

at 37. Setting aside the fact that it is not at all clear whether Mr. Hackett ever

raised the issue of a state-law conspiracy in the district court, he has waived the

issue in this court because he has not developed any argument or cited any legal

authority to support the claim. In Nielsen v. Price, 17 F.3d 1276, 1277

(10th Cir. 1994), we held that pro se parties are required to “follow the same

rules of procedure that govern other litigants.” (quotation omitted). Rule

28(a)(9) of the Federal Rules of Appellate Procedure requires, among other

things, “citations to the authorities . . . on which the appellant relies.” When a

pro se litigant fails to comply with Rule 28, “we cannot fill the void by crafting

arguments and performing the necessary legal research.” Garrett v. Selby

Connor Maddux & Janer, 425 F.3d 836, 841 (10th Cir. 2005).

      The judgment of the district court is AFFIRMED.


                                                      Entered for the Court



                                                      Mary Beck Briscoe
                                                      Chief Judge




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