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ADEKALU v. NEW YORK CITY

May 11, 1977

Ade ADEKALU, pro se, Plaintiff,
v.
NEW YORK CITY and New York State, Defendants



The opinion of the court was delivered by: LASKER

MEMORANDUM

 LASKER, District Judge.

 Dr. Ade Adekalu, a Nigerian citizen now living in New York sues the City and State of New York for damages arising out of claimed violations of his Constitutional rights under the Fourth and Fourteenth Amendments. Jurisdiction is founded on § 1331 and directly upon the Fourteenth Amendment. Both defendants move to dismiss.

 Since the only relief sought is money damages, the claims against New York State must be dismissed. The Eleventh Amendment stands as an absolute bar to such a suit against the State, notwithstanding any provisions of State law in which the State consents to suit in State court. Edelman v. Jordan, 415 U.S. 651, 94 S. Ct. 1347, 39 L. Ed. 2d 662 (1974); Moor v. County of Alameda, 411 U.S. 693, 93 S. Ct. 1785, 36 L. Ed. 2d 596 (1973). The discussion which follows is addressed only to the claims against New York City.

 I.

 The essential facts out of which this action arose, as set forth in People v. Adekalu, 51 A.D.2d 941, 381 N.Y.S.2d 483 (1976), are these: On the evening of March 31, 1973 a young woman complained to the police that she had just been raped, and led three New York City detectives to an apartment in Manhattan in which the alleged rape occurred. When plaintiff answered the door, he was identified by the complainant as the assailant. The detectives thereupon arrested Dr. Adekalu, handcuffed him and led him into his own living room. Although there is no question that this arrest was with probable cause and valid, the instant claims arise out of the officers' subsequent actions.

 The officers had no warrant to search the apartment. One of the detectives, ostensibly seeking to observe the water bed on which the complainant alleged certain of the acts to have occurred, proceeded from the living room to the doorway of Dr. Adekalu's bedroom. On viewing the water bed from the doorway, the officer went into the bedroom for the "professed purpose" of examining the water bed. He turned around and, looking into an open walk-in closet, observed a clear plastic bag which he believed to contain marijuana. The detective then took possession of what turned out to be a small quantity of marijuana.

 Dr. Adekalu was subsequently tried on various charges. His first trial, on charges of rape, assault and unlawful imprisonment resulted in acquittals on all counts. He was then charged with possession of marijuana and attempted bribery of a police officer. The trial judge denied a motion to suppress the marijuana. Dr. Adekalu was acquitted of the bribery charge but convicted of possession of marijuana and sentenced to three years imprisonment.

 Plaintiff appealed pro se from his conviction and sentence. The Appellate Division unanimously reversed, holding that

 
"The search was not conducted pursuant to a valid search warrant, or incidental to the completed arrest outside the searched premises or with defendant's consent. . . . The chief evidence seized should be suppressed because it was the product of an illegal search, although the arrest was proper . . ."

 The court added:

 
"We should be ever mindful of the observation of the Supreme Court: 'The plain view doctrine may not be used to extend a general exploratory search from one object to another until something incriminatory at last emerges . . .'"

 Pursuant to the Appellate Division decision, Dr. Adekalu was released from custody on March 24, 1976 after having spent eleven months in Dannemora. His complaint was filed on July 26, 1976. He claims that as a result of the unlawful search and subsequent imprisonment he has suffered irreparable psychiatric harm, ...


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