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April 8, 1981

Brian O'HAGAN, Plaintiff,
Hector L. SOTO, Defendant

The opinion of the court was delivered by: MOTLEY


On January 6, 1979, plaintiff, Brian O'Hagan, was arrested by defendant, Officer Hector L. Soto of the Haverstraw, New York, Police Department, and charged with possession of stolen property. On February 10, 1980, plaintiff began this action under 42 U.S.C. § 1983 claiming that his arrest and subsequent treatment violated various provisions of the United States Constitution. Defendant has now moved for summary judgment. For the reasons given below, the motion is granted in part and denied in part.

 The Facts

 On the evening of Friday, January 5, 1979, plaintiff was approached by a detective Freeman of the Haverstraw Police Department and told to report to the Haverstraw police station on the following day. *fn1" Saturday, January 6, 1979, plaintiff voluntarily appeared at the Haverstraw police station as requested. After waiting sometime between ten minutes and half an hour, plaintiff was approached in the police station lobby by defendant, and asked to step into defendant's office. Plaintiff entered defendant's office and sat down. Plaintiff was informed by defendant that he was under arrest for possession of stolen property. Plaintiff was then told that since his father is a police officer, and defendant is a police officer, "Police officers extend each other certain courtesies." Plaintiff's Deposition of November 26, 1980 at p. 13. At this point plaintiff requested permission to make a telephone call, and this permission was denied. Defendant also refused to display an arrest warrant upon request. Defendant then presented plaintiff with a statement implicating third parties in the theft for which plaintiff was being arrested. Defendant stated that if plaintiff signed this statement, the charges against plaintiff would be dropped. Plaintiff refused to sign the statement. He was then told by defendant that failure to sign the statement would result in plaintiff going to jail. Plaintiff again refused to sign the statement. He was then allowed to make a telephone call.

 Plaintiff used this telephone call to contact his father, who arrived at the police station "shortly after that." Plaintiff's Deposition of November 10, 1980 at p. 16. After plaintiff's father arrived, defendant renewed his offer concerning the statement implicating third parties in the theft. At this point plaintiff and his father were together, and, in fact, were never separated during the balance of the time spent at the Haverstraw police station. Plaintiff again refused to sign the statement, at which point the Hon. Timothy P. Walsh, Village Justice of the Village of West Haverstraw, was summoned to the police station in order to arraign plaintiff. By plaintiff's own testimony, Justice Walsh arrived at the police station approximately two hours after plaintiff first encountered defendant. At this point, according to plaintiff, his father had already spent approximately an hour at the police station. Plaintiff was arraigned, informed of the charges against him, and released on his own recognizance. The charges against plaintiff were subsequently dismissed.


 Plaintiff has brought this action pursuant to 42 U.S.C. § 1983 to recover damages for various alleged violations of his constitutional rights. The penultimate paragraph of the complaint alleges three specific deprivations of constitutional rights stemming from the facts as alleged. These claims will be considered in the order found in the complaint, along with certain other possible claims arising out of the fact alleged in the complaint.

 Plaintiff's first constitutional claim alleges deprivation of his right "to be secure in his person and effects against unreasonable search and seizure under the Fourth and Fourteenth Amendments to the Constitution of the United States." Complaint P 24. The analysis of such a claim is fairly straightforward if the arrest in question took place pursuant to a valid arrest warrant. The Supreme Court has recently declared that a 1983 action is not available against a state law enforcement official for incorrectly arresting someone when the arrest took place pursuant to a valid arrest warrant. In Baker v. McCollan, 443 U.S. 137, 99 S. Ct. 2689, 61 L. Ed. 2d 433 (1978) (Baker), the plaintiff was arrested after being stopped for a traffic violation. A routine check revealed an outstanding warrant, apparently for plaintiff's arrest. Instead, the warrant was actually for plaintiff's brother. The confusion arose from the plaintiff's brother's use of a forged driver's license at the time when he was arrested. Thus plaintiff's brother passed himself off as the plaintiff, and so when he failed to appear in court after release, a bench warrant was naturally issued for the person whom police believed was plaintiff, but instead was plaintiff's brother. As one might imagine, the plaintiff, protested his arrest for his brother's crime in strenuous terms. Unfortunately it took six days for the Dallas police to determine they had the wrong brother. Plaintiff sued pursuant to Section 1983, alleging violation of this Fourteenth Amendment right not to be deprived of his liberty without due process of law.

 The Supreme Court rejected this claim, observing:

By virtue of its "incorporation" into the Fourteenth Amendment, the Fourth Amendment requires the States to provide a fair and reliable determination of probable cause as a condition for any significant pretrial restraint of liberty.... The probable cause determination "must be made by a judicial officer either before or promptly after arrest." ... Since an adversary hearing is not required, and since the probable cause standard for pretrial detention is the same as that for arrest, a person arrested pursuant to a warrant issued by a magistrate on a showing of probable cause is not constitutionally entitled to a separate judicial determination that there is probable cause to detain him pending trial.

 443 U.S. at 142-143, 99 S. Ct. at 2694 (citations omitted, emphasis added). The Court went on to say that "(absent) an attack on the validity of the warrant under which he was arrested", plaintiff's constitutional claims would have to arise from actions by law enforcement officials which occurred subsequent to his arrest. 443 U.S. at 143-144, 99 S. Ct. at 2694.

 Therefore, if the arrest warrant which prompted plaintiff's arrest in the instant case is valid, plaintiff's only cognizable 1983 claims must derive from defendant's actions subsequent to the arrest. However, plaintiff has sought to cast doubt on the validity of the arrest warrant. Plaintiff's counsel has repeatedly alleged, in papers submitted to the court and during hearings on this motion, that the arrest warrant offered by defendant is a backdated forgery created specifically to aid in the defense of this action. In support of this allegation, plaintiff has submitted a letter from Justice Walsh, the judge who signed the arrest warrant as well as the judge who presided at plaintiff's arraignment, to plaintiff's counsel. This letter is dated November 25, 1980, and reads in its entirety:

According to the Court's records there was no warrant issued for the arrest of Brian P. O'Hagan on the charge of Criminal Possession of Stolen Property in the Third Degree during the years of 1978 or 1979.

 This letter appears to have been signed by a clerk or secretary on behalf of Judge Walsh. The November 25, 1980, letter caused this court to order the deposition of Judge Walsh in an ...

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