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June 25, 1985

HOWARD REED, SR., ROMALDGA REED and HOWARD REED, JR., Plaintiffs, against SERGEANT EDWARD SCHNEIDER and SERGEANT JOSEPH DeFINA, Individually and as Police Officers in the Police Department of the City of New York, and the CITY OF NEW YORK, Defendants

The opinion of the court was delivered by: MCLAUGHLIN

McLAUGHLIN, District Judge


The attached Report and Recommendation of Hon. Shira A. Scheindlin, United States Magistrate, is hereby adopted as the Opinion of this Court. No objections were filed within the time permitted.

 It is hereby ORDERED that the complaint is dismissed as against defendant City of New York. Discovery in this case is to proceed forthwith before Magistrate Scheindlin.



 SHIRA A. SCHEINDLIN, United States Magistrate

 Plaintiffs, Police Officer Howard Reed, Sr., his wife Romaldga Reed, and their son, Howard Reed, Jr. bring this action seeking damages for the alleged violation of their constitutional right to be free from unreasonable searches under 42 U.S.C. ┬ž 1983, the Civil Rights Act ("the Act"). This case was referred to me by the Honorable Joseph M. McLaughlin for a report and recommendation on defendants' motion for summary judgment.

 I. Statement of Facts *fn1"

 On the evening of September 18, 1978, Police Officer Brady, accompanied by defendants, Sergeants Schneider and DeFina, arrived at the home of plaintiff, Police Officer Howard Reed, Sr. Defendants, members of the Internal Affairs Department, were in possession of a Grand Jury subpoena that they planned to serve on Officer Reed that night. (DeFina, 13; Schneider, 13). *fn2"

 Defendants went to plaintiffs' house to serve the subpoena and, when they discovered that Officer Reed's car was not parked near the house, they agreed to wait outside the house for him to arrive. Shortly after midnight, as the last light in Officer Reed's home was extinguished, defendants sought to gain entry into Officer Reed's home (DeFina, 29-30; Schneider 33). They knocked on the front door, and after several minutes passed without response, they decided that one officer would attempt to telephone the residence to inform its occupants that police officers were waiting at their door. (DeFina, 31; Schneider, 36).

 Plaintiff Romaldga Reed, awakened by the knocking, was about to answer the door when the telephone rang. She directed her son, plaintiff Howard Reed, Jr., to "get the door" while she answered the phone. (Reed, Jr., 17). Howard Reed, Jr., looked outside and observed defendants dressed in plain clothes and standing within ten feet of the house. (Reed, Jr., 13). Defendants approached the front door when they saw the activity within the house. (DeFina, 32). Through the closed door, Howard Reed, Jr., asked the police officers to identify themselves. Unable to hear their response, Howard Reed, Jr. opened the door. (Reed, Jr., 17).

 While Howard Reed, Jr. was answering the door, his mother was engaged in a telephone conversation with an unidentified Sergeant. The sergeant identified himself as an officer of the medical unit of her husband's precinct and informed Mrs. Reed that two of his men were at her door. (Mrs. Reed, 18, 20). The sergeant then asked her if she knew where her husband was. When Mrs. Reed replied that she did not know, the sergeant asked her if it was "strange that you don't know where your husband is?" (Mrs. Reed, 18). Becoming concerned for her husband's well being, Mrs. Reed asked the sergeant why he was calling at such a late hour, and whether her husband was injured or dead. (Mrs. Reed, 19). The sergeant would not respond to Mrs. Reed's inquires about her husband's condition. At this point the sergeant, calling from a pay phone, was disconnected.

 During the course of Mrs. Reed's telephone conversation Howard Reed, Jr. had opened the front door. Defendants identified themselves as being from the "medical unit" and asked to come inside. (Reed, Jr., 18). Concerned for his father's well being, Howard Reed, Jr. allowed defendants into the house. (Reed, Jr., 22). Upon entering the house, one of the police officers began interrogating Howard Reed, Jr., with such questions as "where is your father?" (Reed, Jr. 23). Although Howard Reed, Jr. responded that he did now know where his father was, the questioning continued. Howard Reed, Jr. was asked why his father was not at home and if it was unusual for his father to be out at such a late hour. (Reed, Jr., 23). Unable to locate Officer Reed in the house, defendants left without answering Howard Reed, Jr.'s questions concerning the ...

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