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CAMERON v. FOGARTY

August 20, 1985.

Kenneth S. CAMERON, Plaintiff,
v.
Matthew FOGARTY and John Halbig, Defendants.



The opinion of the court was delivered by: NEAHER

MEMORANDUM ORDER

NEAHER, District Judge.

 Plaintiff invokes this Court's jurisdiction pursuant to 28 U.S.C. § 1343 to seek redress under 42 U.S.C. § 1983 for an arrest allegedly made by two New York City police officers without probable cause. The case is before the Court upon defendants' motion to amend the answer to assert the defense of collateral estoppel and coincident motion for summary judgment upon that defense.

 The transcript of a state criminal trial, in which plaintiff was convicted of possession of stolen property, provides the basis for defendants' motion. They contend that the existence of probable cause to arrest plaintiff was determined in that trial and bars the instant suit.

 The trial record reveals that plaintiff was convicted of possessing a stolen automobile, which had been rented by his girlfriend from a Hertz facility at Chicago's O'Hare airport, using a false identification. Plaintiff was later apprehended by defendant police officers in Manhattan after he failed to stop for a red light and then parked the stolen vehicle in a bus stop. At trial the following colloquy occurred regarding the arrest of the plaintiff and the search of his person for evidentiary items.

 "MR. DOCKERY: I hate to bother the Court with what may be a trifling matter.

 "You recall in a brief bench conference this morning, in the course of the officer's [Fogarty's] testimony who is about to resume the stand, I asked to make very sure that the search which was to follow at the police station and the statements then taken, and all these things, that those would be probably [sic] structured.

 "The Court permitted me to wait until it became more timely.

 "Thereafter when these things were introduced into evidence I took objection and I also asked the Court to give me permission to renew an objection on a later date after cross-examination.

 "But at this point it must be clear that the items that were introduced have not been properly foundationed with respect to the propriety of such a thing as admissible evidence in this case.

 "I would therefore ask --

 "THE COURT: Based on the evidence I heard from this officer, the specific exhibits, driver's license, airline ticket, other property were the incidents of a lawful arrest.

 "Under the circumstances they were properly admissible.

 "There were no pretrial motions to suppress. I don't know what the basis would have been in making one, under the ...


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