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HINTON v. GEARY

August 26, 1985

DAVID M. HINTON, Plaintiff, against DETECTIVE MICHAEL E. GEARY and POLICE OFFICER FRANK LUCERI, Defendants


The opinion of the court was delivered by: COOPER

IRVING BEN COOPER, D. J.

Plaintiff brings this action pursuant to the Civil Rights Act, 42 U.S.C. ยง 1983, seeking compensatory damages from defendants for alleged violations of his constitutional rights. We bifurcated the liability and damages issues; the question of liability was tried to the Court on November 27, 1984 and at its conclusion we reserved decision. The plaintiff filed his post-trial memorandum on March 1, 1985; defendants filed theirs on March 11. We undertake now to render judgment.

Facts

 On October 12, 1979 on Bronxwood Avenue in the Pelham Bay section of the Bronx, New York City, a robbery, rape and mutilation of a 26 year old partially deformed female named Francine Elveson took place on the roof of an apartment building there. (Tr. 83) *fn1" In pursuit of the perpetrator, the police followed a number of "leads." One such "lead" was designated "the unknown Jamaican." (Tr. 84) This person was suspected after the police were informed by two young boys that two days before the crimes were perpetrated they had seen a man on the same spot on the roof landing where Ms. Elveson's body was later discovered; further, that they had observed him there at a time of day similar to the time when the murder took place. They described him as black, with a goatee and mustache, medium "Afro" (hairstyle), about six feet tall, wearing an army fatigue jacket, and carrying a blanket and a knapsack. One of the boys thought he had a Jamaican accent. (Tr. 85; Ex. F)

 According to defendant Detective Geary, who had been assigned as the officer in charge of this investigation, the suspicions of the police were further aroused when a tenant in the same building "indicated seeing an unknown male black on the roof landing -- on the roof of said building where the deceased was found -- just basically that it was a person not known to them and didn't belong up there, and that was on the 29 of October" (Tr. 91-92; Ex. H) (17 days after the homicide). Based on these reports, a composite sketch was made of the "unknown Jamaican suspect."

 Seven months later, at approximately 2:30 P.M. on May 12, 1980, a police officer spotted plaintiff in the vicinity of the scene of the crimes and concluded plaintiff closely resembled the person depicted in the composite sketch. The police officer observed that plaintiff wore an army fatigue jacket, carried a knapsack (Tr. 96), and had a small beard and mustache (Tr. 44). The officer telephoned Detective Geary. Detective Geary in turn called Police Officer Luceri, and the two proceeded in the direction of the suspect. (Tr. 95-96) They approached the plaintiff, and according to the trial testimony of Detective Geary, Officer Luceri "indicated [to the plaintiff that he] was very, very similar to a sketch of -- to a person we were looking for as a possible suspect, or maybe even a witness in a crime, and that this individual fit that description very closely, not only as to appearance but as to what he was wearing, and that is the reason why he was being stopped and spoken to. And he introduced me at some point." (Tr. 98-99; see 21-23)

 The officers frisked plaintiff Hinton for weapons. (Tr. 21) They noted he did not have a Jamaican accent. According to plaintiff, he gave them permission to look in his knapsack (Tr. 34-35). Officer Luceri then took and brought it to the police station; it was given back to plaintiff after the interrogation. (Tr. 21-22) However, according to Detective Geary, "[t]he knapsack was secure with straps on both sides and it was on his back so I had no immediate concern as to a problem with that." (Tr. 103)

 Plaintiff was given his Miranda rights (Tr. 23). The officers told him that jewelry was missing from the victim of the crime they were investigating. (They did not tell plaintiff that homicide ensued.) When they asked plaintiff where he resided he said, "up the block" (a few blocks away). (Tr. 26) The officers asked him if he would have any objection to the officers searching plaintiff's apartment for the jewelry. (Tr. 99-100) Detective Geary testified:

 
Mr. Hinton at that point asked me -- asked us if he had to do this, and we said no, that we were not compelling him to do anything, it was his free will. It would assist us, it would clear him if he had nothing to do with this, it would certainly make my job easier, and if his intent was to get us, so to speak, off his back, like he had stated earlier, that would certainlybe a way to do it.
 
I told him that if he refused that I would attempt to get a court order to search the premises.
 
He told me that wouldn't be necessary, that he has nothing to hide, and that if I promise not to mess up the apartment, that he would be happy to let us in to look for the jewelry.

 (Tr. 102) Plaintiff, on the other hand, testified that no one told him that he had a right to refuse to allow the apartment search, and "if I didn't let them in they would send me to Riker's Island until they able to get, how could you say, the court order saying they got the permission to search it." Plaintiff also testified that he told the officers that he thought they needed a warrant. (Tr. 26-28) However, on cross-examination, in response to the question: "Isn't it the fact that the reason you agreed was because you wanted to clear your name, to show them that you had no jewelry...in your room?" plaintiff responded: "I did, I did." (Tr. 38)

 The apartment search revealed no jewelry from the Elveson homicide. The officers found jars filled with plaintiff's saliva and urine and books containing pornographic material. They also discovered plaintiff's army discharge papers, which indicated that plaintiff's blood type was "O." (Tr. 105, 136; Ex. 5) About that time the officers further informed plaintiff that the crime they were investigating involved not only a robbery but that the victim had also been assaulted and bitten. (Tr. 43)

 At the conclusion of the apartment search the officers asked plaintiff to accompany them to the police station for further questioning. (Tr. 108) They explained that since plaintiff had indicated that he worked in the vicinity, they thought he might be able to provide information leading to discovery of the perpetrator of the crimes. (Tr. 109) They also informed plaintiff that they wanted to take him to a dentist's office to have molds of his teeth taken because (according to Detective Geary) there was

 
one positive way of identification in this case and that's the teeth. There are no witnesses to the case and there's only one way that this can be accomplished, and the teeth will either make you the person who committed the crime or it will eliminate you completely. If that's the case, which you are claiming it is, we would have no reason at all to ever speak to you again.

 (Tr. 108-09)

 According to plaintiff, he was taken to the station house, was asked questions and photographed. (Tr. 30-31) On cross-examination, in response to the question: "Isn't it a fact that you agreed to go to the police station with them because you believed that that was how you would clear up the matter?" plaintiff answered, "I did." (Tr. 42)

 The dentist, Dr. Arthur Goldman, was available within a short period of time after plaintiff arrived at the station house. According to Detective Geary:

 
Mr. Hinton had expressed his concern about going to the dentist and I informed him that he was not -- it was not something that he had to do, we were not forcing him to do it, he could refuse. But I also informed him that I would do my best to get a court order to force the issue if I had to go that far. I informed him that it was a painless procedure and that we ...

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