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January 11, 1990


The opinion of the court was delivered by: Mukasey, District Judge.


This case arises from a search by the New York Drug Enforcement Task Force, made up of officers from the Drug Enforcement Administration, the New York State Police, and the New York City Police Department, pursuant to a warrant, of three apartments at 143 Bruce Avenue in Yonkers on January 8, 1987. The Task Force suspected that these apartments were being used as a cocaine distribution center, and believed that this search would uncover a large shipment of cocaine. The search produced no evidence linking the apartments or inhabitants to drug distribution.

The officer who submitted the affidavit in support of the search warrants was mistaken in his expectation that the apartments were linked to a cocaine distribution ring. Law enforcement officers forcibly entered and searched plaintiffs' homes pursuant to a warrant based on that affidavit. Plaintiffs understandably believe that their rights were violated and seek legal redress. But just as a claim that the fruits of a search should be suppressed for lack of probable cause must be decided based only on what was known before the search, and specifically without considering that evidence in fact was found,*fn1 so too must a claim that plaintiffs' rights were violated for lack of probable cause be decided without considering that no evidence was found. That plaintiffs had no connection with the drug trade does not necessarily mean that the search of their apartments was unjustified.

The six plaintiffs are three couples who resided or were present in three of the ten apartments that were searched. The first couple, Santiago Mendez and Carmen Mendez, reside in apartment 2F and were present during the search. The second, Diana Penaloza Arce and Enrique Arce, reside in apartment 2J. Diana Penaloza Arce was present during the search, together with her infant. The third couple, Maria Rivera and Angel Santana, were in apartment 3D during the search; Maria Rivera resides in apartment 3D and Angel Santana was her guest.

Plaintiffs have sued the United States of America, the Drug Enforcement Administration of the United States Department of Justice, and 19 law enforcement officers who were members of the Task Force for allegedly violating several Constitutional, statutory, and common law rights. Specifically, plaintiffs allege that defendants violated their Fourth Amendment rights to freedom from unreasonable searches and seizures, their Fifth Amendment rights not to be deprived of liberty or property without due process of law and their right to equal protection of the laws under the Fifth Amendment*fn2 and 42 U.S.C. § 1981 and 1982.*fn3 Plaintiffs further allege that defendants committed the common law torts of false arrest, false imprisonment, malicious prosecution, trespass, assault, battery, intentional infliction of emotional distress, negligence, gross negligence, and prima facie tort.

As to each of plaintiffs' claims, defendants have moved to dismiss either because there is no claim upon which relief can be granted, Fed.R.Civ.P. 12(b)(6), or because there is "no genuine issue as to any material fact," and therefore the moving party deserves "judgment as a matter of law." Fed.R.Civ.P. 56(c). The standards governing such motions are familiar. Dismissal for failure to state a claim is required when "it appears beyond doubt that the plaintiff can prove no set of facts in support of [his] claim which would entitle [him] to relief." Lieberman v. Reisman, 857 F.2d 896, 898 (2d Cir. 1988), quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80. Summary judgment is called for when, after drawing all reasonable inferences in favor of the party against whom summary judgment is sought, no reasonable trier of fact could find in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Murray v. National Broadcasting Co., 844 F.2d 988, 992 (2d Cir. 1988), cert. denied ___ U.S. ___, 109 S.Ct. 391, 102 L.Ed.2d 380.


James Boylan, the case agent for the Task Force's investigation of the suspected narcotics operation, appeared before U.S. Magistrate Leonard Bernikow on January 7, 1987 to obtain search warrants for ten locations in Yonkers and the Bronx, including plaintiffs' apartments in Yonkers, apartments 3D, 2J, and 2F at 143 Bruce Avenue. The warrants authorized searches for cocaine, drug paraphernalia, drug records, firearms and other items related to the drug trade. The principal basis for seeking the warrants was information provided by a confidential informant (hereinafter "C/I"). (Boylan Aff. ¶ 3) For several months preceding the searches of January 8, 1987, Boylan had investigated a crack distribution organization in the Bronx led by Carlos Molina. Boylan learned from the C/I that in response to several police raids in October, 1986, the organization was moving its headquarters from the Bronx to 143 Bruce Avenue in Yonkers. The C/I informed Boylan that he had learned a shipment of cocaine would be arriving on January 7, 1987 and that he had recently seen large quantities of cocaine at 143 Bruce Avenue. Boylan was already familiar with 143 Bruce Avenue as a building known for a high volume of narcotics activity because in 1984, a raid on the building by the Task Force had yielded about 50 kilograms of cocaine, and in December 1986, a raid on the building had yielded approximately 20 kilograms of cocaine and over $700,000 in cash. (Boylan Aff. ¶ 8)

Boylan's affidavit to establish probable cause for the search may be fairly summarized as follows: First, Boylan asserted that the C/I told him that he had seen cocaine in apartments 4F (Molina's apartment), 3B, 2A, and 2H; second, Boylan asserted that the C/I told him that he had observed Molina use keys to open the doors to apartments 2F, 2H, and 2J; and finally, Boylan stated that the C/I had learned from Molina that Molina controlled apartments 2A, 2F, 2H, 2J, and 3D. Boylan checked the Con Edison records for all of those apartments. However, only the records for apartment 4F, listed to Molina, bore a familiar name. (Boylan Aff. ¶ 9)

The Task Force executed the ten search warrants simultaneously at approximately 6:00 a.m. on Thursday, January 8, 1987. A separate team supervised by one law enforcement official searched each apartment. Special Agent Timothy Sullivan of the Drug Enforcement Administration headed the team that searched Apartment 2F, occupied by plaintiffs Santiago Mendez and Carmen Mendez. Sergeant Thomas Murray of the New York City Police Department headed the team that searched apartment 2J, occupied by plaintiffs Diana Penaloza Arce and Enrique Arce. Sergeant William F. Cook of the New York City Police Department headed the team that searched apartment 3D, occupied by plaintiffs Maria Rivera and Angel Santana.

The Search of Apartment 2F

The Mendezes dispute Special Agent Sullivan's assertion that members of the search team knocked and announced their presence before employing a battering ram. (Mendez Aff. ¶ 7) It is not disputed that Santiago Mendez opened the door and admitted the police before the door was rammed through. Some members of the search team had their weapons drawn when they entered the apartment. Santiago Mendez asserted that when he demanded an explanation for the search, none was given. When asked if there were any guns or drugs in the apartment, Santiago Mendez led Officer Sullivan to his bedroom where he kept a gun and some marijuana, which he gave to the officer. The Mendezes were forced to sit in the living room while the officers searched the bedroom. Carmen Mendez asked but was denied permission to call her job to say she would be late. (C. Mendez Aff. ¶ 3) No cocaine was found in the apartment. At the conclusion of the search, the Mendezes were given a copy of the search warrant. The Mendezes assert that the C/I could not have observed Molina use keys to their apartment because they had never given keys to anyone. (Mendez Aff. ¶ 4)

The Search of Apartment 2J

The Search of Apartment 3D

Plaintiffs Rivera and Santana dispute Officer Cook's contention that a member of the search team knocked and announced the presence of police before beginning to batter the door. (Rivera Aff. ¶ 5, Santana Aff. ¶ 4) Plaintiffs and defendants agree that the officers entered the apartment with at least one weapon drawn. (Rivera Aff. ¶ 6; Cook Dec. ¶ 4) Plaintiffs Rivera and Santana assert that they were followed by officers who wore no uniform or displayed no form of identification. They were chased into the bedroom, forced to lie on the floor, put their hands behind their heads, and remain silent. Rivera avers that when she demanded to know what was going on, one officer forced her head to the floor with his foot, trained his shotgun at her head, and told her to "shut up and be quiet." (Rivera Aff. ¶ 7) Santana asserts that when he moved his head to look up, the shotgun was then trained on him. (Santana Aff. ¶ 7)

Rivera asserts that after a few minutes, she was told to stand and was given a copy of the search warrant. Santana was then led out of the bedroom. Although Rivera alleges she had already been patted down, she was then asked to take off all her clothes in front of three female officers near a bedroom window with no curtains. After having been visibly body searched, Rivera was handcuffed, hands behind her back, and taken to the living room. (Rivera Aff. ¶¶ 9, 10)

She and Santana were both forced to remain sitting on a mattress in the living room in handcuffs while the search proceeded. No drugs or weapons were found. (Cook Dec. ¶ 6) Nonetheless, many items were seized, allegedly for further investigation: Rivera's wallet with all her personal identification, telephone and Con Edison bills, her son's birth certificate, her driver's license, and personal photographs, among others. (Rivera Aff. ¶ 15; Santana Aff. ¶ 11; Plaintiffs' Brief at 49)

Officer Cook's description of the events differs in significant details. He asserts that both Rivera and Santana were searched for weapons and that Rivera was searched in the bathroom by one female Special Agent. He asserts also that the plaintiffs were seated on a couch during the search. (Cook Dec. ¶ 5) Officer Cook did not mention whether plaintiffs were handcuffed during the search or whether documents were confiscated.

I. Plaintiffs' Fourth Amendment Claims

a. Sufficiency of Probable Cause

Plaintiffs first challenge the sufficiency under the Fourth Amendment*fn4 of Boylan's affidavit to establish probable cause. The court that issues a warrant must determine probable cause or its absence in a "commonsense, practical" way, based on the "totality of the circumstances." Illinois v. Gates, 462 U.S. 213, 230, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527 (1983). "`[O]nly the probability, and not a prima facie showing, of criminal activity is the standard of probable cause.'" Gates 462 U.S. at 235, 103 S.Ct. at 2330 quoting Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 590, 21 L.Ed.2d 637 (1969). Furthermore, a search warrant is presumed valid. Franks v. Delaware, 438 U.S. 154, 171, 98 S.Ct. 2674, 2684, 57 L.Ed.2d 667 (1978). The reviewing court evaluating the sufficiency of an affidavit already accepted as sufficient by a magistrate must afford the magistrate's determination "`great deference.'" United States v. Leon, 468 U.S. 897, 914, 104 S.Ct. 3405, 3416, 82 L.Ed.2d 677 (1984) quoting Spinelli, 393 U.S. at 419, 89 S.Ct. at 590. This deference to the magistrate's finding of probable cause encourages law enforcement officers to submit their evidence to a judicial officer before acting. United States v. Beltempo, 675 F.2d 472, 478 (2d Cir. 1982); cert. denied 457 U.S. 1135, 102 S.Ct. 2963, 73 L.Ed.2d 1353 (1982); see also United States v. Travisano, 724 F.2d 341, 345 (2d Cir. 1983). As the Supreme Court wrote in Gates:

  [T]he traditional standard for review of an
  issuing magistrate's probable cause determination
  has been that so long as the magistrate had a
  `substantial basis' for . . . conclud[ing] that a
  search would uncover evidence of wrongdoing, the
  Fourth Amendment requires no more.

Gates, 462 U.S. at 236, 103 S.Ct. at 2331 quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, ...

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