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ELK v. TOWNSON

December 15, 1993

BRETT ELK, Plaintiff,
v.
DEPUTY JEFFREY TOWNSON, THE COUNTY OF PUTNAM, and THE PUTNAM COUNTY SHERIFF'S DEPARTMENT, Defendants.



The opinion of the court was delivered by: VINCENT L. BRODERICK

 VINCENT L. BRODERICK, U.S.D.J.

 I

 This case involves alleged violation of civil rights under 42 USC 1983 on grounds of false arrest and unreasonable search. The plaintiff Brett Elk ("Elk") brought this action against Deputy Sheriff Jeffrey Townson ("Officer Townson"), the County of Putnam (the "County") and the Putnam County Sheriff's Department (the "Sheriff's Department") (collectively, the "defendants"). The defendants have moved to dismiss the complaint under Fed.R.Civ.P. 12(b)(6) and for summary judgment under Fed.R.Civ.P. 56(b) based on qualified immunity.

 I consider both applications as motions for summary judgment *fn1" since both plaintiff and moving defendants have submitted affidavits and discovery has been completed. New York v. United States, 942 F.2d 114 (2nd Cir 1991), modified on other grounds 112 S. Ct. 2408, 120 L. Ed. 2d 120 (1992); Hadges v. Yonkers Racing Corp, 733 F. Supp. 686 (SDNY 1990). I grant the defendants' motions.

 II

 In the early afternoon of February 11, 1992 Elk and his friend Oliver *fn2" drove in Oliver's BMW (the "BMW") toward the local high school, allegedly to play soccer. At about 1:30 PM, Oliver parked the BMW in the parking lot of a sandwich shop (the "shop") next door to the school. Deputy Sheriff (then Investigator) Townson was parked in the same lot in an unmarked police van about 75 feet away from the BMW, surveilling the lot for possible narcotics activity.

 Officer Townson claims he observed Elk and Oliver smoking a marijuana cigarette immediately after parking the BMW. *fn3" Shortly thereafter, both Elk and Oliver got out and stood talking at the rear of the BMW. At about 1:40 PM a third person, William, came out of the shop and walked towards the BMW. Officer Townson claims that after a brief conversation William handed Elk money and Oliver handed William a quantity of what appeared to be marijuana in a plastic bag. Officer Townson radioed this information to two other officers (the "other officers") who were in the general vicinity.

 Elk, denying that he was involved in any illegal activity, claims that immediately after entering the parking lot he and Oliver left the BMW and soon met William, to whom Elk was introduced. Elk states that he then walked by himself to the high school to find other soccer players but was unable to do so. According to Elk, he rejoined Oliver and William a short time later in the parking lot, where the three kicked a soccer ball around. All three men then left in Oliver's BMW, headed for the school fields.

 What happened subsequently is undisputed. At about 2:00 PM, the other officers, responding to Officer Townson's call, followed the BMW and stopped it shortly thereafter. Officer Townson arrived a brief time later.

 The other officers informed Officer Townson that the vehicle had been searched, and that a film canister containing an indeterminate quantity of marijuana had been found between Oliver and Elk, the two front-seat passengers, within easy reach of Elk. Five small bags of marijuana were taken from Oliver's person, and two five dollar bills were found in Elk's pocket.

 All three occupants of the car were arrested and taken to the Sheriff's Department, where they were charged with criminal possession of marijuana in the fifth degree, under section 221.10 of the New York Penal Code, and criminal sale in the fourth degree, under section 221.40. On the arrest report, Elk initially gave his name as "Robert Elk". *fn4" Elk claims he was strip searched at the Sheriff's Department and then released.

 Oliver pleaded guilty to criminal possession of marijuana in the fifth degree, NY Pen L § 221.10, and William pleaded guilty to disorderly conduct. On October 7, 1992, Elk, who had no previous criminal record, signed a document releasing the District Attorney's office and the Sheriff's Department from civil liability in exchange for dropping the charges against him. Elk claims that he executed this ...


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