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April 9, 1996

DARRYL J. WOODS, Plaintiff, against JOSEPH CANDELA, Defendant.

The opinion of the court was delivered by: BRIEANT

 Brieant, J.

 Plaintiff Darryl Woods commenced this action on May 6, 1993. Plaintiff claims that Trooper Candela's conduct caused his unjust and unlawful conviction and incarceration, and deprived him of his rights not to be subjected to unreasonable searches and seizures, not to be arrested without probable cause, to remain silent, not to be deprived of liberty without due process of law, to the equal protection of the laws, and substantive due process. On June 25, 1993, the district court (Goettel, J.) granted defendant's motion to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6) on the ground that plaintiff's claims were barred by the applicable three year statute of limitations and did not fall within any applicable tolling rules. Woods v. Candela, 825 F. Supp. 43 (S.D.N.Y. 1993).

 The Court of Appeals for the Second Circuit affirmed. 13 F.3d 574 (2d. Cir. 1994). Mr. Woods then filed a petition for certiorari to the United States Supreme Court. In October 1994, the Supreme Court of the United States granted Woods' petition, vacated the decision of the Court of Appeals and remanded the matter for further consideration in light of the Court's decision in Heck v. Humphrey, U.S. , 115 S. Ct. 2364 (1994). See Woods v. Candela, 130 L. Ed. 2d 5, U.S. , 115 S. Ct. 44 (1994).

 Our Court of Appeals thereafter held that the plaintiff's action was timely, and remanded the matter for further proceedings. 47 F.3d 545 (2d Cir. 1995). Candela then filed a petition to the Supreme Court for certiorari which was denied, U.S. , 116 S. Ct. 54, 133 L. Ed. 2d 18 (1995), and the matter is now before this Court for further proceedings.

 This action arises out of an incident that occurred in the late afternoon of September 25, 1989. The following facts were recited in the decision of the New York Supreme Court, Appellate Division, Second Judicial Department, 189 A.D.2d 838 (2nd Dep't.1993) and have been adopted by the plaintiff. At approximately 5:34 p.m. on that day, plaintiff was driving his automobile, a blue 1978 Toyota with heavily tinted windows, in Newburgh, New York. New York State Trooper Candela, defendant here, observed the plaintiff's car pass his patrol car as it traveled in the opposite direction. Trooper Candela was aware that a small blue vehicle with tinted windows had been seen several days earlier in the vicinity of two hotel robberies and also in the parking lot of a hotel when a larceny was discovered. Because of this information Trooper Candela made a U-turn and was directly behind the Toyota when it stopped behind a discharging school bus.

 Plaintiff Woods, the driver of the vehicle, exited and approached Candela's car while his passenger remained seated. Woods asked Candela if Candela was going to pull him over. Candela in turn asked Woods why he would ask such a question. Woods replied that the state police had pulled him over earlier, perhaps because of his tinted windows or "maybe they think I'm a drug dealer." Woods identified himself and told Candela that he was a security guard. Candela then instructed Woods to find a place to pull over by the side of the road, out of traffic.

 Once out of the roadway, Candela approached the driver's side of Wood's vehicle. Candela asked Woods for his driver's license, registration, and insurance information for his vehicle. Woods produced the registration and a non-driver's I.D. card. Trooper Candela than asked Mr. Woods if he had access to any weapons. Woods then produced a nightstick from under the driver's seat. When asked if he had a certificate for the nightstick, Woods replied that he did but that he did not have it with him. Trooper Candela then asked Woods if he had any other weapons in the car. Woods responded that he did not and offered to allow him to search the car. Trooper Candela than patted down Mr. Woods and searched the driver's side and rear seat areas of the car. No contraband or weapons were found. Trooper Candela testified at a suppression hearing that the defendant then agreed to allow him to search the trunk and opened the trunk compartment for him. Trooper Candela found an army field jacket in the trunk and searched its pockets. He also observed a luggage case and asked the defendant what was inside of it. When the defendant replied that it was just clothing, Trooper Candela asked for permission to look inside. Although the defendant said the luggage would be hard to reach, he consented and crawled into the back seat in order to retrieve it. When the defendant handed him the luggage, Trooper Candela found that it was unzipped and contained only a flashlight, a T-shirt, and some wire. Trooper Candela testified that he then frisked the passenger and searched the front passenger area and the glove compartment before again looking into the rear seat area. On the seat were an air rifle, a green cap, and a black cloth with two holes in it that had not been there earlier. In response to his questions, the defendant said that the air rifle was his and that he used it for dog training and target shooting. Trooper Candela told the defendant to get back in the car and called the police station to ask for backup and to inform them that he had an armed robbery suspect.

 Trooper Candela testified he was aware that there had been six hotel robberies in recent weeks in the area. The perpetrator had been described as wearing an army jacket and a black face mask and carried a sawed-off rifle or shotgun. After calling for backup, Trooper Candela said he advised the defendant that he was under arrest for criminal possession of a weapon in the fourth degree (the nightstick). The defendant was searched and placed in handcuffs. Trooper Candela advised the defendant of his Miranda rights in the patrol car, and Mr. Woods denied involvement in any robberies. At the police station, the defendant signed a form consenting to the search of his vehicle on the highway and to an additional search of the vehicle at the police station. After his arrest, the defendant was interviewed by an investigator and gave a statement. He was issued summonses for driving without a license and for having excessively tinted windows in his vehicle. The State court refused to suppress the physical evidence found in the Toyota and the defendant's statements to the police. That court determined that the defendant was not in custody until he was placed under arrest, and that he consented to the search of his vehicle. Once the mask, army clothing, and air rifle were discovered, Trooper Candela had probable cause to arrest the defendant. The court determined that the defendant voluntarily waived his Miranda rights. After a trial, the defendant was convicted of robbery in the first degree in connection with the robbery of a restaurant and criminal possession of a weapon in the fourth degree (the nightstick).

 The Appellate Division, Second Department, reversed, People v. Woods, 189 A.D.2d 838, 592 N.Y.S.2d 748 (1993) holding that while the excessively tinted windows justified the traffic stop, the scope of the search and questioning by Trooper Candela to matters unrelated to traffic violation were unreasonable and that the fact that Woods worked as a security guard did not justify search for weapons and further that Woods oral consent to search of vehicle is not shown to have been voluntary.

 Trooper Candela now moves for summary judgment in his favor pursuant to Rule 56 of the Federal Rules of Civil Procedure on the ground that there is no genuine issue of material fact and he is entitled to judgment as a matter of law. In the alternative, he claims is entitled to qualified immunity. The plaintiff opposes Trooper Candela's motion primarily on the ground that Candela is estopped from relitigating the issues already determined by the state appellate court.

 The doctrine of collateral estoppel may only be applied if the following elements are established: (1) the party against whom collateral estoppel is asserted must have been a party, or in privity with a party, to the prior action; (2) there must have been a final determination of the merits of the issues sought to be collaterally estopped; (3) the issues sought to be precluded must have been necessary, material, and essential to the prior outcome; (4) the issues sought to be precluded must have been actually litigated in the prior action, with the party against whom estoppel is asserted having had a full and fair opportunity to litigate the issues; and (5) the issues actually and necessarily decided in prior litigation must be identical to the issues sought to be estopped. GAF Corp., v. Eastman Kodak Co., 519 F. Supp. 1203, 1211 (S.D.N.Y. 1981).

 The Fourth and Fifth Amendment of the United States Constitution set only the minimum that is required. States are free to enact or to create by judicial fiat provisions additional privileges and immunities going beyond requirements found in the United States Constitution. New York State through its courts, has chosen to expand upon the constitutional protections in several areas, one of which is a person's right to be free from unreasonable search and seizures. See, People v. Hollman, 79 N.Y.2d 181, 581 N.Y.S.2d 619, 590 N.E.2d 204. The decision of the Appellate Division in Wood's underlying criminal trial is an example of New York State's stricter requirements in the context of the legality and scope of searches and seizures in criminal cases. The Appellate Division overturned the finding of the defendant's guilt based upon Mr. Wood's rights under Constitution and the laws of New York State. Insofar as concerns federal law the search and arrest were valid.

 In this action, Mr. Woods raises a claim that his federal constitutional rights were violated. Because of the heightened standards required in New York prior to effectuating a valid traffic stop, search and arrest, the issues actually and necessarily decided in the prior litigation are not identical to the issues sought to be estopped in this action. As such, collateral estoppel is inappropriate on these facts. Our Court of Appeals has held that "Whether a search and seizure is constitutional under the circumstances of a particular case, however, is determined by applying federal law. United States v. Scopo, 19 F.3d 777 (2d Cir. 1994) See also United States v. Pforzheimer, 826 ...

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