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RODRIGUEZ v. CITY OF NEW YORK

June 5, 1996

MICHAEL RODRIGUEZ, NORMA RODRIGUEZ, ALAINA RODRIGUEZ and NEKO RODRIGUEZ, minors, by NORMA RODRIGUEZ, their natural mother and guardian, and ESTABANIS, Plaintiffs, against THE CITY OF NEW YORK, THE POLICE DEPARTMENT OF THE CITY OF NEW YORK, CAPTAIN JOHN J. COSTELLO and LIEUTENANT ROBERT McCARTHY, and Unknown Civilian or Sworn executive or Management Employees of the New York City Police Department, Defendants.


The opinion of the court was delivered by: PARKER

 Plaintiffs bring this action pursuant to 42 U.S.C. ยง 1983 alleging that employees of the New York City Police Department, including defendant Captain John J. Costello ("Costello") and Defendant Lieutenant Robert McCarthy ("McCarthy"), conducted unreasonable searches. Plaintiffs seek damages for three separate violations of their fourth and fourteenth amendment rights arising out of defendants' search of: (1) the Rodriguez home; (2) Michael Rodriguez's automobile; and (3) Michael Rodriguez's locker.

 Before the Court is Defendants' motion for summary judgment pursuant to Fed.R.Civ.P. Rule 56. For the reasons set forth below, the motion is granted.

 FACTS

 On September 25, 1992, John Young and Umberto Arroyo, Police Department detectives, were assigned to the 34th Precinct Detective Squad. At approximately 8:00 p.m. on September 25, 1992, the two were involved in the investigation of a double homicide at 176th Street and Amsterdam Avenue, New York. The victims were found in a parked car.

 Shortly thereafter, Arroyo drove the car to the 34th precinct garage, where Rodriguez was present. Since neither Arroyo, Young nor Rodriguez had a key to the trunk, Arroyo and Young attempted to force it open. At some point, Rodriguez left the garage but returned within approximately five minutes.

 A week later, at 11:55 A.M. on October 2, 1992, Young called the action desk at the Police Department's Internal Affairs Department ("IAD") to report a theft arising out of the homicide investigation. A police department employee ("investigator") interviewed Young on the telephone. The phone conversation was taped, and Lieutenant Robert McCarthy, an investigator with the Police Department's Internal Affairs Division, listened to it shortly after it was received. The following is a portion of the phone conversation:

 
Young: There was a homicide last week. And when the car was brought into the precinct to be vouchered, the trunk was searched, and money was found. And two officers took money, and I was standing there. And at the end of this, I was given money, and said, "Take this." And I said that I didn't want it. And they said, well, whether you take this or not" -- well, not they, one said it- "whether you take this or not, we'll say you took it; so you're involved, you might as well take it." So I took it and figured I'd better hold onto it, you know, as my only evidence.
 
* * *
 
Investigator: You said there was a homicide. Right?
 
Young: Right.
 
Investigator: And the trunk of the vehicle was searched?
 
Young: Right, at the precinct.
 
Investigator: . . . So one of the officers drove back the vehicle, and you followed in the RMP?
 
Young: In the department car, yes. . . and the vehicle was searched in the precinct, in the garage. And the money was found in the trunk.
 
* * *
 
Investigator: Now what did they say to you because they opened up the trunk in front of you, right?
 
Young: Well, one did.
 
Investigator: M'hm?
 
Young: When we pulled the car in, as far as I remember, the only key in the car ...

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