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LEWIS v. CITY OF MT. VERNON

November 13, 1997

JOSEPH LEWIS, AVIS LEWIS, JEANEANE LEWIS, individually and by her parents Joseph Lewis and Avis Lewis; MELLONIE LEWIS, individually and by her parents Joseph Lewis and Avis Lewis, and CARMEN PAULINO, individually and by her parents Martin Paulino and Therese Paulino, Plaintiffs, against THE CITY OF MOUNT VERNON, MOUNT VERNON POLICE DEPARTMENT; RALPH FATIGATE, individually and in his official capacity as Commissioner of the Mount Vernon Police Department; MICHAEL MOSCA, individually and in his official capacity as a Captain in the Mount Vernon Police Department; ROBERT KELLY, individually and in his official capacity as a Lieutenant in the Mount Vernon Police Department; RICHARD MORRA, Shield # 34; DETECTIVE MICHAEL LaROTUNDA, Shield # 19; DETECTIVE MARIO MANGANIELLO, Shield # 10; P.O. COURTNEY BESLEY, Shield # 107; DETECTIVE THOMAS LUISA, Shield # 7; and DETECTIVE SERGEANT ANGELO R. FUCCILLO, Shield # 3, each individually and in their respective capacities as officers of the Mount Vernon Police Department, Defendants.


The opinion of the court was delivered by: PARKER

 BARRINGTON D. PARKER, JR., U.S.D.J.

 INTRODUCTION

 Plaintiffs have brought this action pursuant to 42 U.S.C. § 1983 and related state laws, alleging violations of their Fourth Amendment right to be free from unreasonable searches and seizures. Defendants have moved for summary judgment pursuant to Fed. R. Civ. P. 56., in part on the basis of qualified immunity. For the reasons stated herein, defendants' motion for summary judgment is granted.

 BACKGROUND

 This case arose from the execution on July 14, 1994 of a "no knock" search warrant by members of the Mount Vernon, New York police department at an apartment in a multifamily building. The officers searched the home of plaintiffs Joseph Lewis and Avis Lewis and their family, who occupied a first floor apartment at 318 South Sixth Avenue, a three story building with one apartment on each floor. The Lewis family was not the focus of the investigation that led to the issuance and execution of the search warrant. Nor was any member of their family involved in any criminal activity.

 The target of the search was the apartment used by an individual named Charles Bowen, whom Mount Vernon police reasonably believed was engaged in drug trafficking. Contrary to the information obtained by the police and upon which they and the magistrate relied, however, it appears that at the building in which the Lewis family lived, Bowen was connected to the second floor apartment, not the first floor apartment. The primary issue on this motion is whether the officers' reliance on erroneous information in obtaining and executing the warrant authorizing the search of the Lewis' apartment means that the officers are not entitled to qualified immunity. The facts, which are not substantially in dispute, follow.

 The search grew out of a narcotics investigation by the Mount Vernon police department that focused on Charles Bowen, whom the police suspected of involvement in the distribution of large quantities of cocaine. Two individuals had separately linked Bowen to 318 South Sixth Avenue. One of these individuals was a confidential informant, who had previously assisted the Mount Vernon police department in successful investigations of illegal drug activity. The informant told Detective Morra that he knew Bowen and that Bowen used 318 South Sixth Avenue, where his girlfriend lived, as one of his residences and as a base for his drug activity. In addition, the informant indicated that Bowen drove a green Ford Mustang convertible, bearing North Carolina license plate HSH8548.

 On July 13, 1994, Harris gave a detailed written statement regarding Bowen's drug activities at 318 South Sixth Avenue. Harris' statement indicated that the previous day, July 12, 1994, he had accompanied Bowen in a Green Ford Mustang from a nearby playground to 318 South Sixth Avenue, where two women, who appeared to be in their twenties, greeted them. According to Harris' written statement, Bowen and Harris entered the first floor apartment, and then went into the basement where Bowen displayed to Harris a brick-sized package of what appeared to be cocaine and stated that he had 30 kilograms of cocaine which he planned to transfer to North Carolina within the week.

 Based on a photograph provided by the Greensboro, North Carolina police department, both Harris and the informant positively identified Bowen. Mount Vernon police also confirmed that Bowen may have been involved in prior drug activity, having been arrested in North Carolina in 1991 for possession of crack cocaine with intent to distribute. Morra had also observed the green Ford Mustang parked in front of 318 South Sixth Avenue.

 With this information in hand, the next morning, July 14, 1994, members of the Mount Vernon police department established surveillance of 318 South Sixth Avenue and Detective Morra prepared an application for a search warrant. The application described the information independently provided by the informant and by Harris, and included a copy of the sworn statement signed by Harris. The application also noted Morra's observations of the green Mustang in front of the building. The information supplied by Harris was the only information linking Bowen to the first floor apartment, rather than to the building generally. The Administrative Guidelines of the Mount Vernon police governing the use of confidential informants classify "wanted persons" as a precluding characteristic, making it undesirable to use such persons as informants except in extraordinary circumstances.

 At approximately 9 p.m. that evening, the surveillance team observed Bowen exiting 318 South Sixth Avenue and entering the Ford Mustang. The vehicle was stopped and Bowen was taken into custody for questioning. However, because the police did not at that time have a warrant for the search of the vehicle, they allowed Bowen to leave it parked and locked.

 That same day a Mount Vernon City Court Judge reviewed the warrant application, including a supplemental affidavit Detective Morra had completed after conferring with an Assistant District Attorney about the appropriateness of requesting a "no knock" provision in the warrant. In the warrant application, the only areas of 318 South Sixth Avenue that Detective Morra requested authorization to search were the first floor and the ...


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