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FLORES v. CITY OF MOUNT VERNON

January 19, 1999

KAREN FLORES, PLAINTIFF,
v.
THE CITY OF MOUNT VERNON, MOUNT VERNON POLICE DEPARTMENT, DET. SGT. MARK HACKETT, SHIELD NO. 3, DET. BESLEY, SHIELD NO. 32, P.O. NYRITA SIERRA, SHIELD NO. 145, AND JOHN DOES 1-8, SHIELD NOS. UNKNOWN, JOHN OR JANE DOE 9, SHIELD NO. UNKNOWN, DEFENDANTS.



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

MEMORANDUM DECISION AND ORDER

ORDER GRANTING PLAINTIFF PARTIAL SUMMARY JUDGMENT AGAINST
  DEFENDANT DET. SGT. MARK HACKETT ON HER FIRST, THIRD, AND TENTH
  CLAIMS FOR RELIEF; AND AGAINST THE CITY OF MOUNT VERNON ON HER
  NINTH CLAIM FOR RELIEF; DENYING DEFENDANTS' CROSS-MOTION FOR
  SUMMARY JUDGMENT; DISMISSING PLAINTIFF'S TENTH AND ELEVENTH
  CLAIMS WITH RESPECT TO THE CITY OF MOUNT VERNON; AND DISMISSING
  PLAINTIFF'S FOURTH, FIFTH, SIXTH, AND SEVENTH CLAIMS IN THEIR
  ENTIRETY.

Before the Court are Plaintiff's motion for partial summary judgment and Defendants' cross-motion for summary judgment. Plaintiff's motion is granted in part and Defendants' cross-motion is denied.

I. Statement of Facts

The utterly outrageous facts of this matter are not in dispute. Indeed, on the record before me, they come almost entirely from the mouths of the Defendants. They are as follows:

On March 14, 1997, Cosenza swore out an affidavit for a search warrant based on the CI's report to him. The warrant authorized the Mount Vernon Police Department to search Frieary's Pub for evidence of narcotics and for a person named Shawn who conformed to the CI's description. Nothing in the CI's report to Cosenza, Cosenza's affidavit in support of the application for a search warrant or the search warrant itself made any mention of a Karen Flores, or for that matter any woman. There is no evidence in this record that she was even in Frieary's Pub on March 13, let alone that she was in any way involved in the sale of cocaine to the CI.

Det. Sgt. Mark Hackett, the commander of the Narcotics Unit for the Detectives Division of the Mount Vernon Police Department (the "Narcotics Squad"), decided to execute the warrant on the evening of March 20, 1997. Mrs. Flores, who had worked in the restaurant as a waitress/bartender for some four years, was on duty that evening. Prior to the execution of the warrant, Hackett held a brief meeting to mete out assignments. During that meeting, neither Hackett, Cosenza nor any other member of the Narcotics Squad discussed the contents of the search warrant, the evidence that had led to its issuance, the possibility that firearms might be present in the Pub, or the possibility that others besides "Shawn" might be involved in the sale of narcotics. As the Narcotics Squad set out to execute the warrant, not a single member of the team had a shred of evidence linking Mrs. Flores to any illegal activity that might have occurred, or might be occurring, at Frieary's Pub.

The Narcotics Squad entered Frieary's Pub at approximately 9:15 PM on the evening of March 20 and spent about an hour and a half searching the premises. A member of the team immediately detained Mrs. Flores, who was the only employee behind the bar. The officer ordered her to place her hands on the top of the bar, and she did so. Another officer brought her a stool and ordered her to sit with her hands on her lap while the Pub was searched. At all times during the search, Mrs. Flores was seated on the stool, in full view of the members of the team, who were searching the entire premises, including the bar area. The bar was square and had stools around its outside; Mrs. Flores was at all times inside the square.

The search party found no narcotics either on or behind the bar. There was some money on the bar, but Mrs. Flores identified it as tip money, and a member of the team, Officer Paul Puccini, put it in the tip jar for her. He did not believe, and had no reason to believe, that the money was somehow related to the purchase of cocaine. Almost as soon as he came into the Pub, Officer Puccini saw a patron of the bar, Gregory LaGuardia, pick up a packet from the bar which he thought contained cocaine. However, Officer Puccini did not see Mrs. Flores handle that item and, other than the fact that she was working behind the bar, he had no reason to associate her with the packet. A similar packet was later found on the floor adjacent to the bar, but not on the side of the bar where Mrs. Flores was working; it was dropped there by a patron, Peter Zeolla, as observed by Officer James Cosenza. Officer Puccini did not frisk Mrs. Flores, but he did search her pocketbook (even though he had no warrant authorizing him to search it and no reason to suspect that it contained a weapon that presented a danger to his person). Puccini did not see or hear Mrs. Flores do or say anything that led him to believe that she was involved with any criminal activity, and neither in his deposition nor in his affidavit did he indicate that he believed that she was so involved.

Frieary and three patrons of the Pub were arrested for possession of cocaine shortly after the police entered the Pub. Additional stash (cocaine and marijuana) were found in the basement of the premises, the cocaine in a filing cabinet and the marijuana inside a wall. Puccini informed Sgt. Hackett that his search of the area behind the bar had uncovered no evidence of criminality, and no other member of the Narcotics Squad said anything to Hackett to indicate that Mrs. Flores had committed or was about to commit a crime.

Nonetheless, at the conclusion of the search, Hackett ordered Mrs. Flores arrested. According to Hackett, he made this decision because (1) a number of patrons in the Pub possessed cocaine, (2) the controlled buy that took place a week earlier had been made over the bar (albeit after Frieary had gone into the back room), and (3) the police did not know who had gone to the back room with "Shawn" to get the cocaine a week earlier. See Dep. of Det. Sgt. Mark Hackett at 127-28.

At Hackett's order, Mrs. Flores was handcuffed and transported by Officer Besley to Mount Vernon Police Headquarters. Besley did not tell Mrs. Flores that she was being arrested for any crime; rather, he told her she was being taken into the station house to be searched. When they arrived at the station, Besley brought Mrs. Flores into a small, windowless room and asked a female member of the Narcotics Squad, Nyrita Sierra, to come to that room and search Mrs. Flores. Officer Sierra had not been a member of the team that executed the warrant in Frieary's Pub; she received her assignment in the station house, subsequent to Mrs. Flores's arrest. Officer Sierra forced Plaintiff to strip and subjected her to an invasive strip search, including an examination of her genitals and anus. Needless to say, nothing was found on Mrs. Flores's person. She was not charged and was allowed to leave the station house.

Mrs. Flores brought this action against the officers involved in her humiliation. She also sued the City of Mount Vernon, as it has a policy of strip searching every person who is arrested for narcotics-related activity, and she was searched pursuant to ...


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