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June 25, 1999


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


Judges are often advised to reserve on mid-trial motions if they have any doubt whatsoever about granting them, and to submit the case to the jury in the hope that its verdict will moot the issue. Occasionally, a judge regrets following that advice. In this case, it was clearly wrong for me to do so.

Insofar as is important, this case concerned a warrantless seizure of a number of guns from the rear of the Fishkill premises known as Manny's of Fishkill, a combination barber shop and licensed firearms dealership run by Manuel Alvarez and his wife, Catherine. Mr. Alvarez was arrested on January 29, 1992, after being indicted for his alleged participation in an unsolved and mysterious armed jewel heist in Poughkeepsie. Mr. Alvarez was, at the same time, the target of a Dutchess County District Attorney's Office investigation into defaced firearms that had ended up in the hands of juvenile criminals; some of the firearms that were the subject of that investigation had been traced to the Alvarez's gun shop.

Shortly after Mr. Alvarez was arrested on the robbery charge and removed from his shop, the New York State Police returned with a search warrant, issued by Judge Francis Cross of the Fishkill Town Court, that authorized them to search for ". . . any records or books relating to the purchasing or sale of firearms, any state or federal dealer licenses for firearms, and any tools or equipment used for the defacement of firearms." (Plaintiffs' Ex. 30, Search Warrant issued by Hon. Francis Cross, dated January 29, 1992.) The search warrant did not authorize a search for or the seizure of any guns. Nonetheless, the State Troopers who arrived at the premises found a number of guns stored in boxes in the back room at Manny's of Fishkill. At least one of the troopers, defendant Frank Borbolla, inspected some of those guns, unwrapping them, removing them from the boxes and taking off the handles or removing the slides to inspect their serial numbers. None of the guns examined was in any way defaced. Nonetheless, the troopers seized them, along with the Alvarezes' State and Federal gun licenses, gun sale records and a box of various tools.

The guns were held in storage for several months, during which period the indictment against Mr. Alvarez was dismissed on a technicality. He was not re-indicted. Nonetheless, the State police did not return the guns to the plaintiffs, and attempts by Mr. Alvarez's criminal attorney over several months to get the guns and other property back were unsuccessful. At some point in late 1992 or early 1993, the guns were transferred to the Federal Bureau of Alcohol, Tobacco and Firearms (ATF). An investigation was begun by the United States Attorney, and in March 1994, Mr. Alvarez pled guilty to a Federal misdemeanor charge of not keeping accurate and appropriate gun records. Mr. Alvarez was placed on probation for two years, during which time he was not allowed to sell guns. His wife, who was also a licensed firearms dealer, was still able to sell guns, and the sentencing court gave Mr. Alvarez permission to assist her in liquidating the inventory from his old business. The Alvarezes, however, never picked up the guns from the ATF.

They did bring the instant action, in which they allege, inter alia, that the seizure of the guns violated their Fourth Amendment rights. That charge, along with a charge of use of excessive force during Mr. Alvarez's arrest, was tried to a jury from January 11-27, 1999. At various times during the trial, the plaintiffs asked the Court to rule that they were entitled to judgment as a matter of law on the search and the seizure claims (Tr. 1049 lines 1 - 6; Tr. 1138 lines 1 - 8). Plaintiffs also moved specifically to dismiss the trooper defendants' plain view and qualified immunity defenses to the search and seizure claims. (Tr. 1028 line 17 - 1029 line 10; Tr. 1076 lines 21 - 24.) The Court granted the motion to dismiss the plain view defense (Tr. 1040 line 22 - 1046 line 12; Tr. 1049 line 8 - 1052 line 2), but reserved on the other motions and continued the trial. (Tr. 1049 lines 7-9; Tr. 1052 lines 7 - 11; Tr. 1062 lines 14 - 20; Tr. 1076 line 21 -1077 line 5; Tr. 1138 line 19 - 1140 line 10.)

At the conclusion of the trial, the jury found that two of the six New York State Trooper defendants, Senior Investigator Robert Schraff and Investigator Frank Borbolla (hereinafter, "the defendants"), had unlawfully seized items, including several guns, from Manny's of Fishkill on January 29, 1992. (See Schraff and Borbolla Verdict Forms, Question 1, attached as Ex. E to the Affidavit of Lewis B. Oliver, Jr. ("Oliver Aff.").) Confronted with a confusing verdict form (for which the Court takes full responsibility), the jury also found that the guns were not seized "intentionally or recklessly" (see Schraff and Borbolla Verdict Forms, Question 3, attached as Ex. E to Oliver Aff.) — despite the fact that defendants Schraff and Borbolla admitted that they knew they were seizing guns, knew that guns were not listed in the search warrant, and made a conscious decision to take the guns from the shop. As a result of its response to Question 3, the jury found both of the defendants not liable to the Alvarezes for damages resulting from the seizure.*fn1

Plaintiffs have moved for a post-trial judgment as a matter of law as against defendants Schraff and Borbolla pursuant to Federal Rule of Civil Procedure 50(b), and, alternatively, for a new trial against those defendants pursuant to Federal Rule 59. In addition, the Court has before it plaintiffs' motions for a directed verdict, on which I reserved during the course of the trial.

After reviewing the record, I conclude that I should have directed a verdict on the search and seizure claims (as to liability only) in favor of plaintiffs and against defendants Schraff and Borbolla at the close of all the evidence. The plaintiffs were entitled to judgment as a matter of law because the only reasonable view of the evidence was that the guns were seized unlawfully and that the defendants were not entitled to qualified immunity to protect them against the consequences of their actions.

Indeed, the jury found that the defendants were not entitled to qualified immunity for the seizure, because they found the seizure to be unlawful. The jury's conclusion that the defendants did not seize the guns intentionally or recklessly — a question they should never have been asked with respect to the seizure claim — is not supported by the evidence presented at trial. Viewing the evidence in the light most favorable to the defendants, as I must on a motion for judgment as a matter of law, I find that no reasonable or fairminded juror could have found no liability for seizure of the guns. There was no evidence presented at trial from which the jury could have found that the defendants seized the guns accidentally or mistakenly, rather than purposely. To the contrary, defendants Schraff and Borbolla testified that they made a conscious decision to seize all the guns and did so on purpose. Moreover, a finding of lack of intent is inconsistent with the jury's conclusion, in response to Question 1, that the defendants unlawfully seized the guns from plaintiff's shop.

Plaintiffs' motion for judgment as a matter of law as against defendants Schraff and Borbolla for the seizure of the guns is granted. Plaintiffs are at the very least entitled to an award of nominal damages, and possibly to compensatory and/or punitive damages for the violation of their Fourth Amendment rights. Therefore, I order a new trial, limited to the amount of damages owed to plaintiffs. Plaintiff's alternative motion for a new trial as to liability is denied.


The facts underlying this action are not complex. Mr. and Mrs. Alvarez were at all relevant times duly licensed firearms dealers, who operated a legitimate gun shop out of Mr. Alvarez's barber shop. Mr. Alvarez had been under investigation for some months by the Dutchess County District Attorney's office on two separate matters: as an alleged accomplice in a well-publicized robbery that took place in Poughkeepsie in September 1991 (Mr. Alvarez's highly distinctive car was used as the getaway vehicle), and as a possible supplier of defaced firearms to juveniles or others. On January 29, 1992, officers from the New York State Police and the Town of Poughkeepsie Police came to the plaintiffs' place of business, Manny's of Fishkill in Fishkill, New York, to arrest him (and one of his employees, Michael Archer) after the primary suspect in the robbery, one Edwin Garcia, became aware that he was under police surveillance and was quickly placed under arrest. Several officers from the Town arrived at Manny's, placed Mr. Alvarez and Mr. Archer under arrest, and transported them to the Town of Poughkeepsie police station.

Later the same day, Senior Investigator Robert Schraff of the New York State Police swore out an application for a search warrant for Manny's of Fishkill before Judge Francis Cross of the Town Court of the Town of Fishkill. Senior Investigator Schraff sought the search warrant in connection with the Dutchess County DA's investigation into firearm defacement. The warrant issued by Judge Cross authorized the officers as follows:

  To any police officer of the NEW YORK STATE POLICE
  (a) You are hereby authorized and directed to search
  for and to seize the following property: ANY RECORDS

Plaintiffs' Ex. 30, Search Warrant issued by Hon. Francis Cross, dated January 29, 1992.

Senior Investigator Schraff and several other members of the State Police came to Manny's of Fishkill late in the evening on the 29th to execute the warrant. Also present during the execution of the search warrant were two Assistant District Attorneys who were involved in the investigation. Mrs. Alvarez was at the shop briefly. Mr. Alvarez was still in custody.

According to testimony by both defendants Schraff and Borbolla, once inside Manny's, they proceeded to search the shop for the items specified in the search warrant and seized approximately 33 items, including firearms records, firearms licenses, and some tools that they believed could be used to deface firearms. (Tr. 651 lines 10-15; Tr. 701 lines 16-18; Tr. 764 lines 10-23; Tr. 836 lines 11-14.) Investigator Schraff testified that the tools seized, which included a center punch and a hammer, were taken from the rear office of the shop. (Tr. 701 line 20 - 702 line 6.) In this same rear office, in the vicinity of the tools, the defendants also found some 16 or 17 handguns. (Tr. 702 lines 7 - 17; Tr. 703 lines 13-20; Tr. 848 lines 18-24.) Investigator Schraff testified that the guns were in boxes and on shelves in the back office, and that they were not tagged or in any other way marked so as to indicate that they were for sale. (Tr. 702 line 18 - 704 line 11.) Investigator Schraff testified that the guns were not seized at first, but were taken and recorded on the property seizure inventory after conversations where one or both of the ADAs were present. (Tr. 706 lines 11 - 15; Tr. 779 line 9 - 781 line 22.) Investigator Borbolla testified, similarly, that he was involved in seizing tools from the shop, as well as guns. (Tr. 836 lines 11 - 14; Tr. 848 lines 5-8.)

Investigator Schraff stated at trial that he knew that the search warrant did not authorize the seizure of guns, but that "[the guns] were in the same vicinity as the defacing tools, and . . . [t]hey were obviously not for sale." (Tr. 705 lines 22 - 25; Tr. 780 lines 13-17.) The defendants specifically testified that during the search and seizure Investigator Borbolla opened and closely inspected several of the guns, with an eye to determining if they were defaced. (Tr. 786 line 11 - 787 line 17; Tr. 788 line 24 - 790 line 4; Tr. 801 lines 7 - 13.) Despite their finding that none of the guns appeared to be defaced — and despite the fact that the search warrant did not authorize the search for or seizure of guns — the defendants seized all the guns that were found at Manny's of Fishkill (a total of approximately 18 weapons). All of the items seized from the shop were brought back to the Fishkill barracks and secured in the Fishkill evidence locker. The guns were then sent to Albany so that the serial numbers could be checked for defacement or for use in crimes. The guns were returned from Albany with a state police laboratory report showing that each one came up clean.

Having admitted to seizing property that was clearly outside the scope of the search warrant they had obtained, defendants Schraff and Borbolla offered two defenses to the seizure at trial.

First, the Trooper defendants argued that they were entitled to seize the guns from Manny's under the "plain view" exception to the prohibition against warrantless searches. The defendants sought to convince the jury that it was immediately apparent to them, upon observing items in plain view in the shop, that the guns were evidence of a crime. As such, they argued, they were entitled not only to pick up and inspect the guns, but to seize them without a warrant.

At the close of defendants' evidence, the Court granted plaintiffs' motion for a directed verdict as to the plain view defense. (Tr. 1040 line 22 - 1046 line 12; Tr. 1049 line 8 - 1052 line 2.) The testimony showed that the State Trooper defendants knew Manuel Alvarez and were familiar with his barbershop/gunshop, Manny's of Fishkill. They knew he was a licensed gun dealer and that he had a legal right to possess firearms. They knew they were searching a gun shop, so the fact that they found guns could hardly have come as a surprise. And, by defendants' own admission, they were involved in a gun defacement investigation and none of the guns they saw in the shop showed any sign whatsoever of being defaced. Thus, based on the defendants' testimony, the plain view exception to the warrant requirement failed as a matter of law.

The defendants' second defense to the seizure of the guns was that they were entitled to qualified immunity because of advice rendered by the two Assistant District Attorneys who were present during the search. The defendants testified that ADAs Edward Whitesell and Marjorie Smith told them to seize the guns, and they asserted that their actions in following the ADAs' alleged advice were objectively reasonable under the circumstances. They could not, however, remember precisely what it was that the ADAs told them. (Tr. 780 line 17 - 781 line 22; Tr. 809 line 12 - 810 line 3.) ADAs Whitesell and Smith testified that they did not recall being asked by the defendants about seizing the guns and could remember giving no advice to the troopers on the subject. (Tr. 1086 line 15 - 1089 line 6; Tr. 1101 line 18 - 1103 line 19.)

At the close of the evidence, plaintiffs moved for a directed verdict on the qualified immunity defense. (Tr. 1076 lines 21 - 24.) The Court reserved on the motion and submitted the question of qualified immunity to the jury. ...

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