The opinion of the court was delivered by: Curtin, District Judge.
Plaintiff Berlinda Brundidge filed this action in February 1995
alleging that on the evening of November 20, 1993, defendants
violated 42 U.S.C. § 1983 and committed various tortious acts.
Currently before the court are motions in limine filed by both
parties, seeking the exclusion of certain evidence at trial.
See Items 53-57.
Defendants Lilton Kelley ("Kelley"), Henry Valez ("Valez"), and
Johnnie Walker ("Walker") are Detectives with the City of Buffalo
Police Department. Defendant Dennis Fitzgibbon ("Fitzgibbon") is
a Deputy Erie County Sheriff. In November 1993, defendants were
assigned to the Street Narcotics Attack Program, also called the
"SNAP" Unit. SNAP is a collaborative effort of City and County
law enforcement to eliminate narcotic sales within the City of
On the evening of November 20, 1993, defendants' SNAP Unit was
monitoring activity at 363 Plymouth Avenue. Suspecting that the
plaintiff was trafficking drugs out of the house, defendants
procured a search warrant for plaintiff's second floor apartment.
It is alleged that between 8 p.m. and 9 p.m., defendant Kelley
and another member of the SNAP Unit, acting undercover, entered
plaintiff's apartment hoping to exercise a "buy bust." Kelley
allegedly gave plaintiff some money, and plaintiff then left the
apartment promising to return in a minute with some crack
When plaintiff failed to return in fifteen minutes, Kelley and
the other undercover officer allegedly left plaintiff's apartment
and went downstairs to the lower apartment, where they were
joined by defendants Valez, Walker, and Fitzgibbon. Upon entering
the first floor apartment, defendants identified themselves as
police officers. What happened next is is the central issue in
this case. Plaintiff alleges that the male officers
strip-searched her in front of her friends and family. Defendants
deny that a strip search ever occurred. It is undisputed,
however, that plaintiff was arrested after some type of search of
her person revealed a bag of crack cocaine.
A grand jury indicted plaintiff on the felony crimes of
Criminal Sale of a Controlled Substance in the Third Degree (New
York Penal Law § 220.39) and Criminal Possession of a Controlled
Substance in the Third Degree (New York Penal Law § 220.16).
However, Erie County Court Judge Joseph P. McCarthy dismissed the
indictment, finding that the search and seizure of the plaintiff
were unlawful and in violation of plaintiff's constitutional
rights. Item 56, Exh. C.
The trial date for the current action is scheduled for December
13, 1999. For various reasons discussed below, defendants and
plaintiff request that this court determine whether certain
pieces of evidence and information are admissible at trial. In
this Circuit, the party seeking admission of evidence has the
burden of showing that the prerequisites for its admissibility
are met. Potamkin Cadillac Corp. v. B.R.I. Coverage Corp.,
38 F.3d 627, 632 (2d Cir. 1994).
A. Statements by William Ragan
At plaintiff's criminal trial, Assistant District Attorney
William Ragan stated on the record that: "[I]t is my opinion Your
Honor, that the arrest and the search were without legal
foundation and I concede that both the arrest and seizure was
[sic] illegal." Item 56, Ex B. Defendants argue that this
statement is hearsay and, thus, inadmissible at trial. Plaintiff
contends that Mr. Reagan's comment is admissible as an adoptive,
authorized, or vicarious admission under Rule 801(d)(2) of the
Federal Rules of Evidence.
Rule 801(d)(2) of the Federal Rules of Evidence states that an
admission by a party-opponent is not hearsay if it is:
offered against a party and is (A) the party's own
statement, in either an individual or a
representative capacity or (B) a statement of which
the party has manifested an adoption or belief in its
truth, or (C) a statement by a person authorized by
the party to make a statement concerning the subject,
or (D) a statement by the party's agent or servant
concerning a matter within the scope of the agency or
employment, made during the existence of the
relationship, or (E) a statement by a coconspirator
of a party during the course and in furtherance of
the conspiracy. The contents of the statement shall
be considered but are not alone sufficient to
establish the declarant's authority under subdivision
(C), the agency or employment relationship and scope
thereof under subdivision (D), or the existence of
the conspiracy and the participation therein of the
declarant and the party against whom the statement is
offered under subdivision (E).
According to plaintiff, Assistant District Attorney William
Ragan is an agent for the defendants because he represented the
County in its prosecution of plaintiff on her criminal
indictment. Plaintiff cites the Ninth Circuit's decision in
Hoptowit v. Ray, 682 F.2d 1237, 1262 (9th Cir. 1982), which
held that when a statement is "offered against a party and is . .
. a statement by his agent or servant concerning a matter within
the scope of his agency or employment, made during the existence
of the relationship," the law favors admission under Rule
801(d)(2)(D). Plaintiff also cites a Fourth Circuit decision,
holding that an extra-judicial admission made by the County
Attorney on behalf of the Sheriff was admissible. U.S. v.
Gregory, 871 F.2d 1239, 1243 (4th Cir. 1989).
Furthermore, plaintiff fails to present any evidence indicating
that any of the defendants manifested an adoption or shared a
belief in the statement Ragan delivered at plaintiff's criminal
trial. Defendants' arrest of the plaintiff on the evening of
November 22, 1993, demonstrates the opposite. As such, no
relationship exists between the ...