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BRUNDIDGE v. CITY OF BUFFALO

November 19, 1999

BERLINDA BRUNDIDGE, PLAINTIFF,
v.
CITY OF BUFFALO; R. GIL KERLIKOWSKE, COMMISSIONER OF POLICE, CITY OF BUFFALO; DETECTIVE L. KELLEY, D. FITZGIBBON, H. VELEZ, AND J. WALKER, OFFICERS OF THE CITY OF BUFFALO POLICE, DEFENDANTS.



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

  DECISION and ORDER

INTRODUCTION

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.

BACKGROUND

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 Buffalo.

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 cocaine.

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.

DISCUSSION

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).

However, Hoptowit and Gregory are factually distinct from the present case. In both of these cases, the court admitted statements from the attorneys who represented the defendants in civil actions. Assistant District Attorney Ragan never represented defendants in this civil suit brought by Ms. Brundidge. In fact, it is clear from Ragan's affidavit that his only involvement with the present case is that he represented the People of the State of New York (not a party to this suit) in the case of People v. Berlinda Brundidge (Erie County Indictment Number 93-2626-001). At no point during those proceedings did Ragan act on behalf of any law enforcement officers. It is also clear that Ragan is not and never has been an agent for the defendants, nor has he ever been given authority to speak on defendants' behalf.

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 ...


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