The opinion of the court was delivered by: McAVOY, District Judge.
MEMORANDUM — DECISION & ORDER
Plaintiff commenced the instant action pursuant to
42 U.S.C. § 1983 claiming that a stop and search by Defendants New York
State Police Investigator Lance Aguiar and New York State Police
Trooper Barry Friedman violated her First, Fourth, Fifth,
Eighth, and Fourteenth Amendment rights. Presently before the
Court is Defendants' motion for summary judgment pursuant to
FED. R. CIV. P. 56 seeking dismissal of the Complaint in its
On December 6, 1998, at approximately 2:15 a.m., Plaintiff
Colene Garcia was driving a vehicle also occupied by three
males. Defendants Aguiar and Friedman were driving Westbound in
their trooper vehicle on State Route 299 in the Town of Lloyd
when they observed a vehicle traveling Eastbound at an
apparently high rate of speed. Trooper Friedman operated the
radar device and determined Plaintiff to be driving 66 miles per
hour in a 55 mile per hour zone. The Troopers then proceeded to
stop Plaintiffs vehicle for a violation of the New York State
Vehicle & Traffic Law.
Upon approaching the vehicle, the officers detected the scent
of burned marihuana coming from inside the vehicle. Friedman
inquired who had the marihuana. Plaintiff denied having any
marihuana. None of the other passengers responded to Friedman.
After obtaining Plaintiffs driver's license*fn2 and the
vehicle registration,*fn3 Friedman asked Plaintiff to exit
the vehicle. Friedman escorted Plaintiff to the front of the
police car and conducted sobriety tests, including a
breathalyzer test. Friedman then advised Plaintiff that he was
going to search her.
Friedman frisked Plaintiffs legs by "patt[ing] them down with
both hands on one leg and then c[oming] up and . . . put[ting]
his hands on the inner thigh up towards the groin area,
cupp[ing] it, and then c[oming] down the other side." Pl. Dep.,
at 63. Friedman then "came up and put his hand between
[Plaintiffs] breasts." Pl. Dep. at 68. More specifically,
Friedman ran the side of his hand, with the little finger
touching Plaintiff, perpendicularly down the middle of
Plaintiffs breasts. Next, Friedman "lifted one breast up and the
other one up and then he continued around the back." Pl. Dep. at
74. According to Plaintiff, Friedman "cupped the bottom half [of
her breast], lifted it up went to the other one, lifted the
other one. He didn't like grab my whole breast." Pl. Dep. at 75.
Plaintiff further testified that this was a fairly quick process
and Friedman "wasn't being perverted." Pl. Dep. at 76. Friedman
then patted down Plaintiffs rear pockets. At that point the
After Friedman concluded searching Plaintiff, Aguiar came over
with a marihuana pipe he had found in Plaintiffs purse*fn4
and inquired who owned the pipe. Plaintiff responded that it was
hers. The troopers found marihuana residue in the pipe.
Plaintiff was issued a speeding ticket and an appearance ticket
for the unlawful possession of marihuana. Plaintiff ultimately
pleaded guilty to a violation of N.Y. VEH. & TRAFFIC LAW §
1110(a) in satisfaction of the charges against her.
Plaintiff then commenced the instant action pursuant to
42 U.S.C. § 1983 claiming that she was unlawfully and/or improperly
restrained, searched, and imprisoned by Defendants. Compl. ¶ 15.
Presently before the Court is Defendants' motion for summary
judgment pursuant to FED. R. CIV. P. 56 seeking dismissal of the
Complaint in its entirety.
A. Summary Judgment Standard
In addressing Defendants' motion, the Court will apply the
familiar standard for summary judgment, which need not be
restated here. Roman v. Cornell Univ., 53 F. Supp.2d 223,
232-33 (N.D.N.Y. 1999); Phipps v. New York State Dep't of
Labor, 53 F. Supp.2d 551 (N.D.N.Y. 1999); Riley v. Town of
Bethlehem, 44 F. Supp.2d 451, 458 (N.D.N.Y. 1999).
B. Plaintiff's Opposition Papers
The Court rejected Plaintiffs opposition papers because they
failed to comply with N.D.N.Y.L.R. 7.1. On or about March 19,
2001, Plaintiff completed new opposition papers and served them
on Defendants along with a request for an extension of time
within which to file the opposition papers. Defendants then sent
the opposition papers and the request for an extension of time
to the Court for filing.