state law. The question is rather whether the search was
reasonable under the Fourth Amendment. Just as a search
authorized by state law may be an unreasonable one under that
amendment, so may a search not expressly authorized by state law
be justified as a constitutionally reasonable one."); Tucker v.
County of Jefferson, 110 F. Supp.2d 117, 120 (N.D.N.Y. 2000).
Again, Plaintiff contends that she ought to have been searched
by a female officer and that the search was inappropriate under
the Fourth Amendment because Officer Friedman "cupped" her
crotch and breasts. Plaintiffs own deposition testimony reveals
that Friedman conducted a pat frisk that consisted of patting
down one leg, moving up her leg across her crotch and down the
other leg, placing the side of his little finger down the middle
of her breasts, checking under each breast, and then patting
Plaintiffs rear pants pockets. Plaintiff admitted that Friedman
was polite, he was not groping her in a sexual manner, he did
not grab her crotch or breasts, he did not touch underneath her
clothing, and the search of each area was fairly quick. Friedman
patted each area only once. Plaintiff candidly admitted Officer
Friedman was not being "perverted." Pl. Dep. pp. 75-76.
While we may all prefer to be searched by the person of our
choice and by a person of the gender of our choice, the Fourth
Amendment is not that protective under the circumstances of this
limited search. Police officers, whether male or female, have a
job to perform to and, provided they act appropriately and
professionally, their actions in searching an individual whom
they have probable cause to believe may be in possession of
marihuana and may be of the opposite gender does not constitute
a Constitutional transgression.
Furthermore, contrary to Plaintiff's contentions, the search
described is precisely what a search should entail. The officer
had to check those areas where a suspect could reasonably
secrete contraband such as marihuana. With all suspects, male
and female, this includes the crotch area, pockets, and the
legs. With female suspects, it reasonably includes her cleavage
and under each breast. There is simply no evidence before the
Court from which a fair-minded jury could reasonably conclude
that Friedman touched Plaintiff in an offensive or inappropriate
manner. To the contrary, a jury could only reasonably conclude
that Friedman touched Plaintiff only to that degree necessary to
perform the search. The Court also finds that it was reasonable
as a matter of law for Friedman to have conducted the search
himself. "[I]t would be unduly burdensome on police to require
that, when a female is to be arrested, a female police officer
be available on the scene to conduct the search." Acquino v.
Englert, 1996 WL 668518, 1996 U.S. Dist. Lexis 21092 (E.D.Pa.
1996). Accordingly, Plaintiff's claim in this regard must be
E. Qualified Immunity
Even assuming, arguendo, Defendants violated Plaintiffs
constitutional rights, for the following reasons, they would,
nonetheless, be entitled to qualified immunity.
1. False Arrest
Both officers testified that they smelled marihuana in the
car. At deposition, Plaintiff admitted that the officers stated
that they smelled marihuana and inquired as to who owned it. Pl.
Dep. at 46. Based upon this, reasonable officers could disagree
whether there was probable cause to believe that one or more of
the vehicle's occupants possessed marihuana and to search
Plaintiff therefor. Ford v.
Moore, 237 F.3d 156, 162 (2d Cir. 2001). Defendants had
"arguable probable cause" and, thus, are entitled to qualified
immunity for any alleged arrest and detention. Martinez v.
Simonetti, 202 F.3d 625, 634 (2d Cir. 2000).
Turning to the search of Plaintiffs person, Defendants are
entitled to qualified immunity. The Court is unaware of, and the
parties have not identified, any Supreme Court or Second Circuit
case law holding that a relatively non-intrusive, clothed frisk
of a female suspect by a male officer constitutes an affront to
the Fourth Amendment. See Collier v. Locicero, 820 F. Supp. 673,
680-81 (Conn. 1993). Although there is a clearly
established right to be free from unreasonable searches and
seizures, it is, at best, unclear whether Friedman's frisk of
Plaintiff under these circumstances is unreasonable and officers
of reasonable competence could disagree whether Friedman's
actions were lawful.
For the foregoing reasons, Defendants' motion for summary
judgment is GRANTED and the Complaint is DISMISSED IN ITS
IT IS SO ORDERED.