County encompassed within certain interrelated Westchester
County Department of Public Safety General Orders. Additionally,
plaintiff alleged a respondeat superior claim against the County
of Westchester, and negligence claims against both defendants.
On February 7, 2002, defendants filed for summary judgment,
and on February 22, 2002, plaintiff cross-moved for summary
judgment, both pursuant to Fed.R.Civ.P. 56.
For the reasons stated below, I grant summary judgment to the
defendants on the false arrest claims and excessive confinement
claims under both federal and state law. (First and Second Cause
of Action; Fifth Cause of Action, in part). I also grant
defendants' motion for summary judgment dismissing Sarnicola's
state law claim of negligence (Seventh Cause of Action).
I grant summary judgment to the plaintiff on her unlawful
strip search claim against Sgt. McGurn, finding a clear
violation of her Fourth Amendment rights and her parallel State
Constitutional rights and finding no basis for imputing
qualified immunity to Sgt. McGurn. (Third Cause of Action; Fifth
Cause of Action, in part).
Unfortunately, while the strip search violated the written
policy of Westchester County, there is a disputed issue of
material fact concerning whether that policy was routinely
ignored. If so, then routine strip searches of all felony
narcotics arrestees, without probable cause to believe they are
secreting contraband, would qualify as a "practice" of the
County. In addition, the parties have not sufficiently developed
the record on the issues relating to County liability for the
strip search under state law. Thus, I deny both parties' motions
for summary judgment against the County on the strip search
claim. (Fourth and Sixth Cause of Action).
I. Summary Judgment Standard
On a motion for summary judgment, the movant is entitled to
judgment as a matter of law if there are no genuine issues of
material fact. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-50, 106 S.Ct. 2505, 91 L.Ed.2d 202
(1986). If a genuine issue for trial exists such that a
reasonable jury could find in favor of the non-movant, then
summary judgment must be denied. See Id. at 248, 106 S.Ct.
2505. The court must view the evidence in the light most
favorable to the non-moving party and draw all reasonable
inferences in favor of the non-movant. Adickes v. S.H. Kress &
Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142, (1970);
In re Chateaugay Corp., 10 F.3d 944, 957 (2d Cir. 1993).
II. There Was Probable Cause to Arrest Nicole Sarnicola
"Probable cause to arrest a person exists if the law
enforcement official, on the basis of the totality of the
circumstances, has sufficient knowledge or reasonably
trustworthy information to justify a person of reasonable
caution in believing that an offense has been or is being
committed by the person to be arrested." United States v.
Patrick, 899 F.2d 169, 171 (2d Cir. 1990). The defendant bears
the burden of establishing that his actions were justified based
on probable cause. Raysor v. Port Authority of New York & New
Jersey, 768 F.2d 34 (2d Cir. 1985), cert. denied,
475 U.S. 1027, 106 S.Ct. 1227, 89 L.Ed.2d 337. To meet that burden the
defendant must show that he had a quantum of evidence which
amounted to "more than a rumor, suspicion, or even a strong
reason to suspect." United States v.
Fisher, 702 F.2d 372, 375 (2d Cir. 1983) (citations omitted).
Probable cause does not require a prima facie showing of
criminal activity or a showing that evidence of a crime will,
more likely than not, be found. United States v. Cruz,
834 F.2d 47 (2d Cir. 1987). Probable cause requires that the
possibility of criminal activity or the possibility of evidence
of a crime will be found. Texas v. Browm, 460 U.S. 730, 103
S.Ct. 1535, 75 L.Ed.2d 502 (1983). Moreover, in determining
whether probable cause exists, the experience and expertise of
the law enforcement agents should be taken into consideration.
United States v. Zabala, 52 F. Supp.2d 377, 382 (S.D.N.Y.
1999); United States v. Perea, 848 F. Supp. 1101, 1104
(E.D.N.Y. 1994). Evidence "must be seen and weighed not in terms
of library analysis by scholars, but as understood by those
versed in the field of law enforcement." United States v.
Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 66 L.Ed.2d 621
No reasonable juror could conclude that Sergeant McGurn lacked
probable cause to arrest plaintiff Nicole Sarnicola on the
evening of April 26, 2001 and to detain her pending
investigation. While the details are as to what happened in the
parking lot are contested, the undisputed facts, and the
circumstances surrounding them, give rise to probable cause:
Sarnicola drove an SUV following Cruz-Katz, a known drug dealer
who had previously sold large amounts of narcotics to an
undercover agent; she parked next to him and got out of the SUV
with two men (one of whom was later determined to be Cruz-Katz's
supplier); she participated in a discussion with the men; she
left the parking lot at approximately the same time that
Cruz-Katz left with the supplier, and shortly thereafter the
pre-arranged "buy and bust" was completed. Sgt. McGurn's belief
that the occupants of the SUV were drug suppliers was based not
only on these observations, but also on his experience in
narcotics enforcement, and his observations of a deal Cruz-Katz
had conducted earlier that month. Defendant's 56.1 Statement ¶
7, 8 (numerous citations to record omitted). These facts and
circumstances give rise to probable cause that Sarnicola was a
participant in drug activity. That this suspicion later turned
out to be unfounded is irrelevant.*fn3
Plaintiff argues that her mere "proximity — even with a verbal
exchange, without something more affirmative conduct [sic]
specifically linking the Plaintiff to a participation in the
drug dealing enterprise, is not sufficient to form a probable
cause justification for the full custodial arrest." Plaintiffs
Memorandum of Law at 14. As this court said several years ago,
in Flores v. City of Mount Vernon, 41 F. Supp.2d 439 (S.D.N.Y.
1999), ". . . .the mere fact that a person is physically
proximate to others who are suspected of criminal narcotics
activity does not give rise to probable cause; there must be
something more in order for an arrest to be lawful." Id. at
443. But Sarnicola was not just "physically proximate" to the
real criminals, Cruz-Katz and Tricardo. She did in fact engage
in affirmative conduct that was closely connected with the
crime. She drove Tricardo, the suspected supplier of the drugs,
to Tarrytown; she got out of the car with him; and she engaged
in conversation with Tricardo and Cruz-Katz, albeit briefly.
That is more than physical proximity — it is
the "something more" required to give rise to probable cause.
United States v. Patrick, 899 F.2d 169 (2d Cir. 1990).
In Patrick, Christopher Patrick and his co-defendant, Linda
Taylor, entered the U.S. Immigration Office at Niagara Falls,
New York after crossing the international border on foot from
Canada. Taylor entered first carrying a knapsack, followed by
Patrick who was also carrying a knapsack. They were the only two
civilian pedestrians in the office at the time. Patrick, 899
F.2d at 170.
Both were questioned by a U.S. Customs inspector about their
citizenship and length of stay in Canada. Both told the
inspector that they had accidentally crossed the Canadian border
on a bus, and after realizing their mistake had walked back to
the United States. Id. The inspector found their answers to be
suspicious, and directed them to another inspection point, where
their belongings were searched. Cocaine was found in the lining
of Taylor's purse. Over the next few hours, both Taylor and
Patrick were interrogated, and eventually Patrick made an oral
and written statement that a person named "Gino" had asked him
to accompany Taylor to make sure that the packages were
delivered to Niagara Falls. Id.
Taylor and Patrick were indicted on one count of unlawful
importation of a controlled substance and one count of unlawful
possession of a controlled substance. At trial, both defendants
made motions to suppress any inculpatory statements made after
they were detained. The district court denied Taylor's motion,
but granted Patrick's motion to suppress those statements,
finding that the Customs inspector lacked probable cause to
arrest Patrick. Id. at 170 — 171. The government appealed the
suppression order. Id. at 170.
The Court of Appeals reversed, finding that there was probable
cause for Patrick's arrest. The Court of Appeals concluded that
the following factors added up to probable cause: Patrick and
Taylor had entered the office together, waited in line next to
each other, and told the inspector the same suspicious story of
how they happened to walk from Canada to the United States.
Id. Those facts indicated that Taylor and Patrick were
traveling together. Once drugs were found in Taylor's bag, there
was enough evidence to indicate that the two were traveling and
acting together, which provided probable cause for Patrick's
arrest. Id. at 171-172.
The Second Circuit distinguished Patrick's situation from the
one in Ybarra v. Illinois, 444 U.S. 85, 91-93, 100 S.Ct. 338,
62 L.Ed.2d 238 (1979). There, police who had a warrant to search
a bartender and the premises in which he worked frisked every
patron who happened to be in the bar at the time they arrived to
execute the warrant. The Supreme Court concluded that there was
no probable cause to search the plaintiff, because all the
police knew about him was that he was a patron in the bar — he
himself had done nothing that might give rise to probable cause.
In contrast, Sarnicola was not in the Tarrytown parking lot by
happenstance. Police had observed her driving two men to the
location while following the car of a known drug dealer and then
conversing with all three men. Her actions, not her mere
presence, aroused suspicion.
In addition to Ybarra, plaintiff cites Flores v. City of
Mount Vernon in support of her proposition. But the egregious
facts of Flores are even less helpful to her.
In Flores, a confidential informant told the Mount Vernon
police that the owner of a local pub was selling cocaine. A
police investigator swore out a warrant based on the informant's
report. The warrant authorized the Mount Vernon Police
Department to search the pub for evidence of narcotics and to
look for a male named Shawn. A detective with the Mount Vernon
Police Department executed the warrant on March 20, 1997. On
that evening, Flores was working at the pub as a
bartender/waitress. The police entered the pub, and spent about
an hour and a half searching. Ms. Flores, the only employee
behind the bar when the police entered, was ordered to sit on a
stool with her hands on her lap. No narcotics were found on or
behind the bar where Ms. Flores had been working. Ms. Flores was
not frisked while at the pub, but her pocketbook was searched,
and no drugs were found. Shawn, the owner of the pub, and three
other patrons were arrested for possession of cocaine. However,
the police arrested Ms. Flores and took her to Mount Vernon
Police Headquarters, where she was strip searched by a female
officer. She was not charged and was allowed to leave. Flores,
41 F. Supp.2d at 441-442. Nothing in the facts known to the
police gave rise to probable cause that Karen Flores had
committed a crime or had drugs on her person. Ms. Flores was
arrested simply and solely because she had a job at the bar.
That is a far cry from following a drug dealer to the scene of a
planned buy, under circumstances that lead police to believe
that the occupants of the vehicle are involved in a felony drug
Thus, Sergeant McGurn had ample probable cause to order
plaintiff arrested and detained pending further investigation.
Defendants' motion for summary judgment on plaintiffs second
cause of action, alleging false arrest in violation of
42 U.S.C. § 1983 is granted. Their motion for summary judgment dismissing
plaintiff's fifth cause of action, insofar as it alleges the
non-constitutional torts of false arrest and false imprisonment,
is also granted, since the existence of probable cause negates
any such claim as a matter of state law. Bernard v. United
States, 25 F.3d 98, 102 (2d Cir. 1994); Weyant v. Okst,
101 F.3d 845, 852 (2d Cir. 1996); Posr v. Doherty, 944 F.2d 91, 96
(2d Cir. 1991). Plaintiff's cross-motion for summary judgment
addressed to these claims is denied.
III. Plaintiff was Subjected to an Unlawful Strip Search
By far the most interesting — and complicated — question
raised by this case is whether it was constitutionally
permissible for Sgt. McGurn to order that Sarnicola be strip
searched. It is also the issue least adequately briefed by the
parties, who are, for the most part, content to rest on their
analysis of whether there was or was not probable cause to
arrest plaintiff. Unfortunately, that issue is far from
The facts relevant to the search are undisputed. I conclude
that McGurn's search violated Sarnicola's Fourth Amendment
rights, because McGurn had no individualized reasonable
suspicion to believe that plaintiff was concealing weapons or
contraband on her person. Moreover, McGurn is not entitled to
qualified immunity; his strip search order violated not only
settled constitutional law but Westchester County's official
policy concerning strip searches. Plaintiff is entitled to
summary judgment against McGurn on this claim.
A. The strip search violated Sarnicola's Fourth Amendment
rights because McGurn did not have a particularized
reasonable belief that she was secreting contraband.
1. Legal Standard.
The Fourth Amendment prohibits "unreasonable" searches and
seizures. For more than two decades, courts have specifically
and repeatedly recognized the
importance of guarding against unreasonable strip searches, in
view of the degrading nature of this particular invasion of
privacy. In Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60
L.Ed.2d 447 (1979), the United States Supreme Court ruled that
Fourth Amendment reasonableness analysis had to balance the need
for a particular search against the invasion of personal rights
implicated. Stating that the "test of reasonableness under the
Fourth Amendment is not capable of precise definition or
mechanical application," Chief Justice Rehnquist held that the
reasonableness of a strip search turned on (1) the scope of the
intrusion, (2) the manner in which the search is conducted, (3)
the justification for initiating the search, and (4) the place
in which the search in conducted. Bell, 441 U.S. at 559, 99
S.Ct. 1861 (citations omitted). And while the Supreme Court
stated in 1973 that "full body searches" incident to a lawful
arrest were reasonable under the Fourth Amendment, U.S. v.
Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 38 L.Ed.2d 427
(1973), numerous post-Bell courts have held that strip
searches are not automatically justified by a lawful arrest.
See Fuller v. M.G. Jewelry, 950 F.2d 1437, 1446 (9th Cir.
1991) (holding that a search incident to arrest under Robinson
did not extend to a strip search or bodily intrusion) (citation
omitted), Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1272
(7th Cir. 1983) ("[the Robinson court] simply did not
contemplate the significantly greater intrusions" of a strip or
body cavity search). In addition, the Supreme Court has
implicitly recognized that they have not considered the
circumstances under which a strip search is justified incident
to arrest. See Illinois v. Lafayette, 462 U.S. 640, 644-646,
103 S.Ct. 2605, 77 L.Ed.2d 65 (1983) (discussing the permissible
scope of searches incident to arrest, and their holdings in
Robinson and United States v. Edwards, 415 U.S. 800, 94
S.Ct. 1234, 39 L.Ed.2d 771 (1974), and stating: "we were not
addressing in Edwards, and do not discuss here, the
circumstances in which a strip search of an arrestee may or may
not be appropriate").
A particularized reasonableness analysis under Bell v.
Wolfish is required to establish the lawfulness of any
warrantless strip search, even one conducted incident to a
lawful arrest. Swain v. Spinney, 117 F.3d 1, 6 (1st Cir. 1997)
A determination of reasonableness must be based on "all of the
circumstances surrounding the search or seizure and the nature
of the search or seizure itself." United States v. Montoya de
Hernandez, 473 U.S. 531, 537, 105 S.Ct. 3304, 87 L.Ed.2d 381
(1985) (citation omitted). The reasonable suspicion test is
objective, not subjective — that is, the test is whether a
reasonable officer could have particularized suspicion
considering the totality of the circumstances. Cartier v.
Lussier, 955 F.2d 841, 843 (2d Cir. 1992).
The Second Circuit, applying Bell v. Wolfish, has held that
a strip search of a misdemeanor arrestee is unlawful unless
there is "reasonable suspicion that the arrestee is concealing
weapons or other contraband based on the crime charged, the
particular characteristics of the arrestee, and/or the
circumstances of the arrest." Weber v. Dell, 804 F.2d 796, 802
(2d Cir. 1986) cert denied sub no. County of Monroe v. Weber,
483 U.S. 1020, 107 S.Ct. 3263, 97 L.Ed.2d 762. In the sixteen
years following Weber, the Second Circuit has firmly held that
strip searches of persons lawfully arrested for minor
infractions (misdemeanors and violations) must be justified by
an individualized reasonable suspicion of concealed weapons or
contraband. See e.g. Shain v. Ellison, 273 F.3d 56 (2d Cir.
2001); Kaufman v. Rivera, 1999 WL 197199, 1999 U.S.App. LEXIS
(2d Cir. 1999): Elk v. Townso, et al., 839 F. Supp. 1047 (2d
Cir. 1993). The Second Circuit also requires reasonable
suspicion based on individual circumstances to justify strip
searches in other contexts. See e.g., Varrone v. Bilotti,
123 F.3d 75 (2d Cir. 1997) (reasonable suspicion clearly required
for strip search of prison visitors); Security and Law
Enforcement Employees v. Carey, 737 F.2d 187 (2d Cir. 1984)
(reasonable suspicion standard required for strip search of
prison guards). While the Second Circuit has not spoken directly
to the appropriate test for the validity of a strip search
incident to a felony arrest, this Court recently opined that the
Court of Appeals would apply the particularized reasonable
suspicion test to searches of felony arrestees as well, rather
than permitting strip searches of all felony arrestees solely
because they had been arrested for a felony. Murcia v. County
of Orange, 226 F. Supp.2d 489 (S.D.N.Y. 2002); Dodge v. County
of Orange, 209 F.R.D. 65 (S.D.N.Y. 2002).*fn4 There would
seem to be no constitutional prerogative to strip search
individuals in the absence of particularized reasonable
suspicion that they are carrying drugs or contraband.
Official policy statements in the record demonstrate that, at
least on paper, Westchester County understands the legal
restrictions on strip searches incident to lawful arrests. The
County's policy tracks the language of the controlling cases:
strip searches are permitted only in cases in which the
searching officer had reasonable suspicion to believe that the
arrestee was carrying contraband based on the nature of the
crime committed, the particular characteristics of the arrestee,
or the circumstances of the arrest. An officer who wishes to
conduct a strip search must obtain permission from a supervisor,
and must conduct the search in accordance with rules designed to
protect the privacy of the person searched. General Order No.
42.05 (Exhibit 9 in support of Plaintiffs Cross Motion for
Summary Judgment). The policy does not distinguish between
persons arrested for felonies and misdemeanors. On its face,
such a policy is constitutional.
Ms. Sarnicola was arrested at the scene of a crime because the
police had probable cause to believe that she was involved in a
felony. She was brought to the jail and strip searched upon
arrival, before any further determination was made about her
involvement in the crime. She was not mixed in with the general
population of a correctional facility. The validity of Ms.
Sarnicola's strip search must be justified by individualized
reasonable suspicion that Ms. Sarnicola was concealing weapons
or contraband, based on her particular circumstances.
2. McGurn did not have particularized reasonable suspicion
to order that Sarnicola be strip searched.
While the Westchester County policy does not define
"reasonable suspicion," the Second Circuit provided guidance in
Varrone v. Bilotti, 123 F.3d 75, 79 (2d Cir. 1997):