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October 23, 2002


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



The following facts are undisputed, unless otherwise noted.

On April 26, 2001, Plaintiff, Nicole Sarnicola, drove a silver Dodge Durango from Brooklyn, New York, to a parking lot in Tarrytown, New York. Plaintiff was accompanied by two other passengers, later identified as Michael Tricardo and Frank Rossi. Plaintiff was following a vehicle driven by Gabriel Cruz-Katz, an individual known as a drug dealer by the Westchester County Police.

Sergeant Thomas McGurn is a Westchester County Department of Public Safety Officer with approximately 30 years of police experience, including seven years of experience in Narcotics. He was in charge of the Narcotics Unit on April 26, 2001. On that date, Sergeant McGurn was responsible for coordinating the efforts of numerous police officers from the Westchester County Department of Public Safety and the Tarrytown Police Department in the undercover field "buy and bust" operation involving Gabriel Cruz-Katz. The back-up officers were in communication with Sgt. McGurn and were also responsible for security and surveillance. The officers were positioned in various locations in the vicinity of the CVS parking lot in Tarrytown, New York and the surrounding streets.

The Defendant County of Westchester (the "County") is a municipal entity existing under the laws of the Constitution of the State of New York.

On April 11, 2001, a controlled informant introduced an undercover police officer, Detective Christopher Kelly, to Gabriel Cruz-Katz. The purpose of the introduction was to arrange for future ecstasy purchases.

On April 12, 2001, Detective Kelly met Cruz-Katz at a pre-arranged location in Tarrytown, New York and purchased one hundred ecstasy pills at a cost of one thousand dollars. Also present at the scene as back-up officers, although unbeknownst to Cruz-Katz, was defendant Sgt. Thomas McGurn, Detective Rodriguez and Detective Weather. On April 13, 2001, Detective Kelly again met Cruz-Katz at a pre-arranged location in Tarrytown, New York and purchased one hundred ecstacy pills at a cost of one thousand dollars. Sgt. McGurn, Detective Antonecchia, Detective Rodriguez and Detective Weather were also present, again unbeknownst to Cruz-Katz.

On April 18, 2001, in anticipation of what was to be the third drug transaction between Detective Kelly and Cruz-Katz, Sgt. McGurn and Sgt. Buonanno of the Tarrytown Police Department, positioned themselves on Route 9 in the Village of Irvington. The Sergeants observed Cruz-Katz driving the same vehicle that he had used on previous occasions. They followed Cruz-Katz into the front parking lot of the Hilton Hotel, where he pulled behind a Lincoln Sedan. A white male got out of the Lincoln and got into the passenger side of the Cruz-Katz vehicle. McGurn and Buonanno observed Cruz-Katz drive to the front overhang of the hotel where the white male leaned over to Cruz-Katz and then exited the vehicle.

Cruz-Katz immediately proceeded to the pre-arranged location in Tarrytown where he met up with Detective Kelly and delivered one thousand ecstacy pills at a cost of eight thousand dollars. Cruz-Katz was observed leaving the location and proceeding directly back to the Hilton's parking lot, where he parked the vehicle and walked into hotel lobby. The white male from the Lincoln exited his car and followed Cruz-Katz into the lobby. Shortly afterward, both subjects left the hotel and returned to their respective vehicles. Lieutenant Emerson, Sgt. McGurn, Sgt. Buonanno, and Detectives Martin, Rodriguez, Pierro and Tkacz were present in the area of the drug transaction as back-up officers.

The fourth pre-arranged meeting between Detective Kelly and Cruz-Katz was scheduled for Tarrytown, New York on April 26, 2001. The Westchester County Police intended to do a "buy and bust" of Cruz-Katz — that is, buy drugs and immediately arrest the seller. Sergeant McGurn was the coordinating officer for this operation.

On April 26, 2001, Detective Tkacz observed the Cruz-Katz vehicle exit Interstate Route 87 and travel north on Broadway in the village of Tarrytown. Detective Tkacz immediately observed that the Cruz-Katz's car was being followed by a Dodge Durango with three occupants. Detective Tkacz radioed this information to Sgt. McGurn. Captain Annis, Detective Antonecchia, Detective Bravo, Detective Clarke, Detective Pierro, Detective Polant, Detective Rodriguez, Detective Rowan, Sergeant Buonanno, as well as other members of the Tarrytown Police Department, were all positioned in various locations around the CVS parking lot in Tarrytown for the buy and bust. Several of the officers were armed with shotguns and dispatched as security personnel. Their function was to watch the street for persons working with the drug supplier who might create a dangerous situation for the police personnel and civilians in the area.

Sergeant McGurn believed, based on his experience, that the car following Cruz-Katz contained Cruz-Katz's drug supplier. McGurn Deposition p. 21, lines 9-25, p. 22, lines 1-25, p. 23, lines 1-7. He further believed that such activity so closely fit with his prior experiences in narcotics transactions that it was a "textbook" scenario. McGurn Deposition, p. 35, lines 17-25, p. 36, lines 1-6. His belief was further fueled by the fact that Cruz-Katz had met with another individual (the white male in the Lincoln) both before and after the third buy went down.

Detective Kelly observed the Cruz-Katz vehicle as it drove past his location while he was parked on Broadway in the Village of Tarrytown at the pre-arranged time for their meeting. Kelly paged Cruz-Katz that he was on his way. Cruz-Katz did not mention that he was driving with any other individuals.

Detective Rowan observed the Cruz-Katz vehicle pull into the CVS parking lot, followed immediately by the Dodge Durango, which was being driven by plaintiff. The two cars were parked next to each other. Cruz-Katz got out of his vehicle and stood at the rear of the car. Then the passengers of the Durango — plaintiff, Tricardo and Rossi — left their vehicle.

There is some dispute as to the specific details, although not the general details, of what happened next. Considering only the undisputed facts, and ignoring every disputed observation, Detective Rowan observed Cruz-Katz, Tricardo, Rossi and plaintiff standing together having a conversation. He could not make out what was being said. After this, plaintiff and Rossi left the parking lot together, followed by Tricardo and Cruz-Katz.*fn1 Rossi continued to observe them until he saw Tricardo and Cruz-Katz walk off to the left and the plaintiff and Rossi walk off to the right. Rowan then lost sight of all four. Rowan Deposition p. 26, lines 21-23, p. 27, lines 9-12.

At about the same time, or shortly thereafter, Detective Kelly, looking through his passenger side mirror, observed Cruz-Katz walking toward his (Kelly's) undercover vehicle through his passenger side mirror. Detective Kelly saw Cruz-Katz walking with two persons he did not know; he thinks they were plaintiff and Rossi. Kelly testified that plaintiff and Rossi looked into his (Kelly's) car and continued walking while Cruz-Katz got in on the passenger side. Kelly Deposition, p. 17, line 25, p. 18, lines 1-9, p. 22, lines 7-25, p. 49, lines 18-25, page 50, lines 1-14. Detective Kelly did not write any of this down in his field report and Plaintiff and Rossi both deny doing any type of "walk-by surveillance" of any vehicle. For purposes of this motion I will ignore all references to this alleged activity.

Detective Kelly drove his vehicle to a side street, where his back-up team was positioned, to complete the transaction. Cruz-Katz was supposed to provide Detective Kelly with 5000 ecstacy pills in exchange for thirty-two thousand five hundred dollars ($32,500). Cruz-Katz told Kelly that the drugs were in his car. They drove to the CVS parking lot, where Cruz-Katz's car and the Dodge Durango vehicle were parked. Cruz-Katz exited Detective Kelly's vehicle, went to the trunk of his car and retrieved a package. Cruz-Katz reentered the undercover vehicle and turned the drugs over to Detective Kelly. Detective Kelly provided Cruz-Katz with twenty-thousand dollars in cash and told Cruz-Katz to count the money. Kelly then got out of the vehicle, claiming that the remainder of the money was in the trunk. When he opened the trunk (the signal to the back-up team that the buy had gone down), Cruz-Katz was taken into custody.

Immediately after Cruz-Katz was taken into custody, Sergeant McGurn questioned him about the identity of the three individuals who accompanied him in the Dodge Durango. After waiving his Miranda Rights, Cruz-Katz stated that Michael Tricardo was his drug supplier and that Tricardo had followed him from Brooklyn so he could collect his money on the spot. Defendants allege that Cruz-Katz also admitted that he and Tricardo held numerous cell phone communications during the ride from Brooklyn, during which Tricardo told Cruz-Katz how the drug deal should take place and instructed him to get it over quickly. Cruz-Katz also alleged that Tricardo repeated these statements when the four individuals were conversing in the parking lot. McGurn Deposition p. 28, lines 11-25, p. 29, lines 1-3, p. 31, lines 7-25, p. 35, lines 7-25, p. 36, lines 1-6. These comments about the cell phone calls and the content of the parking lot conversation are not documented in the field report and plaintiff contends that Crux-Katz did not make these statements until after he was taken to Police Headquarters. For purposes of this motion, I accept plaintiff's version and ignore the alleged comments.*fn2

Before McGurn spoke with Cruz-Katz, he directed Detective Rowan to find the three individuals who had driven up in the Durango. All three were located in the vicinity, taken into custody and brought to the Westchester County Department of Public Safety Headquarters. None of them was questioned in the parking lot or in the police cars. Plaintiff arrived in headquarters sometime between 6:30 and 7:00 P.M. While at the headquarters, pursuant to the order of Sgt. McGurn, plaintiff was strip searched by Officer Ana Maria Beckley.

Officer Beckley was called from her post to report to headquarters to conduct a strip search of the plaintiff at approximately 7:00 P.M. Officer Beckley vouchered the plaintiff's jewelry and personal items and then took her to a secluded area in the headquarters to conduct a strip search. Officer Beckley asked plaintiff to take off each item of clothing and to hand it to her. The plaintiff complied with the officer's requests. When the plaintiff had removed all of her clothes, the officer asked her to turn around and bend over. After inspecting her anal area, Officer Beckley allowed plaintiff to re-dress. Officer Beckley made no physical contact with the plaintiff.

Following the strip search, Detective Pierro questioned the plaintiff from approximately 8:20 P.M. until 8:45 P.M., at which time Sarnicola completed a brief written statement. She remained in a room with another officer for several hours, while officers were questioning the three men. Plaintiff was eventually released to the lobby of the headquarters after the completion of the interviews with the three other subjects and after consultation with the District Attorney's Office. Defendants contend that plaintiff was brought to the lobby at approximately 10:40 P.M., and that at approximately 10:45 P.M., she was told that she could leave. McGurn Deposition, p. 69-71, Sarnicola Deposition p. 49, lines 20-24, p. 50, lines 1-10, p. 50, lines 22-24, p. 51, lines 1-4. Plaintiff believes that it was closer to 11:30 P.M. when she was brought downstairs to the front desk and lobby and released. Plaintiffs Response to Defendant's Rule 56.1 Statement, ¶ 17. Regardless, it is undisputed that plaintiff, along with Rossi, remained at headquarters until approximately midnight, so they could ride back to Brooklyn with two detectives — Detectives Pierro and Antonecchia — who were members of a team of officers going to conduct a search of Tricardo's apartment.

No charges were ever filed against Sarnicola.

On July 5, 2001, plaintiff commenced this action, alleging false arrest, excessive seizure and unlawful strip search in violation of her Fourth Amendment rights and her rights under the New York State Constitution and the laws of New York. Plaintiff also alleged a Monell claim against the County of Westchester, claiming that the unlawful strip search was pursuant to an unconstitutional operative policy of the 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. ...

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