The opinion of the court was delivered by: McMAHON, District Judge.
MEMORANDUM AND DECISION GRANTING IN PART AND DENYING IN PART
THE CROSS-MOTIONS FOR SUMMARY JUDGMENT
FACTS PERTINENT TO THE MOTION
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
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
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
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
No charges were ever filed against Sarnicola.
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. ...