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United States District Court, E.D. New York

May 11, 2005.

COUNTY OF SUFFOLK, ROBERT GAFNEY, CHARLES GARDNER, WILLIAM BAESLER, ROBERT PERRICONE, THELMA DREW, THEODORE WALKER, DONALD O'CONNOR, P.O. KELLERHER, a fictitious name as the true name is unknown, LIEUTENANT CALEBRESE, a fictitious name as the true name is unknown, Defendants.

The opinion of the court was delivered by: JOHN GLEESON, District Judge


Defendants move for summary judgment with respect to plaintiff Doug Cass's claim under 42 U.S.C. § 1983 that his Fourth Amendment rights were violated by the October 13, 1999, warrantless arrest of him at his home. For the reasons set forth below, the motion is granted.


  On October 12, 1999, defendant Robert Perricone, an investigator with the Suffolk County Office of Consumer Affairs, filed four misdemeanor informations against Doug Cass for performing home repairs without a license, in violation of Suffolk County Code Ch. 345. (See O'Connor Decl., Ex. C.) The informations were based on complaints by consumers. (Id.) At that time, Cass*fn1 did not have a license from the Office of Consumer Affairs to perform home appliance repairs. He was also on probation pursuant to a Suffolk County Court order dated March 25, 1997, based on a conviction for driving while intoxicated. (O'Connor Decl., Ex. A.) The probation was for a period of five years, and had a number of conditions, including that Cass was required to (1) report to a Probation Officer; (2) permit the Probation Officer to visit him at his home or elsewhere; (3) answer all reasonable inquiries by the Probation Officer; (4) "submit to a reasonable search of [his] person by a Probation Officer when the officer believes [he] may be in violation of probation;" and (5) permit search of his vehicle or place of abode. (Id.; see also id., Ex. B.)

  On October 13, 1999, Probation Officer Donald O'Connor visited Cass's residence. (O'Connor Aff't at ¶ 8; D. Cass Aff't at ¶¶ 1-2.) He rang the bell and was permitted to enter the residence. O'Connor requested that Cass sign medical authorization forms, but Cass refused. (O'Connor Aff't at ¶ 14; D. Cass Aff't at ¶ 3.) Detective Theodore Walker entered the residence five to ten minutes later "without knocking on the door and without ringing the doorbell." (D. Cass Aff't at ¶ 5.)*fn2 Detective Walker then arrested Cass on the charges set forth in the misdemeanor informations, i.e., performing appliance repair without a license.

  Doug and Lori Cass filed the instant complaint on May 24, 2001. (O'Connor Decl., Ex. E.) In October of 2002, defendants moved for summary judgment and plaintiffs cross-moved for summary judgment. On October 25, 2002, I held oral argument and granted defendants' motion in part, denied defendant's motion in part and denied plaintiffs' cross-motion. (Tr. dated Oct. 25, 2002, at 19-30.) My decision left intact one of the plaintiffs' claims — the claim alleging that Cass's rights under the Fourth Amendment were violated by his warrantless arrest in his home. (Id. at 30.) I provided defendants with an opportunity to renew their motion for summary judgment on this remaining claim. Counsel for both sides then let the case languish. In response to an inquiry from the Court in August 2004 as to why it should not be dismissed for failure to prosecute, plaintiffs' counsel, who had moved to Florida, said he wanted to sue some more people, including CBS news and one of their reporters.

  That did not come to pass, and eventually defendants renewed their summary judgment motion with respect to the remaining claim, as they said they would two years earlier.*fn3 I heard oral argument on January 7, 2005. For the reasons set forth below, the motion is granted.


  A. The Rule 56 Standard

  Under Rule 56 of the Federal Rules of Civil Procedure, the moving party is entitled to summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The substantive law governing the case identifies the facts that are material, and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is warranted only if "the evidence is such that a reasonable jury could [not] return a verdict for the nonmoving party." Id.

  Moreover, "the inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quotation marks omitted); see also, e.g., Michalski v. Home Depot, Inc., 225 F.3d 113, 116 (2d Cir. 2000) ("[W]e . . . view [the facts] in the light most favorable to, and draw inferences in favor of, the non-moving party. . . ."). Once the moving party has met its burden, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts. . . . [T]he non-moving party must come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita, 475 U.S. at 586-87 (quoting Fed.R.Civ.P. 56(e), emphasis in original).

  B. Legal Standard for Recovery under 42 U.S.C. § 1983

  42 U.S.C. § 1983 provides, in pertinent part:

  Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured. . . . "Section 1983 itself creates no substantive rights, [but] . . . only a procedure for redress for the deprivation of rights established elsewhere." Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993) (citing Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985)). In order to maintain a § 1983 action, Cass must allege two essential elements. First, "the conduct complained of must have been committed by a person acting under color of state law." Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994) (citing Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on other grounds by Daniel v. Williams, 474 U.S. 327 (1986)). Second, "the conduct complained of must have deprived a person of rights, privileges or immunities secured by the Constitution or laws of the United States." Id.

  A plaintiff may sue a municipal officer under 42 U.S.C. § 1983 in both his official and individual capacities. See, e.g., Kentucky v. Graham, 473 U.S. 159, 165-66, (1985) (explaining that whereas an official-capacity suit is generally a suit against the governmental entity, an individual-capacity suit "seek[s] to impose personal liability upon a government official for actions he takes under color of state law."). To establish individual liability in a § 1983 action, "it is enough to show that the official, acting under color of state law, caused the deprivation of a federal right." Id. at 166 (citations omitted).

  C. Warrantless Entry and Arrest by Probation and Police Officers

  For the public at large, absent exigent circumstances or consent, a warrantless arrest occurring inside an individual's home is a Fourth Amendment violation. Payton v. New York, 445 U.S. 573, 576-77 (1980). However, "[a] State's operation of a probation system . . . presents `special needs' beyond normal law enforcement that may justify departures from the usual warrant and probable-cause requirements." Griffin v. Wisconsin, 483 U.S. 868, 873-74 (1987). As long as those departures occur "pursuant to a regulation that itself satisfies the Fourth Amendment's reasonableness requirement," individuals on probation may be constitutionally subject to a "degree of impingement upon privacy that would not be constitutional if applied to the public at large." Id. at 873, 875. Regulations governing probation and parole, and conditions of probation and parole, satisfy the reasonableness requirement so long as the law or condition permitting the intrusion is "reasonably related to the [probation] officer's duties." United States v. Grimes, 225 F.3d 254, 259 n. 4 (2d Cir. 2000). The Second Circuit draws no distinction between legislatively and judicially crafted rules. Id. at 259 n. 3.

  To enter the home of a probationer, a probation officer must be authorized by a valid statute, regulation or a condition of probation. Tchirkova v. Kelly, 96 Civ. 1157, 1998 WL 125542, *6 (E.D.N.Y. Mar. 16, 1998) (citing Griffin, 483 U.S. at 880). It is well-settled that conditions that allow probation officers to conduct visits to and searches of the residence of probationers are valid under the Fourth Amendment. See United States v. Knights, 534 U.S. 112, 118-20 (2001); United States v. Newton, 369 F.3d 659, 665 (2d Cir. 2004). "[A] visit . . . is not a search," and probation officers have the legal authority to make unannounced home visits as they "serve the purpose of verifying the parolee's residence, employment status, and other indicia of community adjustment." Tchirkova, 1998 WL 125542 at *4 (citations omitted).

  [T]he probable cause requirements of the Fourth Amendment do not apply to a federal probation officer conducting a home visit — a far less invasive form of supervision than a search — pursuant to a convicted offender's conditions of supervised release. Furthermore, we hold that because home visits "at any time" are conducted pursuant to a court-imposed condition of federal supervised release of which the supervisee is aware, and because a home visit is far less intrusive than a probation search, probation officers conducting a home visit are not subject to the reasonable suspicion standard applicable to probation searches. . . . United States v. Reyes, 283 F.3d 446, 462 (2d Cir. 2002) (emphasis in original).

  If a probation officer's entry into the home of a probationer is consistent with the Fourth Amendment, the officer's accompaniment by police officers does not raise Fourth Amendment concerns. Reyes, 283 F.3d at 463-64. The Second Circuit has extended this principle to police-accompanied searches by parole officers, stating specifically that the constitutionality of the coordinated efforts by parole/probation and police is governed by the legitimacy of the supervision objectives being pursued by the probation officers, and not the ultimate level of intrusion. Newton, 369 F.3d at 667. "[I]t is difficult to imagine a situation in which a probation/parole officer who entered a residence with other law enforcement officials based on information about a supervisee's illegal activities . . . would not be pursuing legitimate supervision objectives." Id. (citing Reyes, 283 F.3d at 463). Moreover, the Supreme Court has held that a search by an unaccompanied police officer, supported by reasonable suspicion and conducted pursuant to a probation condition allowing warrantless searches by either probation or law enforcement officers, is constitutional. Knights, 534 U.S. at 121.

  Cass argues that law enforcement officers may not enter a home to make a warrantless arrest in the absence of consent or exigent circumstances. This true as a general matter, but Cass was a probationer, and his express conditions of probation included the following:

(a) Report to a Probation Officer as directed by the Court of the Probation Officer and permit the Probation Officer to visit you at your place of abode or elsewhere.
(j) Submit to a reasonable search of your person by a Probation Officer when the officer believes you may be in violation of probation.
(O'Connor Decl., Ex. A.) He also had "additional conditions of probation," which included: (a) That you permit search of your person and seizure of any narcotic implements and/or illegal drugs found, such search to be conducted by a Probation Officer or a Probation Officer and his agent.


(b) That you permit search of your vehicle and place of abode where such place of abode is legally under your control, and seizure of any narcotic implements and/or illegal drugs found, such search to be conducted by a Probation Officer or a Probation Officer and his agent.
(Id., Ex. B.) As stated above, such conditions are constitutional. See Knights, 534 U.S. at 119. Cass's "signature on the document specifically stating that [these] conditions" restricted his liberty demonstrated that "he had a severely diminished expectation of privacy with respect to any home visit by a probation officer." Reyes, 283 F.3d at 461. As the intrusion here occurred as part of a home visit pursuant to a Cass's express conditions of probation, the Fourth Amendment is not implicated. Id. at 462.

  Cass argues that O'Connor's only motive to visit the Cass home was to help "orchestrate? [an] illegal arrest without a warrant." (FRCP 56.1 Counter Stmt ¶ 12.) Even if that were the only reason, Cass's claim of a Fourth Amendment violation would fail. Courts do not "entertain Fourth Amendment challenges based on the actual motivations of individual officers." Knights, 534 U.S. at 122 (citing Whren v. United States, 517 U.S. 806, 813 (1996)). Regardless of the subjective intent of the officers involved, as long as their conduct was based on a valid condition of probation, the Fourth Amendment is not implicated.*fn4

  That Detective Walker did not enter Cass's home until five or ten minutes after O'Connor does not alter the result. There is no doubt a limit on how long after a probation officer's visit a law enforcement officer can enter a home and still be "working in cooperation" with the probation officer, but I need not identify that limit here. On the facts as presented by Cass, no reasonable jury could find that Detective Walker's entry was unauthorized by the Fourth Amendment. It is "entirely reasonable for the parole officers to solicit the assistance of the police" when there is a "not-insubstantial risk that the parolee's response to any inquiry might be violent." Newton, 369 F.3d at 667. That authority is not contingent on both officers entering the premises at precisely the same moment. The five-minute gap before Detective Walker arrived did not, as a matter of law, extinguish the authority he derived through O'Connor.

  In sum, the law permits "a coordinated effort" between parole/probation and law enforcement officers "as long as the probation officers are pursuing legitimate probation-related objectives." Reyes, 283 F.3d at 464 (citations omitted). In Reyes, the court found that a probation officer was pursuing legitimate supervision objectives when he conducted a home visit with other law enforcement officers based on "information about a supervisee's illegal activities." Id. at 463. Thus, even if the sole purpose of the visit by O'Connor and Walker was to effect an arrest based on the misdemeanor informations, the visit would not have violated the Fourth Amendment. Accordingly, I find that neither O'Connor nor Detective Walker entered the Cass's home in violation of the Fourth Amendment.

  D. Probable Cause for the Arrest

  "[A] warrantless arrest by a law officer is reasonable under the Fourth Amendment where there is probable cause to believe that a criminal offense has been or is being committed. Whether probable cause exists depends upon the reasonable conclusion to be drawn from the facts known to the arresting officer at the time of the arrest." Devenpeck v. Alford, 125 S. Ct. 588, 593 (2004) (citations omitted). There is no question here, even viewing the facts in the light most favorable to Cass, that Detective Walker had probable cause to arrest Cass. Cass was named as a defendant in four misdemeanor informations for performing home appliance repair without a license. (Robinson Decl. ¶ 12; O'Connor Decl., Ex. C.)

  The misdemeanor informations at issue were based on complaints made by four individuals who had entered into home appliance repair contracts with Active Appliance, a business belonging to Cass, between April 29, 1999 and July 6, 1999. Each information is dated October 12, 1999. The individuals complained that after entering into contracts and making some payment (ranging from $100 to over $1,400), the work was not completed or was unsatisfactory. They were then unable to contact the company to follow-up or to receive a refund. (O'Connor Decl., Ex., C.)

  Cass claims that the arrest was invalid because it was "orchestrated by Charles A. Gardner of the Suffolk County Office of Consumer Affairs." (Gramer Decl. ¶ 9.) As mentioned above, the Supreme Court has made "clear that an arresting officer's state of mind (except for the facts that he knows) is irrelevant to the existence of probable cause. That is to say, his subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause. . . . The Fourth Amendment's concern with `reasonableness' allows certain actions to be taken in certain circumstances, whatever the subjective intent." Devenpeck, 125 S. Ct. at 593 (quotations and citations omitted). Though I see no evil in a consumer affairs official "orchestrating" an arrest based on complaints by consumers, Gardner's motivations are not germane; in light of the misdeamenor informations, no jury could reasonably conclude that Detective Walker did not have probable cause to arrest Cass. D. Qualified Immunity

  Defendants argue that it was objectively reasonable for Detective Walker to believe that he was acting lawfully. Plaintiffs do not address this argument.

  Government officials performing discretionary functions enjoy qualified immunity and are "shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (citations omitted). Here, given the above discussion of the law governing the rights of probationers, especially with respect to coordination between probation and law enforcement officers, and given Detective Walker's knowledge of the misdemeanor informations, it was reasonable for him to believe that he was acting pursuant to the law. Accordingly, he is entitled to qualified immunity, and the claim against him is dismissed on that ground as well.


  I hereby grant defendants' motion for summary judgment with respect to Cass's remaining claim that his arrest was in violation of the Fourth Amendment. The Clerk of the Court is directed to enter judgment for the defendants and to close the case.

  So Ordered.

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