The opinion of the court was delivered by: Hugh B. Scott United States Magistrate Judge
Before the Court is the defendant's motion for summary judgment and to stay discovery (Docket No. 13).
The plaintiff, Shonyea Douglas ("Douglas") brings this action alleging that his civil rights were violated when he was allegedly strip searched by a police officer at the side of a public highway. Douglas alleges that on January 26, 2002 he was a passenger in a car driven by Taretha Johns ("Johns"). The plaintiff states that Poliko Irvin was also present in the car at that time. (Docket No. 1 at ¶ 5). Douglas claims that at some point, State Trooper Jordan Bonafede ("Bonafede") directed Johns to pull over. According to Douglas, Bonafede made the occupants get out of the car; walk back to his patrol car; empty their pockets on the hood of the patrol car; and submit to a pat down. (Docket No. 1 at ¶¶ 9-17). At some point, a second State Trooper arrived at the scene. (Docket No. 1 at ¶18). Douglas contends that Bonafede subsequently found several marijuana seeds in the back seat of the car in which the plaintiff was traveling. (Docket No. 1 at ¶ 20). After some further discussion, Douglas states that Bonafede advised them that he was not going to arrest them, but that he was going to strip search them. (Docket No. 1 at ¶ 26). The plaintiff claims that Bonafede then pulled Douglas' "pants and undergarments down to his ankles thereby visibly exposing plaintiff's groin and buttocks area to the full view of everyone present and several motorists passing by in their vehicles along the busy highway." (Docket No. 1 at ¶ 29). Douglas asserts that his "naked lower body was illuminated by the emergency lights" of the patrol cars. (Docket No. 1 at ¶ 30). Pursuant to 42 U.S.C. § 1983, the plaintiff claims that Bonafede subjected him to an unreasonable search in violation of his Fourth Amendment rights.
The state court suppression hearing testimony of Bonafede and the other officers differs from the allegations in Douglas' complaint. According to Bonafede, as he was proceeding eastbound on the New York State Thruway (near the Town of Phelps, New York) he observed a car driven by Johns that did not have a plate light or rear view mirror (Docket No. 14 at 0006). He directed the driver to pull over, approached the vehicle from the passenger side and asked the driver for identification. As he approached the vehicle, Bonafede stated that he saw Douglas "stick his hands down his pants or somewhere in the front area." (Docket No. 14 at 0011). When asked if he put something down his pants, Douglas allegedly responded "no, I was putting something in the glove compartment." (Docket No. 14 at 0011). According to Bonafede, "as soon as a window rolled down I observed a heavy odor of burnt marijuana." (Docket No. 14 at 0007). Bonafede testified that he obtained identification from all three individuals and went back to his patrol vehicle to call for assistance. He re-approached the vehicle and directed all three occupants to exit. He proceeded to perform a "cursory search" to see if they possessed weapons. (Docket No. 14 at 0009). Another State Trooper, Michael Jurek, arrived at the scene. Bonafede performed a search of the vehicle which revealed some marijuana seeks and small pieces of stem in the vehicle. As Bonafede was conferring with Jurek as to how to proceed, Bonafede observed Douglas reaching for his groin area in what, to the officer, appeared to be an attempt to "hide something or secret something." (Docket No. 14 at 0010). According to Bonefede, Douglas "grabbed it several times." (Docket No. 14 at 0010). Bonafede testified that Douglas had at least three layers of clothing on: pants, long-underwear, and shorts under the long underwear. (Docket No. 14 at 0031-0032). Bonafede stated that as soon as he attempted to search Douglas, he would "not remove his hands from his pants." (Docket No. 14 at 0011-0012). As this was occurring, Bonafede observed the top of a plastic bag inside Douglas' pants on his right leg. As he attempted to get Douglas' attention regarding the bag, Douglas "reached in and threw three bags out, which landed on the ground." (Docket No. 14 at 0012). Bonafede alerted Jurek and advised Douglas to "come over and place his hands on the vehicle because he was going to be placed under arrest." At that point, Douglas fled, running across all four lanes of the thruway and climbing a hill on the other side. (Docket No. 14 at 0012-0013). Bonafede did not chase after Douglas and lost track of Douglas as he went over the hill. (Docket No. 14 at 0013). The bags thrown by Douglas were found to contain marijuana, crack cocaine and 30 or 40 glassine bags and a razor blade. (Docket No. 14 at 0015).
The issue of whether or not Bonafede pulled Douglas' pants down was not argued at length during the state court suppression hearing. The most significant mention of the subject came on cross-examination, when Bonafede was asked: "Did [Douglas'] pants ever fall to his ankles or anything like that while you were doing that?" (Docket No. 14 at 0031). Bonefede responded "Not to my knowledge" and then proceeded to note that Douglas was wearing three layers of clothing. (Docket No. 14 at 0031-0031).
Douglas' testimony, both before the Grand Jury and at the criminal trial in this case appear to contradict the claim in the complaint that Bonafede actually pulled Douglas' pants down exposing him to public view. Before the Grand Jury, Douglas made conclusory statements about being subjected to a strip search, but described Bonafede's actual conduct as follows:
A: ... After he strip searched [one of the other occupants of the car], he came to me. I said, "I'm not going to strip search." He took the camera off. A lot of things are going through my head like why did he turn the camera off and now he's strip searching me. I was rebellious, like, "Aint't nobody going I my pants or doing nothing." He literally grabbed by pants and was struggling. This is where my resistance come in because I'm not letting him go in my pants. I keep telling him, "If you want to go in my pants, arrest me. You already had me in the car. If you felt I did something wrong, you could've arrested me and read me my rights and took me down and then we could've done that." He grabs my pants and there's resisting going on. I got scared. I'm high on weed. I smoke marijuana.
A: Yes, I was high. At this time I'm scared on the highway, going in my pants. I don't know what is the outcome. I break loose and I'm running. I run accoss the street. I could've got killed.
A: Yes. I took the chance. (Docket No. 29, Exhibit A at pages 51-52).
Similarly, although he uses the phrase "strip search," Douglas' testimony at trial suggests that, at best, Bonafede attempted to search ...