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Nelson v. Hernandez

December 11, 2007

KEVIN NELSON, PLAINTIFF,
v.
SPECIAL AGENT FNU HERNANDEZ AND SPECIAL AGENT JOHN CHANG OF THE UNITED STATES DEPARTMENT OF THE TREASURY BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, 241 37TH STREET, BROOKLYN, NY; AND DETECTIVE DAVID INTRATOR OF THE DRUG ENFORCEMENT ADMINISTRATION JOINT FIREARMS, DEFENDANTS.



The opinion of the court was delivered by: Gershon, United States District Judge

OPINION AND ORDER

Plaintiff Kevin Nelson brings this action against defendants Special Agent John Chang and Detective David Intrator for false arrest, false imprisonment, and negligence.*fn1 Specifically, Nelson asserts First and Fourth Amendments claims pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). Defendants now seek summary judgment on Nelson's claims, both on the merits and, alternatively, on the basis that they are entitled to qualified immunity.*fn2 For the reasons set forth below, defendants' motion is granted.

FACTS

Unless otherwise indicated, the following facts are undisputed. Plaintiff Kevin Nelson, a six foot tall black male, was arrested on June 7, 2002 for possession and distribution of narcotics. At the time of his arrest, he was 29 years old and weighed approximately 180 pounds. Defendant John Chang is a Special Agent ("SA") with the Department of Justice Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF"); he has been a SA since 2001. Defendant David Intrator is a Detective employed by the Kings County District Attorney's Office and, from 1999 to 2003, was assigned to the ATF Joint Firearms Task Force. Intrator has worked at the Kings County District Attorney's Office for approximately eighteen years. During the relevant time period, both defendants were assigned to the investigation of a group of individuals involved in the distribution and sale of firearms and narcotics across state lines. Among those individuals were Rasheem Jackson and Ronald Stephens.

During the course of the investigation, and through the use of a confidential informant ("CI") and an undercover officer, the defendants learned that an individual identified as "C" participated in the sale and distribution of narcotics. Defendants first learned of C's involvement during an October 24, 2001 planned operation for the controlled purchase of narcotics from Jackson. On that afternoon, Jackson instructed the CI to pick up C from a three-story residential building located at 177 Hart Street. As part of the planned operation, the CI was driving a vehicle supplied by the ATF which was wired to transmit audio to the surveillance team by radio communications during the course of the operation. The vehicle was also equipped with a hidden video recorder which captured a black and white video of the individuals inside the vehicle.*fn3

When Jackson and the CI arrived at 177 Hart Street, C was not present, though afterwards they picked him up at a nearby subway station. C sat in the back seat of the vehicle while the CI drove and Jackson sat in the front passenger seat. C, Jackson, and the CI then drove to Manhattan to a previously designated location to conduct the narcotics transaction. After arriving at that location, at approximately 3:25 p.m., an undercover officer purchased heroin, through the CI, from Jackson and C. The undercover officer met C only on that one occasion, for a couple of minutes. Neither of the defendants was able to get a good look at C despite participating in the operation. Although Intrator was part of the surveillance team following the vehicle containing the CI, Jackson and C, he never directly saw C. Chang, who was assigned to the undercover officer to keep him away from the buy location until the undercover received word to conduct the transaction, was not part of the surveillance team that followed the CI.

After the transaction was completed, ATF officers weighed the narcotics purchased from C and Jackson and discovered that C and Jackson had sold the undercover only 12.1 grams of heroin rather than the agreed upon twenty grams. Later that evening, at approximately 10:50 p.m., the CI purchased seven additional grams of heroin from Jackson and C in front of 177 Hart Street to complete the earlier transaction. According to the CI, C exited the premises at 177 Hart Street, handed the CI a plastic bag containing heroin and accepted cash from the CI in return. Members of the ATF conducted surveillance of the CI's purchase of the additional seven grams of heroin, with Chang positioned approximately two blocks away from 177 Hart Street. Intrator was not present, nor was he a part of the surveillance team for the evening operation.

Following the October 24, 2001 transactions, the CI reported that C lived at 177 Hart Street. The CI informed ATF officers that Jackson and C were operating a heroin business and that, on a daily basis, the CI would pick up Jackson in the CI's vehicle and then proceed to 177 Hart Street to pick up C and bundles of heroin for delivery. The CI further informed law enforcement officers that they (he, Jackson and C) would stop by 177 Hart Street before each trip to restock on bundles of heroin. Afterwards, defendants attempted, through various means of investigation, to learn the identity of C. For example, in January 2002, Chang conducted surveillance of 177 Hart Street but was unsuccessful in his attempts to observe Jackson or others engaging in criminal activity.

In February 2002, Stephens and Jackson were each arrested pursuant to a federal arrest warrant issued from the United States District Court, Southern District of New York, for their alleged involvement in a conspiracy to sell firearms without a license and, with regard to Jackson only, conspiracy to sell narcotics. On April 9, 2002, a Superceding Indictment was issued against Stephens, Jackson, David Matthews, Porchetta Lee, Comeshia Ellison and the individual identified as C, wherein C was charged with possession and distribution of narcotics in violation of 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(C). Stephens, Jackson and the three other named individuals eventually pled guilty in the underlying criminal action.

In an attempt to identify the individual referred to as C, Chang, Intrator and an Assistant U.S. Attorney from the U.S. Attorney's Office, Southern District of New York, questioned Stephens during a May 16, 2002 proffer session. During the session, Stephens provided the following information: C lived on Hart Street; he used to live or had family that lived in Queens; he was a good friend of Jackson's; Jackson met C while incarcerated; and C's name might be Curtis. Stephens further reported that he had met C in person. After the session, Stephens refused to cooperate and no additional proffer sessions were held.

On May 22, 2002, an auto track check was conducted on 177 Hart Street, which revealed that a person named Kurtis Vincent resided at that location. Chang and Intrator then interviewed Vincent at his place of employment. The officers discounted Vincent as C because Vincent was Hispanic and C was black. Vincent informed the officers that two other males, J.J. and Kevin (last names unknown), lived at 177 Hart Street. The officers also discounted J.J. as C because J.J. was too young to fit the description of C. Vincent further informed the officers that Kevin had family in Queens County, New York.

On June 4, 2002, in an attempt to identify C, Chang and Intrator visited the residence at 177 Hart Street. Chang and Intrator attempted to speak with Nelson, who was present at 177 Hart Street but proved uncooperative and refused to allow the officers to thoroughly examine his identification, a New York State driver's license. Chang and Intrator did, however, see that Nelson's license revealed a Rosedale, Queens address. The interaction with Nelson lasted only a couple of minutes. After unsuccessfully attempting to speak with Nelson, Chang and Intrator conducted surveillance of the premises and observed Nelson exit the building located at 177 Hart Street and get into a Jeep bearing New York license plate number BKK-3322. A DMV check revealed that Nelson's vehicle was registered to Kevin Nelson at 130-57 236th Street, Rosedale, Queens. A criminal history check further revealed that Nelson was a convicted felon and was currently on supervised parole.

As a result of Nelson's conviction, defendants were able to obtain a photograph of Nelson from the High Intensity Drug Trafficking Area ("HIDTA") photo system. On June 5, 2002, Intrator and Hernandez met with the CI to present a photo array to him. The CI informed Intrator and Hernandez that he had met with C eleven times and that he had last seen C the previous month, in May 2002. The CI was shown the photo array, and he identified Nelson as the individual referred to as C. The CI was then shown another photo of Nelson; the CI confirmed that Nelson was C. Intrator relayed this information to Chang, who was not present for the photo array.

On June 7, 2002, Nelson was arrested at 177 Hart Street pursuant to a federal arrest warrant for C, issued by the United States District Court for the Southern District of New York, and the April 9, 2002 Superceding Indictment charging C with possession and the distribution of narcotics. Chang and Intrator were members of the arrest team.

Subsequent to his arrest, Nelson was incarcerated in the Metropolitan Correctional Center ("MCC") from June 7, 2002 through September 30, 2002, when the criminal charges against him were dismissed. While incarcerated, Nelson notified the U.S. Attorney's Office for the Southern District of New York that he had an alibi for October 24, 2001. He claimed that he was working for L. Richards Plumbing & Heating from 7:00 a.m. to 3:30 p.m.*fn4 Intrator was informed by the U.S. Attorney's Office for the Southern District of New York of Nelson's alleged alibi.

On September 5, 2002, Chang and Intrator visited Nelson's employer, L. Richards Plumbing and Heating, to obtain Nelson's employment records and time sheet information for October 24, 2001. Chang and Intrator found the following: the original timesheets for the week ending October 24, 2001 had been altered with respect to the number of hours Nelson worked that week; the sign in/out sheets prior to October 24, 2001 were missing; the sign in/out sheet for October 24, 2001 did not indicate times of arrival or departure; and no information for "Michael," the individual who allegedly worked with Nelson on October 24, 2001, was available and no one at the business could supply Michael's last name. On September 6, 2002, Chang and Intrator interviewed Len Richards, the owner of the business, who informed the officers that Nelson was an unreliable employee who took days off without notifying anyone. Richards also stated that no one at the company could be sure of when Nelson may have worked on October 24, 2001 because of the business's inaccurate record keeping system.

Chang and Intrator subsequently visited a home in New Rochelle, New York, in which Nelson claimed to have been working on October 24, 2001. Chang and Intrator questioned a woman at the residence, who explained that Nelson was at the home on October 24, 2001, but that she could not remember when Nelson arrived or when he left. Richards confirmed that Nelson participated in work on a boiler in the New ...


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