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Bourne v. County of Nassau

January 20, 2009

SHERESE BOURNE, PLAINTIFF,
v.
COUNTY OF NASSAU, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Lindsay, Magistrate Judge

MEMORANDUM AND ORDER

Plaintiff Sherese Bourne ("Bourne" or "the plaintiff") brings this action against the County of Nassau and individually named officers of the Nassau Country Police Department (collectively "Defendants") alleging: (1) deprivation of civil, state and constitutional rights under 42 U.S.C. § 1983; (2) municipal liability against the County of Nassau County; (3) false arrest and false imprisonment; (4) unlawful search; and (5) assault. (See Compl. ¶¶ 54-72.) Bourne has voluntarily withdrawn her claims against the Nassau County Police Department and all claims brought under 42 U.S.C. §§ 1981, 1985. (See Pl.'s Mem. of Law in Opp'n to Defs.' Mot. for Summ. J. at 4 n.1.)

The parties have consented to the undersigned's jurisdiction pursuant to 28 U.S.C. § 636(c). (See Docket Entries 49 & 53.) Defendants now move for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. For the following reasons, Defendants' motion is granted and Bourne's complaint is dismissed in its entirety.

BACKGROUND

This action arises due to Bourne's arrest on August 15, 2005, for criminal sale of a controlled substance. (Pl.'s & Defs.' 56.1 Stmt ¶ 20.)*fn1 Bourne's arrest resulted from an investigation conducted by Nassau County Police Detectives Silvia Marquez ("Detective Marquez") and Richard Westhoff ("Detective Westhoff") based upon information received from a concerned citizen (the "C.I.").*fn2 (Id. ¶ 1; Dep. of Detective Marquez at 61 .) This C.I. had previously provided the Nassau County Police Department with reliable information and participated in several drug buys that led to one conviction or guilty plea for criminal sale of heroin.*fn3 (Defs.' 56.1 Stmt. ¶ 29; see also Dep. of Detective Marquez at 75-76; Dep. of Detective Westhoff at 90, 95; Decl. of Nicole Denver, Esq., Ex. G.)

It is undisputed that, in 2004, the C.I. informed Detectives Marquez and Westhoff that a black female named Sherese Bourne residing in Roosevelt, New York, was selling crack cocaine in the area. (Pl.'s 56.1 Stmt. ¶ 1; Dep. of Detective Westhoff at 104-05; Dep. of Detective Marquez at 62-64.) The C.I. provided Detectives Marquez and Westhoff with Sherese Bourne's full name. (Dep. of Detective Marquez at 63.) The C.I. also claimed to know Sherese Bourne from the neighborhood and to have personally witnessed Bourne selling drugs. (Defs.' 56.1 Stmt. ¶ 4; Dep. of Detective Marquez at 62; Dep. of Detective Westhoff at 106.) Although the C.I. was unsure of Sherese Bourne's exact age, the C.I. stated that Sherese Bourne was twenty-six to twenty-eight years old, with a possible birth date of April or July, in the 1970's, possibly 1978.(Pl.'s & Defs.' 56.1 Stmt. ¶ 5; Dep. of Detective Marquez at 63, 122.) The C.I. further informed Detectives Marquez and Westhoff that Sherese Bourne had a prior arrest for marijuana possession. (Pl.'s & Defs.' 56.1 Stmt. ¶ 7.)

Armed with this information, Detectives Marquez and Westhoff undertook a criminal justice data search that produced information about the plaintiff. (Dep. of Detective Marquez at 63-65.) The available data on the plaintiff mirrored the information provided by the C.I. (Id.)Consistent with the information gleaned from the database, Sherese Bourne is a black female, residing in Roosevelt, New York, born in July 1978, placing her in her 20s in 2004, and has a prior arrest for marijuana. (Pl.'s & Defs.' 56.1 Stmt. ¶¶ 3, 6, 8.)

Armed with a cell phone number, Detectives Marquez and Westhoff had the C.I. make an undercover call to purchase crack cocaine from Sherese Bourne on November 30, 2004. (Defs.' 56.1 Stmt. ¶ 9; Dep of Detective Marquez at 120.) A woman who identified herself as "Sherese" answered the phone. (Id.) Sherese agreed to meet the C.I. in the vicinity of 38 West Roosevelt Avenue, Roosevelt, New York. (Id.) The C.I. was instead met by another individual, later identified as Angelica Riley, who delivered crack cocaine. (Pl.'s Mot. in Limine, Ex C at 1.).

On or about December 15, 2004, Detectives Marquez and Westhoff arranged for the C.I., to place another call to "Sherese" to purchase crack cocaine. (Pl.'s & Defs.' 56.1 Stmt. ¶ 11.) This time "Sherese" showed up to deliver the crack cocaine to the C.I. (Defs.' 56.1 Stmt ¶ 12; Dep. of Detective Westhoff at 112.) Detective Marquez's supplementary report from this purchase states that "Sherese" arrived in a red minivan with New York registration DAE8342. (Decl. of Nicole Denver, Esq., Ex. H at 1.) Subsequent investigation revealed that this vehicle was registered to a Diane Riley, residing at 38 West Roosevelt Avenue, the location of the first buy. (Pl.'s 56.1 Stmt. ¶ 12; Dep. of Detective Westhoff at 137.)

On or about January 10, 2005, Detective Marquez and Detective Westhoff, accompanied by Detective Melvin Boone ("Detective Boone"), once again met with the C.I. (Pl.'s & Defs.' 56.1 Stmt. ¶ 13.) The C.I. arranged for a third purchase of crack cocaine from "Sherese." (Defs.' 56.1 Stmt. ¶ 13; Dep. of Detective Boone at 45.) Detective Boone drove the C.I. to the area of West Roosevelt Avenue to meet with "Sherese" and purchase the crack cocaine. (Pl.'s & Defs.' 56.1 Stmt. ¶ 14.) Detective Boone was approximately ten feet away from "Sherese" and the C.I. when the transaction that took place. (Id. ¶ 15.) Detective Boone testified that he saw "Sherese's" face and observed her for around a minute. (Dep. of Detective Boone at 47-49.)

Both face-to-face drug buys between "Sherese" and the C.I. were audiotaped and the second buy was videotaped. (Pl.'s & Defs.' 56.1 Stmt. ¶ 19.) Detective Marquez monitored both drug transactions with "Sherese" via a transmitter. (Dep. of Detective Marquez at 69-71.) Detective Marquez also monitored the phone calls that the C.I. placed to "Sherese." (Id. at 67.) Although Detective Marquez's interview notes from the first meeting with the C.I. describe "Sherese" as "Jamaican," Detective Marquez did not detect any accent when she monitored the three phone calls that the C.I. placed to "Sherese." (Id.; Decl. of Nicole Denver, Esq., Ex. D at 2.) Detectives Marquez and Westhoff viewed the videotape but found that it difficult to identify "Sherese" from the video. (Dep. of Detective Westhoff at 98-99, 165; Dep. of Detective Marquez at 71.) Detective Boone did not review any of the tapes prior to Bourne's arrest. (Dep. of Detective Boone at 55.)

On or about February 8, 2005, the C.I. identified the plaintiff as "Sherese" from a six-panel photo pack. (Pl.'s & Defs.' 56.1 Stmt. ¶ 17; Decl. of Nicole Denver, Esq., Ex. L.) The photo pack was assembled using the plaintiff's arrest photograph and five arrest photos of women who matched Bourne's age and physical appearance. (Dep. of Detective Marquez at 79-80.) On the basis of the C.I.'s photo identification of the plaintiff, Defendants decided to arrest Bourne but waited approximately six months out of concern for the C.I.'s safety. (Dep. of Detective Marquez at 92, 94.) On or about August 15, 2005, at Detectives Westhoff and Marquez's direction, defendant Nassau County Police Officer Charles Johnson ("Officer Johnson") arrested Bourne for criminal sale of a controlled substance. (Pl.'s & Defs.' 56.1 Stmt. ¶ 20.) Officer Johnson arrested Bourne within a block of the West Roosevelt Avenue location where the C.I. made the purchases of crack cocaine from Sherese. (Dep. of Marquez at 104-105; Dep. of Officer Johnson at 38-39.)

Bourne was taken into custody at the Nassau County Narcotics Bureau. (Pl.'s & Defs.' 56.1 Stmt. ¶ 23.) Subsequent to Bourne's arrest, Detective Marquez searched the plaintiff to ensure that she was not carrying any contraband. (Dep. of Detective Marquez at 96-97; Dep. of Bourne at 73-74.) While the plaintiff was in custody, Detective Boone identified Bourne as "Sherese." (Pl.'s & Defs.' 56.1 Stmt. ¶ 22.) Finally, after being advised of her Miranda rights, Bourne admitted that she sold crack cocaine when she was younger but denied involvement in any recent transactions. (Dep. of Detective Marquez at 93.)

Bourne was incarcerated at the Nassau County Correctional Center. (Pl.'s & Defs.' 56.1 Stmt. ¶ 24.) Upon her admittance, she was strip searched by correctional officers. (Dep. of Bourne at 123-24.) Approximately seven to eight days later, the C.I. placed a phone call to Detective Westhoff to state that he/she had identified the wrong person from the photo pack. (Pl.'s & Defs.' 56.1 Stmt. ¶ 25; Dep. of Detective Westhoff at 174-75.) Detective Westhoff and Detective Marquez immediately notified their supervisors and the District Attorney's Office that the C.I. had recanted. (Pl.'s & Defs.' 56.1 Stmt. ¶ 26.) The District ...


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