The opinion of the court was delivered by: Gary L. Sharpe District Court Judge
MEMORANDUM-DECISION AND ORDER
Plaintiffs Donald Mariani and Susan Overbaugh bring this action under 42 U.S.C. § 1983 against defendant Glenn Stevens, alleging violations of their Fourth Amendment rights. (See Compl., Dkt. No. 1:3.) Pending is Stevens's motion for summary judgment on plaintiffs' fifth cause of action for warrantless search of their residence. (Dkt. No. 26.) For the reasons that follow, the motion is granted.
Donald Mariani and Susan Overbaugh share a residence at 7108 Suzanne Lane, Guilderland, New York. (See Def. SMF ¶ 1, Dkt. No. 26:6.) On July 7, 2005, Mariani was arrested at his residence by Guilderland Police Officer Glenn Stevens. (See id.) At the time of his arrest, Mariani and Overbaugh were suspects in a theft of food that occurred earlier the same day at the Price Chopper in Wilton, New York. (See id. at ¶ 3.) The matter was being investigated by the New York State Police, (see id.), and Stevens was acting pursuant to the State Police's request that he instruct Overbaugh to contact the State Police regarding the theft, (see Compl. ¶ 10, Dkt. No. 1:3).
When Officer Stevens first arrived to plaintiffs' house, Mariani was outside the house. (See Pls. Resp. SMF ¶ 1, Dkt. No. 33:5.) While the nature and contents of the initial exchange is in dispute, both Stevens and Mariani testified that Officer Stevens exited his car, approached Mariani, and asked him whether Overbaugh resided at the house, to which Mariani answered in the affirmative. (See Murphy Aff., Def. Ex. C, Stevens Dep. at 15-17, Dkt. No. 26:4; Mariani Dep. at 45-52, Dkt. No. 33:1.) Immediately thereafter, Overbaugh arrived home, pulling into the driveway. (See Keach Aff., Pls. Ex. A, Mariani Dep. at 48, Dkt. No. 33:1.) With Mariani standing next to the driver's side door of Overbaugh's car, Officer Stevens walked over to Overbaugh to ask if she was in fact Susan Overbaugh. (See id. at 51-53.)
After Overbaugh exited her car, Mariani took her by the arm and began to walk her back to the house, but on the way, Mariani turned around to tell Officer Stevens "if you don't have a warrant, you get the fuck out of here right now." (See id. at 53.) Stevens told Mariani to let go of Overbaugh's arm. (See id.; see also Murphy Aff., Def. Ex. C, Stevens Dep. at 18, Dkt. No. 26:4.) Mariani responded by telling Officer Stevens, "[t]his is private property.... I live here, she lives here. Now, you get the fuck out of here right now." (See Keach Aff., Pls. Ex. A, Mariani Dep. at 54, Dkt. No. 33:1.) During this exchange, Mariani told Overbaugh not to speak to Officer Stevens. (See id. at 54-55.)
At this time, Officer Stevens alleges that he told Mariani he was under arrest and attempted to take Mariani into custody. (See Murphy Aff., Def. Ex. C, Stevens Dep. at 19, Dkt. No. 26:4.) While the sequence of the following events are disputed, Stevens then sprayed Mariani in the face with pepper spray. (See Keach Aff., Pls. Ex. A, Mariani Dep. at 60-62, Dkt. No. 33:1.) Mariani then said, "[n]ow you're really fucked," said there was an active camera in the garage, and ran into the house. (See id. at 62.) Officer Stevens pursued Mariani into the house. (See id. at 63.) Inside the house, Stevens repeatedly told Mariani to get on the floor, sprayed him in the face again, and continued to tell Mariani to comply with his orders. (See id. at 64-70.) Several other officers then entered the house, forced Mariani to the ground, and placed him in handcuffs. (See id. at 70-72.) After submitting to a pat-down search, Mariani was taken out of the house and placed in a transport car. (See id. at 73.) Mariani did not say anything further. (See id. at 74-75.)
Officer Stevens then asked Overbaugh for permission to search the residence. (See Def. SMF ¶ 4, Dkt. No. 26:6.) Overbaugh consented to Stevens's request, saying "yes," that she "had nothing to hide." (Keach Aff., Pls. Ex. B, Overbaugh Dep. at 53, Dkt. No. 33:2.) And upon Stevens's specific request to search the cellar, Overbaugh again consented, saying "go ahead." (See id. at 53-54.) As a result of the search, Officer Stevens took several food items from the house and the video tape from the garage. (See id. at 57-60.)
Mariani was charged with disorderly conduct, violent behavior, resisting arrest, third-degree menacing, and criminal possession of stolen property, all in violation of the New York State Penal Law. (See Defs. SMF ¶ 2, Dkt. No. 26:6.)
On July 7, 2008, Mariani and Overbaugh filed suit against Stevens, Joseph Mazzone, James Murley, and the Town of Guilderland, asserting six causes of action under the Fourth Amendment of the United States Constitution pursuant to § 1983: (1) false arrest; (2) malicious prosecution; (3) excessive use of force; (4) unreasonable seizure; (5) warrantless search of their home; and (6) implementation of unconstitutional policies and failure to train, supervise, discipline, and implement preventive policies. (See Compl., Dkt. No. 1:3.) By stipulation and order, Mariani and Overbaugh's action against Mazzone, Murley, and the Town of Guilderland was ...