The opinion of the court was delivered by: Hurley, Senior District Judge:
The purpose of this Memorandum is to address whether a new trial is warranted on the following ground: the Court's failure to, sua sponte, instruct the jury that plaintiff's misdemeanor drug arrest, standing alone, was insufficient as a matter of law to justify the strip search to which she was subjected.
Plaintiff Stacey Hartline ("plaintiff") filed suit against defendants Anthony Gallo ("Gallo"), Darren Gagnon ("Gagnon"), Marla Donovan ("Donovan"), Jim Sherry ("Sherry") and the Incorporated Village of Southampton ("Southampton") (collectively "defendants") asserting various claims stemming from an alleged unlawful strip search conducted by Southampton Village Police on January 6, 2003. At the conclusion of discovery plaintiff moved for summary judgment on liability and defendants cross-moved for summary judgment. The Court granted defendants' motion finding that the strip search of plaintiff was accompanied by individualized reasonable suspicion that plaintiff was in possession of contraband and therefor the strip search did not violate plaintiff's constitutional rights. See Memorandum and Order dated Sept. 30, 2006 at 20. On appeal, the Second Circuit reversed. Hartline v. Gallo, 546 F.3d 95 (2d Cir. 2008). The Circuit Court held, inter alia, that this Court had erroneously concluded that defendants were entitled to summary judgment on plaintiff's claim that the strip search was conducted in violation of the Fourth Amendment. When viewed in the light most favorable to plaintiff as non-movant, the Second Circuit concluded that the evidence on the motion demonstrated a violation because of the absence of individualized suspicion that she was secreting contraband on her person and remanded the case for further proceedings. Id. at 97.
Thereafter, the case was tried before a jury over a period of nine days. The jury returned a verdict in favor of the defendants. More specifically, the jury found that plaintiff did not establish that Gallo, Gagnon, Donovan or Sherry violated her federal civil rights by either subjecting her to a strip search without reasonable suspicion in violation of the Fourth Amendment or denying her equal protection in violation of the Fourteenth Amendment.
Plaintiff thereafter moved for judgment as a matter of law pursuant to Fed. R. Civ. P. 50(b) or, alternatively for a new trial pursuant to Fed. R. Civ. P. 59. By Memorandum and Order dated August 4, 2010, the Court denied the motion for judgment as a matter of law finding that the evidence at trial permitted the jury to conclude that the defendants had reasonable suspicion to believe that plaintiff was secreting contraband on her person. Memorandum and Order dated Aug. 4, 2010 at 3-11. Specifically, the Court concluded that the testimony at trial permitted the jury to conclude that the defendants had reason to believe that Hartline was under the influence of narcotics at the time of arrest as Gallo saw her smoking a marijuana pipe, the truck was filled with smoke, he found the smoldering pipe, she looked "stoned", and was "giggly."
Officer Gallo found a container with only a small amount of marijuana, which according to Gallo Plaintiff identified as "shake", as well as several "roaches." Assuming the jury concluded that the amount of marijuana in the container was insignificant, the fact that the vehicle search did not disclose the source of the burning marijuana in the pipe could suggest that, unless the drugs in the pipe represented the last of her immediate stash, the remainder was on her person. (Cf. Tr. at 467 [*fn1 ] (Gagnon's testimony that "There wasn't a lot of marijuana there, and it is possible she secreted more on her person.").) Another suspicious fact found in the trial evidence was the large amount of cash discovered in her purse prior to the search according to the testimony. These facts support the existence of reasonable suspicion. See, e.g., Wachtler v. County of Herkimer, 35 F.3d 77, 80 (2d Cir. 1994) ("possession of $1,000 in cash might have seemed a ground for suspecting drug trafficking and the possible presence of contraband."); Easton v. City of New York, 2009 WL 1767725 (E.D.N.Y. 2009) (that plaintiff was smoking marijuana at time of arrest, a bag of marijuana was found incident to his arrest and he was carrying $1,000.00 in cash supported reasonable suspicion for strip search).
Id. at 9-10 (footnotes omitted).
The Court then turned to the motion for a new trial which was premised on the argument that "defendants' stated justifications for the strip search lack credibility." Memorandum and Order dated Aug. 4, 2010 at 13. The Court found there was sufficient evidence to preclude it from concluding that the jury's verdict was seriously erroneous or a miscarriage of justice. Id. at 13- 14. However, having reviewed its charge to the jury the Court expressed concern as to whether its reasonable suspicion charge was proper even though plaintiff did not object to it. Id. at 14. As to reasonable suspicion, the Court charged the jury as follows:
The Fourth Amendment to the United States Constitution provides in pertinent part, the right of the people to be secure in their persons against unreasonable searches shall not be violated.
It is well established that the Fourth Amendment precludes officials from performing strip searches of arrestees charged with misdemeanors or other minor offenses unless the officials have a reasonable suspicion that the arrestee is concealing weapons or other contraband upon their person, based upon the crime charged, the particular characteristics of the arrestee, and/or the circumstances of the arrest.
Reasonable suspicion has been defined by the appellate courts as something stronger than a hunch but something less than probable cause. To understand that definition you need to understand probable cause. That term, that is, probable cause, means reasonable grounds to believe that an offense has been committed by a suspect. Again, reasonable suspicion, the applicable standard here, is something less than probable cause but greater than a hunch.
. . . To establish reasonable suspicion, the officers involved must point to specific objective facts and rational inferences that they are entitled to draw from those facts in light of their experience. The factors that you may consider, among others, and to the extent you deem it appropriate, in determining whether the defendant officers had reasonable suspicion at the time of the search to believe plaintiff had illegal drugs hidden on her person include:
Excessive nervousness, unusual conduct, information showing pertinent criminal propensities, loose-fitting or bulky clothing, discovery of incriminating matter during less intrusive searches of their person or property, lack of employment or a claim of self employment, evasive or contradictory ...