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Carl Goossens v. Dept. of Environmental Conservation

March 28, 2011

CARL GOOSSENS, PLAINTIFF,
v.
DEPT. OF ENVIRONMENTAL CONSERVATION, D.E.C. OFFICER WADE, AND (CONSENT) D.E.C. OFFICER WARD, DEFENDANTS.



The opinion of the court was delivered by: Leslie G. Foschio United States Magistrate Judge

DECISION and ORDER

JURISDICTION

On July 13, 2010, the parties to this action consented pursuant to 28 U.S.C. § 636(c)(1), to proceed before the undersigned. The matter is presently before the court on motions for summary judgment filed by Plaintiff on April 30, 2010 (Doc. No. 21), and by Defendants on June 7, 2010 (Doc. No. 26).

BACKGROUND

Plaintiff Carl Goossens ("Plaintiff" or "Goossens"), proceeding pro se, commenced this action on June 17, 2008, alleging that on November 27, 2005, Defendants New York Department of Environmental Conservation ("DEC") Officers Wade ("Wade"), and Ward ("Ward") (together, "Defendants"), unlawfully arrested Plaintiff in violation of the Fourth Amendment. Plaintiff asserts two claims for relief, both seeking monetary damages for the alleged unlawful arrest and harassment. By order filed October 29, 2008 (Doc. No. 3) ("Oct. 29, 2008 Order"), the action was terminated as against the DEC, which was also named as a defendant. Plaintiff was also ordered to show cause why the action should not be dismissed as barred by Heck v. Humphrey, 512 U.S. 447 (1994), i.e., that successful litigation of the instant claims would imply the invalidity of a criminal conviction. On December 31, 2008, Plaintiff filed an amended complaint (Doc. No. 6) ("Amended Complaint"), asserting the same claims for relief, and explaining that Plaintiff's claims are not barred by Heck, given that on May 5, 2006, Acting Livingston County Court Judge Joan S. Kohout ("Judge Kohout"), following a suppression hearing held in Livingston County Court in connection with the criminal action, charging Plaintiff with Rape in the Third Degree in violation of New York Penal Law § 130.15, then pending against Plaintiff, entered an order finding Plaintiff's November 27, 2005 arrest by Defendants was without probable cause, and suppressing statements made by Plaintiff in connection with the arrest as obtained in violation of Plaintiff's Fifth Amendment right against self-incrimination.

On April 30, 2010, Plaintiff filed a motion for summary judgment (Doc. No. 21) ("Plaintiff's motion"). Plaintiff's motion is supported by the attached Statement of Material Facts Per Local Rule 56.1(a) ("Plaintiff's Statement of Facts"), Plaintiff's Declaration in Support of Motion for Summary Judgment ("Plaintiff's Declaration"), a copy of Judge Kohout's May 5, 2006 Decision and Order ("Suppression Hearing D&O"), and Plaintiff's Memorandum of Law in Support of Motion for Summary Judgment ("Plaintiff's Memorandum").

On June 7, 2010, Defendants filed a countermotion for summary judgment (Doc. No. 26) ("Defendants' motion"), along with supporting papers including Defendants' Memorandum of Law in Opposition to Plaintiff's Motion for Summary Judgment and in Support of Defendants' Motion for Summary Judgment (Doc. No. 27) ("Defendants' Memorandum"), the Declaration of DEC Officer Brian Wade (Doc. No. 28) ("Wade Declaration"), with attached exhibit A ("Wade Declaration Exh. A"), the Declaration of DEC Officer Chris Ward (Doc. No. 29) ("Ward Declaration"), the Declaration of Assistant New York Attorney General George Michael Zimmermann in Opposition to Plaintiff's Motion for Summary Judgment and in Support of the Defendants [sic] Motion for Summary Judgment (Doc. No. 30) ("Zimmmermann Declaration"), with attached exhibits A and B ("Defendants' Exh(s). __"), and Defendants' Local Rule 56(1) Statement and Response to Plaintiff's Local Rule 56(1) Statement (Doc. No. 31) ("Defendants' Statement of Facts"). In opposition to Defendants' motion, Plaintiff filed on July 27, 2010, Plaintiff's Response to Defendant's [sic] Counterstatement of Undisputed Facts (Doc. No. 39) ("Plaintiff's Response"). Oral argument was deemed unnecessary.

Based on the following, Plaintiff's motion is DENIED; Defendants' motion is GRANTED.

FACTS*fn1

On November 27, 2005, at 4:20 P.M., Defendants DEC Officers Brian Wade ("Wade") and Chris Ward ("Ward") (together, "Defendants"), were driving a marked DEC police vehicle while on routine patrol in the Town of Avon ("Avon"), located in Livingston County, New York, when Defendants observed a van parked in a private driveway leading to a cornfield on Nations Road in Avon. It was deer hunting season and Defendants had a duty as DEC police officers to enforce New York laws regarding, inter alia, wildlife, hunting and hunting licenses. Because cornfields in late autumn often attract deer and deer hunters, upon observing the van parked in the cornfield at dusk and thinking the van may belong to a hunter, Defendants decided to approach the van to check for hunting and license law compliance.

As Defendants pulled their patrol vehicle behind the van, Defendants noticed two people were in the back of the van, one of whom climbed from the back to the front of the van, while the other person peered out the window before lying down in the back of the van as if to hide from Defendants' view. Defendants exited the patrol vehicle, their guns holstered, and approached the van. Upon arriving at the van's driver's side door, Ward observed a male sitting in the driver's seat, later identified as Plaintiff, and another person lying on her side in the back of the van. Wade approached the passenger-side of the van where Wade saw Plaintiff sitting in the driver's seat pulling on his pants which had been lowered to his knees, and the other occupant, later identified as Mary Beth Atkins ("Atkins"), Plaintiff's girlfriend, lying on her back hiding from view. Wade opened the passenger side door to speak with the occupant in the rear of the vehicle, whom Wade observed to be a female in her early teens, and who was rearranging her clothing, pulling her shirt down and straightening her pants. Wade asked the female occupant her name and age, and she identified herself as Mary Beth (Atkins), age 18. In response to Wade's questioning, Atkins denied having sex with Plaintiff and refused to speak any further with Wade or Ward.

While Wade was addressing Atkins, Ward, at Wade's direction, opened the van's driver's side door and asked Plaintiff to exit the van and step in front of the patrol vehicle a short distance behind the van. Plaintiff complied and, in response to Ward's request for identification, produced his New York State driver's license, showing Plaintiff's birthday as March 5, 1984, establishing Plaintiff was then 21 years old. After conversing with Atkins, Wade walked to the front of the patrol vehicle where Plaintiff was being detained by Ward and asked Plaintiff his age and Plaintiff responded he was 20. Wade than asked Plaintiff the name and age of the vehicle's female occupant, whom Plaintiff identified as Atkins, age 16. In response to Wade's further questioning, Plaintiff admitted he had been having sex with Atkins in the van. Wade then inquired whether Plaintiff thought it was wrong for a 20-year old to have sex with a 16-year old, and Plaintiff nodded that he did. At this point, Plaintiff was not free to leave because Defendants were concerned that Plaintiff was having illegal sexual contact with Atkins who was younger than 17, the age of consent in New York. Wade Declaration ¶ 19; Ward Declaration ¶ 18.

Wade then contacted the Livingston County Sheriff's Department by the patrol vehicle's radio, requesting assistance because the Sheriff would necessarily have more experience with enforcing New York penal laws. Soon thereafter, Livingston County Sheriff's Deputies Mann and Rittenhouse arrived. Deputy Mann was able to establish that Plaintiff had been convicted of statutory rape of Atkins when she was 13 years old, but was unable to determine whether Plaintiff's sex offender status resulted in any restrictions on Plaintiff's contact with Atkins or others.

When Defendants asked Plaintiff about his sex offender status, Plaintiff responded he did not wish to discuss the matter. Instead, Plaintiff became angry and denied having just admitted he was having sex with Atkins, stating that his pants were pulled down because he was planning to urinate.

Meanwhile, Atkins telephoned her father who arrived to take Atkins home. Atkins's father informed Wade that his daughter was only 15 years old, that he was aware Atkins was with Plaintiff, that neither he, nor Atkins at that time wished to make any complaint against Plaintiff, and that Plaintiff had not forced Atkins into sex. Plaintiff then requested permission to telephone his mother, who eventually arrived at the scene. Plaintiff drove from the scene in his own vehicle.

In connection with the stop, Officer Wade completed a New York State DEC Office of Public Protection Complaint Form ("DEC Complaint Form"),*fn2 on which Wade indicated the complaint pertained to an incident that occurred on November 27, 2005, on Nations Road in Avon. DEC Complaint Form at 1. The nature of the complaint is reported as "Penal Law." Id. In describing the incident, Wade reported that while conducting routine patrol for deer hunting activity along Nations Road, Wade checked the occupants of a vehicle parked in a cornfield off Nations Road. Id. The occupants of the vehicle were determined to be Plaintiff and Atkins. Id. Wade concluded that "[t]he case possibly involves a statutory rape of a 15 year old female." Id.

An investigation of the incident was opened by Livingston County Sheriff Investigator Kimberly Moran ("Moran"), who was familiar with Plaintiff as a registered sex offender. Moran, on December 7, 2005, spoke with Atkins at her school, obtaining a signed statement in which Atkins admitted having sex with Plaintiff in Plaintiff's van while it was parked in a cornfield off Nations Road on November 27, 2005, before being interrupted by Defendants. Supporting Deposition of Maryelyzabeth [sic] Atkins ("Atkins Supporting Deposition"),*fn3 at 1. Atkins describes the point at which the van's passenger side sliding door was opened as "[t]he DEC guy opened the side door and told me to step out of the van, he talked to me th[en] I got back into the van. He asked me how old I was and who I was. At first I lied and said I was 18, I am only 15." Atkins Supporting Deposition at 1. Atkins does not describe Defendant's actions during the encounter as involving the use of any force or harsh language.

Later that same day, Moran, while operating an unmarked Sheriff's vehicle, observed Plaintiff's vehicle at an intersection and tried, unsuccessfully, to get Plaintiff's attention. Moran followed Plaintiff for a short distance before activating the vehicle's emergency lights and pulling over Plaintiff to speak with him. Moran advised Plaintiff she wished to speak with Plaintiff at his house, and Plaintiff agreed. Moran and Plaintiff separately drove their respective vehicles to Plaintiff's residence, where Moran gave Plaintiff the option of speaking with Moran inside either Plaintiff's house, or Moran's vehicle. Plaintiff then entered Moran's vehicle and Moran administered to Plaintiff a warning pursuant to Miranda v. Arizona, 384 U.S 436 (1966) ("Miranda warning"), thereby advising Plaintiff of his Fifth Amendment rights against self-incrimination.

Moran interviewed Plaintiff for two hours, during which Plaintiff made additional incriminating statements regarding his relationship with Atkins and the events of November 27, 2005. Based on the interview, Moran prepared a statement for Plaintiff to sign ("Plaintiff's Voluntary Statement"),*fn4 including that Plaintiff and Atkins were having sex in Plaintiff's van when a DEC officer approached Plaintiff's van and asked Plaintiff questions. Plaintiff admitted that at that time, he was on probation for a prior conviction of having sex with Atkins when she was 13 years old, and that he was not permitted to be around anyone less than 17 years of age.

The statements Defendants obtained from Plaintiff and Atkins on November 27, 2005, along with the December 7, 2005 signed statement prepared by Moran and signed by Plaintiff, were presented to the Livingston County Grand Jury, which indicted Plaintiff on one count of statutory rape. Plaintiff, as the defendant in Livingston County Court, filed an omnibus motion seeking, inter alia and as relevant to the instant action, to suppress the statements he made to Defendants on November 27, 2005, and the December 7, 2005 signed statement. In a Suppression Hearing D&O, Judge Kohout suppressed the statements Plaintiff made to Defendants at the scene on November 27, 2005, and also found that Defendants, when they approached Plaintiff's van, "had no reason to believe that either criminal or hunting violations were occurring," Suppression Hearing D&O at 3, that there was no evidence that criminality was afoot, id. at 8, that Plaintiff, when interviewed by Defendants on November 27, 2005, had been detained and was not free to leave, but was in police custody, id. at 8, and that Defendants also were without either reasonable suspicion that Plaintiff was involved in any criminal act or concern for the safety of Plaintiff and Atkins. Id. at 9. Because Plaintiff was in police custody, and was not administered any ...


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