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Colleen Mckim and Larry v. County of Rensselaer; Hon. Jack Mahar

June 28, 2011

COLLEEN MCKIM AND LARRY AARON, PLAINTIFFS,
v.
COUNTY OF RENSSELAER; HON. JACK MAHAR, RENSSELAER COUNTY SHERIFF; RENSSELAER COUNTY DEPUTY SHERIFFS JOHN DOE AND RICHARD ROE, INDIVIDUALLY AND AS AGENTS, SERVANTSAND/OR EMPLOYEES OF THE COUNTY OF RENSSELAER; CITY OF TROY; TROY POLICE OFFICERS MOE DOE AND JOE DOE, DEFENDANTS.



The opinion of the court was delivered by: Gary L. Sharpe District Court Judge

MEMORANDUM-DECISION AND ORDER

I. Introduction

Plaintiffs Colleen McKim and Larry Aaron commenced this action pursuant to 42 U.S.C. § 1983 against the County of Rensselaer, Rensselaer County Sheriff Jack Mahar, Rensselaer County Deputy Sheriffs "John Doe" and "Richard Roe," the City of Troy, and Troy Police Officers "Moe Doe" and "Joe Doe," alleging federal and state law claims for false arrest and imprisonment, unlawful search and seizure, excessive force, and a state law claim for common law trespass. (See Compl., Dkt. No. 1:2.) Pending are defendants' motions for summary judgment, (Dkt. Nos. 31, 33), and plaintiffs' cross-motion to amend their complaint to identify the "Doe" defendants, (Dkt. No. 39). For the reasons that follow, defendants' motions are granted, and plaintiffs' cross-motion is denied as moot.

II. Background

On July 3, 2008, at approximately 6:00 a.m., members of the Rensselaer County Sheriff's Department, Troy Police Department, and other law enforcement agencies executed a "no-knock" search warrant for the seizure of crack cocaine at plaintiffs' first floor apartment at 17 101st Street in Troy, New York.*fn1 (See County Defs. SMF ¶¶ 50-53, 63, Dkt. No. 33:1.) In entering the premises, the officers used a battering ram to force open the front door, causing damage to the door and the door locks. (See Pls. Counter SMF ¶ 39, Dkt. No. 39:7; Pls. Resp. SMF ¶ 66, Dkt. No. 39:8; County Defs. Mem. of Law at 13, Dkt. No. 44.) Upon entry, the officers yelled "search warrant," entered plaintiffs' bedroom with guns drawn, and told plaintiffs to get on the floor. (See County Defs. SMF ¶ 5, Dkt. No. 33:1; Pls. Counter SMF ¶ 41, Dkt. No. 39:7.) At the time the officers entered the bedroom, plaintiff McKim "was wearing only a bathrobe which was not tied in the front," and plaintiff Aaron was naked. (Pls. Counter SMF ¶ 40, 45, Dkt. No. 39:7.) Both plaintiffs were handcuffed behind their backs while the officers searched for evidence relative to the search warrant. (See id. at ¶43.) During the search, McKim remained in the untied bathrobe, and Aaron remained naked "until, at some point, the officers allowed him to put underwear on." (Id. at ¶¶ 44, 45.)

Shortly after the search began, McKim was taken into the bathroom by a female officer and asked where drugs were located in the residence. (See County Defs. SMF ¶¶ 57-58, Dkt. No. 33:1.) McKim told the officer where marijuana could be found in the apartment, and also that a shotgun was kept in the bedroom closet. (See id. at ¶¶ 59-60.) The contents of plaintiffs' bedroom closet where the shotgun was kept were emptied on the bedroom floor. (See id. at ¶¶ 61-62.) According to plaintiffs, during the emptying of their closet, "photographs were stepped on and [Aaron's] dvd collection was searched." (Pls. Resp. SMF ¶ 64, Dkt. No. 39:8.) Ultimately, both the shotgun and marijuana were found and confiscated.(See County Defs. SMF ¶ 62, Dkt. No. 33:1.) At the conclusion of the search, which lasted approximately one hour and forty-five minutes, "Aaron was given an appearance ticket for violating ... New York State Penal Law § 221.05 -- Unlawful Possession of Marijuana."*fn2 (Id. at ¶¶ 63, 68.)No cocaine was found in plaintiffs' residence. (See id. at ¶ 71.)

The investigation leading up to the search of plaintiffs' residence apparently began on June 23, 2008, when a confidential informant (CI) contacted Michael Riley, an Investigator with the Rensselaer County Drug/Gang Task Force in the City of Troy. (See id. at ¶ 12.) The CI, who had successfully performed four previous controlled buys for the Rensselaer County District Attorney, told investigator Riley that he could purchase crack cocaine from a specified individual in the City of Troy. (See id. at ¶¶ 13, 14.) Investigator Riley and members of the City of Troy Special Operations Section met with the CI to discuss details as to how he could make the purchase. (See id. at ¶ 17.) That same day, Investigator Riley set up a controlled buy with the CI. (See id. at ¶ 18.) At that time, the CI was checked for contraband, and Investigator Riley provided the CI with a transmitter and provider currency to effect the purchase. (See id. at ¶19.) Ultimately, the CI successfully purchased crack cocaine and returned to an agreed upon location. (See id. at ¶ 21.)

On June 25, the CI again telephoned Investigator Riley, informing him that he had been taken to a "stash house" in the City of Troy. (See id. at ¶ 23.) According to defendants, the CI told Investigator Riley that "there were a total of four locations in the City of Troy which were maintained by two drug dealers known to the CI and involved in illegal drug activities." (See id. at ¶ 24.) In a written statement provided that same day, the CI identified one of the drug dealers as "Stink" and described one of Stink's residences as an apartment on 6th and Glenn Avenue in Troy, New York. (See Pls. Counter SMF ¶ 8, Dkt. No. 39:7.) The CI further described the apartment as being on "the [first] floor of a white house," but stated that he would "have to show [the investigators] the house because [he was] not sure of the number." (Frament Aff., Ex. E, June 25, 2008 CI Statement at 3, Dkt. No. 39:5.)

After the CI had given his statement, Investigator Riley had the CI bring him to the four addresses identified to verify the location of each. (See County Defs. SMF ¶ 27, Dkt. No. 33:1; Pls. Resp. SMF ¶ 27, Dkt. No. 39:8.) Defendants contend that "[u]pon arriving to the area of 6th and Glenn, the CI advised Riley that he was mistaken about the cross-streets of the residence"; "directed Investigator Riley to continue driving for approximately one block"; and "then identified 17 101st Street as the correct residence." (County Defs. SMF ¶¶ 28-30, Dkt. No. 33:1.) Although a statement of these events was recorded in a "Follow-Up Report" made later that day, (see Riley Aff., Ex. B, Follow-Up Report, Dkt. No. 33:4), and the CI later corroborated their occurrence in a second voluntary statement given on July 1, 2008, (see Riley Aff., Ex. C, July 1, 2008 CI Statement, Dkt. No. 33:4), plaintiffs, without any citation to the record, deny that these events occurred, (see Pls. Resp. SMF ¶¶ 28-30, Dkt. No. 39:8 (denying defendants's assertions as "inadmissible hearsay and not ... facts")).

In addition to the June 25 identification of plaintiffs' residence, defendants further contend that "[w]ithin the next 3-5 days, Investigator Riley, together with his supervisor Investigator [Arthur] Hyde, again had the CI take him to the locations identified." (County Defs. SMF ¶¶ 7, 33, Dkt. No. 33:1.) During the trip, defendants claim, "the CI provided information to Investigators Riley and Hyde as to the activities occurring in each residence"; "again identified 17 101st Street as a residence that he had been to on at least two occasions in the past two weeks and witnessed illegal drugs being sold"; and that "a drug dealer by the street name of "Stink" resided in the first floor apartment [at that address] and sold drugs out of the residence." (See id. at ¶¶ 34-36.) In response to these factual assertions, plaintiffs again baldly deny them as "inadmissible hearsay and not ... fact[s]." (Pls. Resp. SMF ¶¶ 34-36, Dkt. No. 39:8)On June 27, based on the CI's representations, Investigator Riley applied for the search warrant that ultimately supported the July 3 search. (See id. at ¶ 39.) In total, Investigator Riley's application sought the "no-knock" entry and search of the four residences allegedly identified by the CI, including plaintiffs' residence. (See id. at 39-40.) In the application, Investigator Riley stated that on June 25, 2008, the CI gave him "detailed information regarding illegal drug dealings of persons known to the CI as 'Stink,' 'Sport,' and 'Chuck,'" including that "'Stink' has custody and control over three different addresses in the City of Troy ..., where [he] sells crack cocaine and marijuana." (Frament Aff., Ex. B, Warrant Appl. at 2, Dkt. No. 39:2.) The application lists one of the three addresses as "Seventeen 101stStreet 1st Floor Apartment." (Id.) With respect to that address, Investigator Riley stated in the application that the CI told him that Stink currently resided there with his girlfriend; "described the address as a large white house next to a blue house near Sixth Avenue"; and "stated ... that he had been inside of the Seventeen 101stStreet 1st Floor Apartment with 'Stink' on two separate occasions within the past two weeks and on both occasions, 'Stink' made crack cocaine sales from the apartment." (Id. at 3.) Investigator Riley further stated in the application that he "drove the CI to the address," and that "[t]he CI identified the address given as the correct address." (Id.) In addition, Investigator Riley averred that "the CI has given information in the past that has proven to be both accurate and reliable and which has led to five previous drug purchases and two search warrants, which resulted in the seizure of illegal drugs and contraband." (Id. at 2.) And finally, Investigator Riley requested in the application that the "search warrant authorize the executing Police Officers to enter the premises to be searched without notice ... on the grounds that there is reasonable cause to believe that: (1) The property sought may be easily and quickly destroyed or disposed of, [and] (2) The giving of such notice may endanger the life or safety of the executing Police Officers or another person." (Id. at 4.) The basis given for this belief was as follows:

Your deponent can state from personal experience that it is common practice of persons who are involved in the illicit use and trafficking of controlled substances to attempt to remove, destroy, or dispose of said controlled substances if notice or authority is given prior to the execution of said warrant. Also, your deponent can state from personal experience, that by giving prior notice of executing said warrant, the suspects will have time to prepare themselves, and said residence, from the officers making a forced entry, which may endanger the lives and safety of the officers and persons inside said residence. (Id.) Ultimately, finding that probable cause supported the warrant application, Judge Matthew Turner of the City of Troy Criminal Court issued the warrants sought, permitting the unannounced entry and search of the listed premises. (See id.; County Defs. SMF ¶ 46, Dkt. No. 33:1.) About a week later, on July 3, the warrants were executed. (See County Defs. SMF ¶ 48, Dkt. No. 33:1.)

A couple weeks later, on July 14, John F. Tedesco, then Assistant Chief of the Troy Police Department, authored a memorandum to the then Chief of the Troy Police Department, relating to the execution of the four search warrants. (See Frament Aff., Ex. A, Tedesco Mem., Dkt. No. 39: 12 (filed under seal).)In the memo, Tedesco was critical of the supervisory oversight and investigative efforts surrounding the incident. (See id.) Tedesco concluded that:

Supervisory members of the Rensselaer County Drug Force failed to provide sufficient oversight of this investigation. The lack of corroboration of the CI's assertions reflects shallow investigative efforts. The points in the Analysis section of this report ... are not extraordinary efforts. Rather they reference basic investigative protocols that were ignored. (Id. at 3.) Similarly, in deposition, Tedesco testified that he "did not feel there was enough investigation to substantiate some of the things they were told by the [CI] .... Principally the amount of narcotics that they felt that they could secure." (Thomas Aff., Ex. H, Tedesco Dep. at 23:5-14, Dkt. No. 31:12.) Further, Tedesco opined that "they should have done more investigation using at least [surveillance and controlled buys]." (Id. at24.)

On May 4, 2009, plaintiffs commenced this action in New York State Supreme Court, Rensselaer County, against the County of Rensselaer, Rensselaer County Sheriff Jack Mahar, Rensselaer County Deputy Sheriffs "John Doe" and "Richard Roe," the City of Troy, and Troy Police Officers "Moe Doe" and "Joe Doe, alleging federal and state law claims for false arrest and imprisonment, unlawful search and seizure, and excessive force, and a state law claim for common law trespass. (See Compl., Dkt. No. 1:2.) On June 4, 2009, defendants removed the case to this court based on federal question jurisdiction. (See Notice of Removal, Dkt. No. 1:3.)

III. Standard of Review

The standard for the grant of summary judgment is well established and will not be repeated here. For a full discussion of the standard, the court refers the parties to its previous opinion in Bain v. Town ...


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