Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Costello v. Milano

United States District Court, S.D. New York

May 6, 2014

PHILIP MILANO and LUIS SANCHEZ, in their individual capacities, Defendants

Page 407

[Copyrighted Material Omitted]

Page 408       

For Plaintiff: Michael Howard Joseph, Law Office of Michael H. Joseph, PLLC, White Plains, New York.

For Defendants: Steven Leon Banks, New York State Office of the Attorney General, New York, New York.

Page 409


Seibel, J.

Before the Court is Defendants' Motion for Summary Judgment. (Doc. 19.) For the following reasons, Defendants' Motion is granted.


In October 2009, Plaintiff was enrolled as an undergraduate student at the State University of New York campus in Purchase, New York (" SUNY Purchase" ). (P's 56.1 ¶ 1.)[1] Also in October 2009, Defendants Philip Milano and Luis Sanchez

Page 410

were employed by SUNY as police officers and assigned to the SUNY Purchase campus. ( Id. ¶ ¶ 2-3.)

Plaintiff claims that shortly after midnight on Saturday, October 10, 2009, he and a few other SUNY Purchase students stopped at his Toyota Camry to pick up Plaintiff's iPod while walking from the SUNY Purchase student center to Plaintiff's dormitory. (Banks Decl. Ex. D (" P's Dep." ), at 11-12.)[2] The Camry was parked in the SUNY Purchase Phase II parking lot, which was directly behind Plaintiff's dormitory. ( Id. at 14.) When they arrived at Plaintiff's car, Plaintiff and the other students entered it to get out of the rain. ( Id. at 12-13.)[3] Plaintiff claims that he and the other students sat in the car for about 20 seconds before Officer Milano, who was patrolling the SUNY Purchase campus with Officer Sanchez, (Milano Decl. ¶ 4),[4] tapped on the front passenger-side window, (P's Dep. 13, 20).

Officer Milano testified that he approached the Camry out of concern for the welfare of the individuals in the car, because he knew that SUNY Purchase students often held parties on Friday nights and that they and their guests sometimes fell asleep while intoxicated inside a vehicle. (Joseph Decl. Ex. 3 (" Milano Dep." ), at 16-17.)[5] While Officer Milano could not see what was happening in the Camry because it was dark and the car's windows were foggy, (P's 56.1 ¶ ¶ 6-7), he could see that there were five individuals in the Camry, (Milano Dep. at 18). Moreover, he testified that despite the Camry's foggy windows, he was able to see that the key was in the ignition before he knocked on the front passenger-side window. ( Id. at 20.) Plaintiff, however, testified that he put the key in the ignition after Officer Milano tapped on the window because Plaintiff's Camry has power windows which cannot function while the car is off. ( See P's Dep. 20-21.)

Officer Milano, who received basic drug detection training at the police academy, (Milano Dep. 8), testified that after the front passenger-side window was lowered, he smelled marijuana and alcohol, ( id. at 22). Officer Sanchez, who stood at the rear of the Camry, (P's 56.1 ¶ 26), testified that he also smelled marijuana coming from the vehicle and that he heard Officer Milano say that he smelled marijuana, (Joseph Decl. Ex. 2 (" Sanchez Dep." ), at 17-18). Officer Milano stated that, in addition to smelling marijuana, he saw a " rolled up cigar, which appeared to be a marijuana cigar," on the center console after the front passenger-side window was lowered. (Milano Dep. 22-23.) Plaintiff disputes that any marijuana was in plain view, (P's Dep. 17-18), or that either Defendant could have smelled marijuana because the car did not smell of marijuana and nobody had smoked marijuana in the car, ( id. at 17).

After the front passenger-side window was lowered, Officer Milano told Plaintiff to remove the key from the ignition and

Page 411

place it on the dashboard. (Milano Decl. ¶ 9.) Once Plaintiff removed the key from the ignition, Officer Milano directed him to exit the car. (P's 56.1 ¶ 16.) When Plaintiff exited the car, Officer Milano observed that Plaintiff had bloodshot, glassy eyes and his breath smelled like alcohol. ( Id. ¶ 18.) Officer Milano also observed that Plaintiff appeared to be lethargic and had difficulty following directions. ( Id. ¶ 19.) Because of these observations, Officer Milano believed Plaintiff was intoxicated. (Milano Dep. 27-28.) Officer Milano did not, however, administer a field sobriety test or breathalyzer while in the Phase II parking lot. ( See id.) Plaintiff admits that he had consumed four cans of beer between approximately 10:00 PM and 11:30 PM, (P's Dep. 15-16), and that this amount of alcohol was sufficient to intoxicate him, (P's Mem. 5).[6] Plaintiff did not, however, feel intoxicated. (P's Dep. 16.)

The parties dispute several facets of the subsequent events. Plaintiff testified that he exited the Camry and was then frisked, handcuffed and placed in the back of Defendants' patrol car. ( Id. at 22.) Officer Milano claims that after Plaintiff exited the car, he was frisked but not immediately handcuffed. (Milano Dep. 26-27.) Rather, Plaintiff stood towards the rear of the Camry with Officer Sanchez as Officer Milano directed the other occupants to exit the car and frisked them. ( See Milano Decl. ¶ 11.) Officer Milano did not find contraband on Plaintiff or any of the other individuals in the Camry. ( Id.) After all the students were frisked, Plaintiff, the other four occupants of the Camry and Officer Sanchez stood at the rear of the car while Officer Milano searched it. ( Id. ¶ ¶ 11-12; Milano Dep. 31.) Officer Milano claims that although nobody was free to leave, nobody was handcuffed while he searched the car. (Milano Dep. 27, 31.)

During his search of the Camry, Officer Milano inspected the cigar he claims was on the center console and found that it contained a green leafy substance that appeared to be marijuana. (Milano Aff. ¶ 12.) Underneath the driver's seat, Officer Milano found a small plastic glassine envelope, which also appeared to contain marijuana, and a glass pipe, which appeared to be stained with marijuana residue. (P's 56.1 ¶ 24.) Officer Milano found a second glass pipe, which appeared to be stained with marijuana residue, under the front passenger seat. ( Id.) Officer Milano claims he also found three Zig-Zag rolling paper containers and a New York learner's permit and driver's license containing Plaintiff's name and an altered date of birth. (Milano Aff. ¶ 12.) Plaintiff admits that Officer Milano found the cigar and that it contained marijuana, but claims it was not on the center console. (P's 56.1 ¶ 24.) Plaintiff also admits that the glassine envelope contained marijuana and that Officer Milano found all of the drug paraphernalia except the rolling paper containers. ( Id. ¶ ¶ 24-25.) Plaintiff disputes that Officer Milano found a forged driver's license or learner's permit. ( Id. ¶ 25.)

Officer Milano testified that after he completed his search of the Camry, he asked if the marijuana and drug paraphernalia belonged to any of the car's occupants, and that Plaintiff responded that the marijuana and drug paraphernalia were his. (Milano Dep. 26-27.) Plaintiff, however, claims he did not say the marijuana and drug paraphernalia belonged to him, (P's Dep. 19-20), and Officer Sanchez testified that he did not hear Plaintiff assert ownership of the marijuana,

Page 412

 (Sanchez Dep. 23-24). Officer Milano testified that he handcuffed Plaintiff only after Plaintiff asserted ownership of the marijuana. (Milano Dep. 33.)

It is undisputed that the Defendants, at some point, handcuffed Plaintiff, placed him in the back of the patrol car and drove him to the campus police station, and allowed the four other occupants of the Camry to leave. (P's 56.1 ¶ 29; Milano Dep. 33.) Defendants assert that at the time Plaintiff was taken to the campus police station, he was under arrest for unlawful possession of marijuana and detained on suspicion of driving while intoxicated. (P's 56.1 ¶ 30.) After arriving at the campus police station, Officer Milano escorted Plaintiff inside and Officer Sanchez left to resume his patrol. ( Id. ¶ 34.) Officer Milano then administered three standardized field sobriety tests, all of which Plaintiff failed. ( Id. ¶ ¶ 36-37.) Plaintiff also submitted to a breathalyzer test, which showed that he had a blood alcohol content (" BAC" ) of .08 percent. ( Id. ¶ 38.)

Based on the results of the field sobriety tests and the breathalyzer, Officer Milano signed a Simplified Information/Complaint charging Plaintiff with driving while intoxicated in violation of New York Vehicle & Traffic Law (" VTL" ) § § 1192(2) and (3). (Joseph Decl. Ex. 7.) Officer Milano also filed a Violation Information charging Plaintiff with unlawful possession of marijuana in violation of New York Penal Law § 221.05. ( Id. Ex. 9.). ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.