United States District Court, N.D. New York
THE PLAINTIFF: Law Offices of Elmer Robert Keach, III, ELMER
R. KEACH, III, ESQ., MARIA K. DYSON, ESQ.
THE DEFENDANTS: Friedman, Hirschen Law Firm, CAROLYN B.
MEMORANDUM-DECISION AND ORDER
L. SHARPE SENIOR DISTRICT JUDGE.
Sherry Montgomery commenced this action pursuant to 42 U.S.C.
§ 1983, alleging violations of the First and Fourth
Amendments and municipal liability against defendant Town of
Colonie and certain of its police officers: defendants Steven
H. Heider, Jennifer Oliver, Daniel Belles, and Jacques
Tremblay. (See generally Am. Compl., Dkt.
No. 50.) Pending is defendants' motion for summary
judgment. (Dkt. No. 31.) For the reasons that follow,
defendants' motion is granted in part and denied in part.
10, 2013, at about 12:51 A.M., Tremblay and another Town of
Colonie police officer drove, in a marked police car, into
the parking lot of the Super 8 motel located at 1579 Central
Avenue, Albany, New York. (Defs.' Statement of Material
Facts (SMF) ¶ 1, Dkt. No. 32.) As a known location for
illegal activity, including drug trafficking and
prostitution, the motel is routinely patrolled by Colonie
police. (Id. ¶ 2.) In the parking lot was a car
“backed up to the door of a motel unit.”
(Id. ¶ 3.) Montgomerywas driving the car,
which Ronald Montgomery and Tracy Noble were passengers.
(Id. ¶¶ 3, 5.) The motel room was rented
by another companion, Dorothy Cole, who “was walking
towards the [car] but quickly turned away when the police
vehicle entered the lot.” (Id. ¶¶
identification check by the Colonie police dispatch showed
that Montgomery's driver's license was suspended,
Ronald Montgomery was on parole, and Noble was the subject of
an open warrant. (Id. ¶ 6.) Two additional
Colonie police officers “heard the call-out on the
police radio that officers were ‘checking a
suspect'” and stopped to offer assistance.
(Id. ¶ 7.) Noble was taken to the police
station for booking on the warrant and later “submitted
to a strip search by a female police officer at the Colonie
police lockup[.]” (Id. ¶¶ 8-9.)
computer was in plain view in the backseat of the car, and a
consensual search of the car “turned up a . . . scale
containing . . . residue on the front console and a pair of
used surgical-type rubber gloves on the floor of the
passenger seat, [and a] television set in the
trunk.” (Id. ¶¶ 10-11.) No one
admitted ownership of the scale. (Id. ¶ 12.) At
about 1:37 A.M., Belles “heard the call-out on the
police radio that several of his officers were at the . . .
[m]otel” and arrived there about 2:00 A.M.
(Id. ¶ 13.) Officers searched Cole's motel
room and found a checkbook belonging to a woman in Albany.
(Id. ¶ 14.) Colonie police asked Albany City
police to investigate a possible burglary at that woman's
apartment, and Cole and Noble were later arrested by Albany
City police and charged with burglary. (Id.
alleges that she is a practicing Muslim and her religious
beliefs preclude her from being touched by a male who is not
her partner. (Pl.'s SMF ¶ 1, Dkt. No. 43 at 8.) She
also alleges that she was “pat-frisked by a male police
officer who may have been . . . Tremblay, ”
(id. ¶ 2), despite her objection to the
pat-frisk and her request to be pat-frisked by a female
officer, (id. ¶ 4). According to Montgomery,
the pat-frisk did not yield any weapons or contraband.
(Id. ¶ 8.)
the pat-frisk, Belles decided to ask Montgomery to undergo a
strip search and visual body cavity inspection, and he called
in a female officer, Oliver, for that purpose. (Defs.'
SMF ¶ 17.) Belles directed an officer to speak with
Tremblay and Montgomery about consenting to a strip search.
(Dkt. No. 43 at 4; Dkt. No. 49 at 1.) The parties disagree as
to whether Montgomery consented. (Defs.' SMF ¶ 31;
Pl.'s SMF ¶¶ 21, 23, 25, 27-28, 31.) The
parties also disagree as to the Colonie police
department's training (or lack thereof) regarding strip
searches in the field. (Pl.'s SMF ¶ 49; Dkt. No. 49,
Attach. 1, at 11.)
conducted a strip search and visual body cavity inspection of
Montgomery in the bathroom of the motel room. (Defs.'
SMF ¶ 19.) Oliver explained the strip search and visual
body cavity inspection procedure to Montgomery before it
began. (Id. ¶ 22.) Montgomery removed her
clothes one item at a time and handed them to Oliver for
inspection, and Oliver did not touch Montgomery's body
during the search. (Id. ¶¶ 20, 23.)
Montgomery alleges that she “was required to . . .
manipulate her genitals and breasts for a visual inspection
by . . . Oliver” and “to place her unclothed
buttocks on the ledge of the tub and open her legs so that .
. . Oliver could look inside her vagina.” (Pl.'s
SMF ¶¶ 44-45.) Montgomery also alleges that the
bathroom was “filthy” and a male officer
“was present right outside the door of the
bathroom.” (Id. ¶¶ 42, 46.) Cole
also underwent a strip search in the bathroom. (Defs.'
SMF ¶ 24.)
the investigation was completed, ” Montgomery was
issued a traffic citation for the misdemeanor charge of
aggravated unlicensed operation of a motor vehicle in the
third degree. (Id. ¶ 32.) Colonie police
also made an unrelated drug arrest in the motel parking lot
“as this incident was ending.” (Id.
filed the instant action in September 2014; she amended her
complaint in June 2016. (Compl., Dkt. No. 1; Am. Compl.)
Montgomery asserts the following claims under 42 U.S.C.
§ 1983: (1) Tremblay, Belles, and Oliver, “by
preventing [Montgomery] from leaving the motel for a
substantial period of time, in the absence of any reasonable
suspicion or probable cause that she had committed a crime[,
] . . . violated [her] Fourth Amendment [r]ights, ”
(Am. Compl. ¶ 26); (2) Tremblay, Belles, and Oliver
violated the Fourth Amendment by strip searching Montgomery,
(id. ¶¶ 31-36); (3) Tremblay violated the
First Amendment by pat-frisking Montgomery despite her
objection and request to have a female officer conduct the
search, (id. ¶¶ 38-42); and (4) the Town
of Colonie and Heider are liable under a theory of municipal
liability, (id. ¶¶ 44-49).
is defendants' motion for summary judgment. (Dkt. No.
Standard of Review
standard of review pursuant to Fed.R.Civ.P. 56 is well
established and will not be repeated here. For a full
discussion of the standard, the court refers the parties to
its decision in Wagner v. Swarts, 827 F.Supp.2d 85,
92 (N.D.N.Y. 2011), aff'd sub nom. Wagner v.
Sprague, 489 Fed.Appx. 500 (2d Cir. 2012).