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Cook v. Dwyer

United States District Court, N.D. New York

March 30, 2018

TRAVIS L. COOK, SR., Plaintiff,
v.
JOHN DWYER, City of Albany Police Officer, both individually and/or as an agent, servant, and/or employee of the City of Albany; GREGORY MULLIGAN, City of Albany Police Officer, both individually and/or as an agent, servant, and/or employee of the City of Albany; JOHN REGAN, City of Albany Police Officer, both individually and/or as an agent, servant, and/or employee of the City of Albany; and TYSON RUECKER, City of Albany Police Officer, both individually and/or as an agent, servant, and/or employee of the City of Albany, Defendants.

          THE KINDLON LAW FIRM, PLLC, LEE CAREY KINDLON, ESQ., GENNARO D. CALABRESE, ESQ., Attorneys for Plaintiff.

          THE REHFUSS LAW FIRM P.C., ABIGAIL W. REHFUSS, ESQ., STEPHEN J. REHFUSS, ESQ., Attorneys for Defendants.

          MEMORANDUM-DECISION AND ORDER

          FREDERICK S. SCULLIN JR. SENIOR UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         On June 24, 2016, Plaintiff commenced this action under 42 U.S.C. § 1983 against Defendants, all of whom are City of Albany Police Officers. See Dkt. No. 1 ("Complaint"). In his complaint, Plaintiff asserted three causes of action: (1) false arrest, (2) false imprisonment, and (3)malicious prosecution, all of which arose from events that occurred in 2014. See id.

         Pending before the Court is Defendants' motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Dkt. No. 36.

         II. BACKGROUND

         On August 1, 2014, Defendants, members of the City of Albany Police Department's Community Response Unit ("CRU"), arrested an individual ("CS"), who told the arresting officers that "he wanted to help himself out by offering up information on his heroin dealer, the Plaintiff, by setting up a buy." See Dkt. No. 36-1 ("Defendants' Statement of Facts") at ¶¶ 1-4 (citing [Dkt. No. 36-5 ("Grand Jury Tr. A")[1] at] 8:11-25, 9:1-8).[2]

         In the presence of Defendants Mulligan and Dwyer, the CS "placed a recorded phone call and exchanged several text messages with phone number 518-650-4080 setting up a buy for 50 grams of heroin for $3, 500" at a specified time and location. See Defendants' Statement of Facts at ¶¶ 5, 7 (citing [Grand Jury Tr. A at] 9:1-8, 9:12-14, 9:17-20, 9:21-10:6). Defendants Mulligan and Dwyer listened to the phone call and read the text message exchange. See Id. at ¶ 6 (citing [Dkt. No. 36-6 ("Suppression Hearing Tr.") at] 6:4-7:2).

         After the CS finished setting up the buy, Defendants Mulligan and Dwyer drove him to the specified location, an apartment building, to commence surveillance from an unmarked vehicle. See Id. at ¶ 8 (citing [Grand Jury Tr. A at] 10:6-15). Defendants planned "to perform a RIP operation, " in which "officers intercept the drug dealer before he has any contact with the [CS]." See Id. at ¶ 9 (citing [Grand Jury Tr. A at] 17:10-13, 34:8-11; [Suppression Hearing Tr. at] 5:13-17).

         Just before arriving at the apartment building, a caller at the aforementioned number telephoned the CS and "told him that he was arriving and that he was going to send his white girl up to the residence with the drugs." See Id. at ¶ 11 (citing [Grand Jury Tr. A at] 10:16-23). The CS placed the call on speakerphone so that Defendants Mulligan and Dwyer could also listen to the conversation and confirm that the caller was a male. See Id. at ¶¶ 12-13 (citing [Grand Jury Tr. A at] 10:16-11:7; [Suppression Hearing Tr. at] 8:7-19). They also visually confirmed that the call came from the same number that the CS had contacted while at the police station, 518-650-4080. See Id. at ¶ 13 (citing [Suppression Hearing Tr. at] 8:7-19).

         Shortly after the telephone call, Defendants observed a vehicle arrive outside the apartment building. See Id. at ¶ 14 (citing [Grand Jury Tr. A at] 10:1-19; 34:23-35:4). The CS confirmed to Defendant, "'that's the car.'" See Id. at ¶ 15 (quoting [Suppression Hearing Tr. at] 9:1-9). Inside the vehicle was a white female, two adult males, one of whom was Plaintiff, and a small child. See Id. at ¶ 14 (citation omitted); Dkt. No. 38-2 ("Plaintiff's Memorandum") at 4 (citing [Dkt. No. 38-3 ("Grand Jury Tr. B")] at 25[:13-18]; [Dkt. No. 38-5 ("Plaintiff's Deposition Tr.")] at 18[:13-16]). Ms. Holland McKay, "the white female" was driving the car, Mr. Artce Kennedy was sitting in the front passenger seat, and Plaintiff and his young son were sitting in the back seat. See Defendants' Statement of Facts at ¶¶ 18-19 (citing [Grand Jury Tr. A at] 12:5-11, 12:22-25; [Dkt. No. 36-7 ("Brucato Deposition Tr.")] at 18:20-24]). Plaintiff claims that, earlier in the evening, Ms. McKay and Mr. Kennedy had agreed to drive him and his son home but had informed him that "they had to make a stop on the way." See Plaintiff's Memorandum at 4 (citing [Grand Jury Tr. B] at 25[:10-13]; [Plaintiff's Deposition Tr.] at 15[:15]-16[:3]).

         After arriving at the location, Ms. McKay exited the vehicle and began to enter the apartment building where the CS had arranged to purchase the drugs. See Defendants' Statement of Facts at ¶ 16 (citing [Grand Jury Tr. A at] 11:11-13, 11:20-22]). Plaintiff claims that, while Ms. McKay was entering the building, Mr. Kennedy was speaking to someone on his cell phone. See Plaintiff's Memorandum at 4 (citing [Grand Jury Tr. B] at 25[:20-21]). As Defendant Mulligan observed Ms. McKay about to enter the apartment building, he relayed the information to "take down units" in the area, who subsequently followed her into the building. See Defendants' Statement of Facts at ¶ 17 (citing [Grand Jury Tr. A at] 11:23-12:4). Officers subsequently arrested Ms. McKay after searching her and finding 62 grams of heroin and approximately 5 grams of cocaine on her person. See Id. at ¶ 18 (citing [Suppression Hearing Tr. at] 9:13-23; [Grand Jury Tr. A at] 12:22-13:17; [Dkt. No. 36-8 ("Defendants' Ex. F: McKay Police Report") at 3-4]).

         At the same time that the take down units were approaching Ms. McKay, additional officers approached Plaintiff and Mr. Kennedy, who were still sitting in the vehicle. See Id. at ¶ 17 (citing [Grand Jury Tr. A at] 11:23-12:4). Officers then searched and arrested both Plaintiff and Mr. Kennedy. See Id. at ¶¶ 17, 19-20 (citing [Grand Jury Tr. A at] 11:23-12:4, 12:5-11, 12:9-15, 35:5-7; [Brucato Deposition Tr. at] 13:7-12, 18:20-24). During the arrest and subsequent search, officers confiscated a "wallet, identification, money, and a cell phone" from Mr. Kennedy. See Defendants' Statement of Facts at ¶ 21 (citing [Grand Jury Tr. A at] 35:5-11). Officers also retrieved a cell phone from Plaintiff. See Id. (citing [Grand Jury Tr. A at] 12:9-15). Plaintiff admits that, after the officers took him to the police station, Defendant Ruecker made sure that both seized cell phones were on and operating properly. See Id. at ¶ 22 (citing [Grand Jury Tr. A at] 36:18-24, 38:18-39:7); Plaintiff's Statement of Facts at ¶ 22 (citing [Grand Jury Tr. B] at 28[:21]-29[:13]; [Plaintiff's Deposition Tr.] at [33:20-22, ] 24[:17-22]). Plaintiff also acknowledges that Defendant Ruecker called the previously-mentioned number associated with the drug buy, 518-650-4080, from his office phone. See Plaintiff's Statement of Facts at ¶ 22 (citations omitted). However, the parties disagree about whether the phone that rang when Defendant Ruecker called that number was the phone that the officers had seized from Plaintiff. See Defendants' Statement of Facts at ¶ 22 (citations omitted); Plaintiff's Statement of Facts at ¶ 22 (citations omitted). Plaintiff claims that his cell phone had a number that began with a "434" area code, not a "518" area code; and, therefore, his phone was not the phone that rang when Defendant Ruecker placed a call to the number associated with the drug buy. See Plaintiff's Statement of Facts at ¶ 33 (citing [Grand Jury Tr. B] at 29[:1-13], 32[:5-12]). Nevertheless, Defendants charged Plaintiff with "Criminal Sale of a Narcotic Drug." See Defendants' Statement of Facts at ¶ 23 (citing [Defendants' Ex. E: Cook Police Report at 1]). After Defendants generated "pedigree information and a field contact card for" Mr. Kennedy, they released him. See Defendants' Statement of Facts at ¶ 24 (citing [Grand Jury Tr. A at] 35:17-21; [Dkt. No. 36-8 ("Defendants' Ex. G: Kennedy Pedigree Information") at 5-6]).

         Albany County Assistant District Attorney ("ADA") Joseph Brucato prosecuted Plaintiff's criminal case. See Defendants' Statement of Facts at ¶ 25 (citing [Brucato Deposition Tr. at] 5:7-6:8). A grand jury indicted Plaintiff, and the presiding judge at Plaintiff's probable cause hearing found that there was probable cause for the charge against Plaintiff. See Id. at ¶¶ 26-27 (citing [Brucato Deposition Tr. at] 6:18-20, 25:2-12). ADA Brucato ultimately sought dismissal of the charges "against Plaintiff in the interest of justice" because he believed he did not have "enough evidence to prove the case beyond a reasonable doubt." See Defendants' Statement of Facts at ¶ 28 (citing [Brucato Deposition Tr. at] 11:10-12).[3]

         ADA Brucato based his decision to seek dismissal of the charge against Plaintiff on information he had received prior to trial. First, Plaintiff's counsel informed ADA Brucato that Plaintiff protested his innocence and "was willing to have the phone dumped, meaning release all the information to it." See Brucato Deposition Tr. at 10:15-19. Plaintiff's counsel also told ADA Brucato that he had "brought in a private DNA lab to have the phone swabbed, " which ADA Brucato found to be "highly irregular." See Id. at 10:20-22. Finally, after talking to Plaintiff's counsel, ADA Brucato located Mr. Kennedy, who at that time was in the Albany County jail for ...


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