115 F.3d 1098 (2nd Cir. 1997), 396, Simms v. Village of Albion, N.Y.

Docket Nº:396, Docket 95-9191.
Citation:115 F.3d 1098
Party Name:Eddie SIMMS, Edward L. Smith, Plaintiffs-Appellants, v. VILLAGE OF ALBION, NEW YORK; Joseph Sacco, Police Officer; Donald Hinman, Acting Police Chief, Defendants-Appellees.
Case Date:June 16, 1997
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 1098

115 F.3d 1098 (2nd Cir. 1997)

Eddie SIMMS, Edward L. Smith, Plaintiffs-Appellants,


VILLAGE OF ALBION, NEW YORK; Joseph Sacco, Police Officer;

Donald Hinman, Acting Police Chief, Defendants-Appellees.

No. 396, Docket 95-9191.

United States Court of Appeals, Second Circuit

June 16, 1997

Argued Nov. 21, 1996.

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Ronald Paul Hart, Ithaca, NY, for Appellant Eddie Simms.

Wilmer A. Rodriguez-Nunci, New York City, for Appellant Edward L. Smith.

Harry F. Mooney, Hurwitz & Fine, P.C. Buffalo, NY, for Appellee Village of Albion.

Robert M. Brennan, Christiano & Brennan, Rochester, NY, for Appellee Joseph Sacco.

Thomas A. DeSimon, Harris Beach & Wilcox, Rochester, NY, for Appellee Donald Hinman.

Before: CARDAMONE and CALABRESI, Circuit Judges, and POOLER [*], District Judge.

POOLER, District Judge.

Plaintiffs-Appellants Eddie Simms and Edward L. Smith appeal from final judgments entered in the United States District Court for the Western District of New York, Larimer, J., following a jury trial of consolidated actions. Judge Larimer dismissed (1) plaintiffs' claims under 42 U.S.C. §§ 1981, 1983, 1985(3), and 1988, which included claims for unlawful search and seizure, racial discrimination, false arrest and imprisonment, malicious prosecution, abuse of process, and excessive use of force, and (2) Simms' pendent state-law claims. The district court entered judgments in favor of defendants Donald Hinman, the Village of Albion ("Village"), and Joseph Sacco at different stages in the proceedings. 1 On appeal, appellants contend that the district court improperly entered judgment as a matter of law for defendants Hinman and the Village at the close of plaintiffs' case and judgment on a special verdict for defendant Sacco after the jury answered only five of six special verdict questions. Appellants argue that the court should have granted them partial summary judgment or retrial on their Fourth Amendment claims. Appellants contend finally that the trial court erred in its special verdict questions and instructions to the jury with respect to the Fourth Amendment claim. For the reasons below, we affirm the judgments of the district court.


  1. The Events

    The present action arose out of the arrests of Simms and Smith on September 12, 1992,

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    in Albion, New York. Also arrested were Cordell Cooper and Timothy King, who are not parties to this appeal. The arrests were the culmination of a Village of Albion police investigation into suspected drug activity taking place at the Dollinger Motel ("Motel") during the months of August and September 1992. The investigation began on August 26, 1992. On that day, an unrelated occurrence set in motion a series of events that ultimately led to this appeal. At approximately 2:49 p.m., a bank robbery took place at a Fleet Bank located on Main Street in the Village of Albion. A police radio broadcast described the suspect as a black male in his mid to late thirties, five feet seven inches to five feet eight inches tall, with a thin build, weighing approximately 150 pounds, and with scruffy hair on his chin and cheeks.

    The Albion Police Department dispatched Investigator Joseph Sacco to assist in the investigation of the bank robbery. While patrolling in his police car, Sacco spotted plaintiff-appellant Eddie Simms talking on a public telephone near the bank and approached him. Simms is a black male, who then was five feet eight inches tall and weighed about 165 pounds. Sacco noticed a bulge in Simms' pocket, patted him down, and pulled out a key and key ring to room 8 of the Motel, which was less than 200 yards from the telephone booth. Sacco asked Simms to accompany him to the Motel. Although Simms now contends that he did not do so voluntarily, it is undisputed that Simms and Sacco traveled from the telephone booth to room 8 of the Motel in the patrol car. Simms remained in the car while Sacco went to the door of room 8. Cordell Cooper, the occupant of the room, opened the door and allowed Sacco to enter the room. Once inside, Sacco saw a bag containing what appeared to be marijuana lying in plain view. Cooper denied the bag was his, and Sacco seized it.

    Police subsequently displayed Cooper and Simms in a show-up identification to bank employees, who failed to identify them as the robbers. Both men were released and immediately left the Village of Albion to return to their homes in Rochester.

    On August 28, 1992, Sacco tested the substance he had seized in room 8 and found it to be marijuana. Sacco testified that he did not perform the test sooner because he was involved in the bank robbery investigation. Sacco prepared an information accusing Simms and Cooper of unlawful possession of marijuana in violation of N.Y. Penal L. § 221.05. Sacco also prepared arrest warrants for Simms and Cooper. Albion Village Justice William Larimer (no relation to the district court judge in this case) signed the arrest warrants on August 28, 1992. Sacco placed the warrants in a police file because he had information that Simms and Cooper had left town.

    Between August 28, 1992, and September 10, 1992, Sacco learned from two confidential informants that Simms, Cooper, and others were selling drugs from room 20 of the Motel. Sacco arranged for a controlled drug buy at room 20 during the evening of September 10, 1992. Immediately after the controlled buy, Sacco drafted and signed a proposed search warrant and supporting affidavit and submitted them to Albion Village Justice Dennis Stirk. In his affidavit, Sacco stated that he had used an informant to conduct a "controlled buy" of cocaine from Cordell D. Cooper, AKA "Cory Stanly." Cory Stanly was the name listed on the motel register as the renter of the Motel room 20. Justice Stirk signed the search warrants, authorizing police to conduct the search of motel room 20 at any time of the day or night and to enter the premises to be searched without giving notice of their authority or purpose.

    Sacco assembled a group of Albion Village Police officers, including defendant Donald E. Hinman, then acting Chief of Police of the Village of Albion, and Orleans County Sheriff Deputies to attempt to execute the search warrant. Because Sacco expected both Simms and Cooper to be present in room 20, he took the arrest warrants for Simms and Cooper as well as the search warrant to room 20. The officers obtained a key to room 20 from Joyce Dollinger, the owner of the Motel, and used the key to enter the room. The officers found no one in the room when they entered. A factual dispute exists about what

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    the officers did while they were in the room. Sacco maintains that he simply looked around to see if anyone was there and then left without searching for drugs. Appellants contend that the officers spent several minutes looking through dresser drawers, wastebaskets, and so on, but found nothing. One witness, former Orleans County Deputy Sheriff Carl Phillips, testified at trial that Sacco searched under the beds and in desk drawers and garbage cans.

    After withdrawing from the room, Sacco and the others left the area. Sacco conducted a surveillance of room 20 from approximately 4:00 p.m. to 11:00 p.m. on September 11, 1992, but saw no one enter or leave the room. Sacco learned from Joyce Dollinger that the occupants of the room had paid for the room until September 12 at 11:00 a.m.

    Shortly after 10:00 a.m. on the morning of September 12, 1992, Sacco returned to the room along with several other officers. Sacco brought the arrest warrants for Cooper and Simms and the same search warrant that he had obtained on September 10, 1992. The officers again obtained a key to room 20 from Joyce Dollinger and used the key to enter the room. However, on this occasion the officers broke through a chain lock that was attached to the inside of the door. Both Simms and Cooper were inside the room, along with Smith and another man. Each of the four officers who entered the room secured one of the four occupants. Sacco secured Simms, who was lying on the bed farthest from the door.

    When Sacco ordered Simms from the bed, Sacco observed a Coca-Cola can under Simms' left thigh and money in Simms' shorts. Sacco took the can and noted that the can "appeared strange." Supplemental Appendix on Appeal at R-105 p 17. He discovered that it was not an actual Coca-Cola can, but had a twist-off top. When he removed the top, Sacco found plastic baggies containing cocaine inside the can. Sacco observed other drug paraphernalia in plain view.

    Police placed all four occupants of the room under arrest and removed them from the room. After the suspects were removed, one of the officers noticed some white flakes on the floor of the room that appeared to have fallen from the ceiling tiles. The officers obtained a ladder and searched the space of several inches between the drop ceiling and the actual ceiling. When they looked into the ceiling space, the officers found another false Coca-Cola can with more cocaine inside, as well as a large amount of cash.

    A New York State grand jury subsequently indicted Simms and Smith for Criminal Possession of a Controlled Substance in the Third Degree, N.Y. Penal L. § 220.16. Smith pleaded guilty pursuant to a plea agreement, and Simms went to trial. During the criminal proceedings against Simms, Sacco and the other involved officers notified Assistant District Attorney Shirley Gorman of the police officers' entry into room 20 on September 10 pursuant to the warrants. Gorman later stated in an affidavit that she believed that the September 10 entry created a "fatal defect in the execution" of the search warrant on September 12, 1992...

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