Velardi v. Walsh
| Decision Date | 15 November 1994 |
| Docket Number | D,No. 376,376 |
| Parties | Mary VELARDI and Frances Velardi, Plaintiffs-Appellants, v. Cornelius R. WALSH, Jr. and Robert L. Boek, Defendants-Appellees. ocket 94-7212. United States Court of Appeals, Second Circuit |
| Court | U.S. Court of Appeals — Second Circuit |
Robert D. Wilcox, Troy, NY, for plaintiffs-appellants.
Victor Paladino, Asst. Atty. Gen., Albany, NY , for defendants-appellees.
Before: NEWMAN, Chief Judge, KEARSE and CARDAMONE, Circuit Judges.
This appeal concerns the qualified immunity defense of two state police officers who allegedly violated the plaintiffs' constitutional rights when procuring two search warrants and executing one of those warrants. The execution issue arises because of on-the-scene developments that prompted the officers to enter a house next to the one primarily identified in the search warrant. Plaintiffs Mary Velardi and Frances Velardi appeal from the January 20, 1994, judgment of the United States District Court for the Northern District of New York (Con. G. Cholakis, Judge) granting the summary judgment motion of defendants Cornelius R. Walsh and Robert L. Boek. Because we conclude that the defendants are entitled to qualified immunity, we affirm.
Two different searches are at issue: the search of a residence and the subsequent search of two safe-deposit boxes. The residence was occupied by plaintiff-appellant Frances Velardi and her husband Crispino Velardi. One of the boxes was leased to Frances and Crispino Velardi, and the other was leased to plaintiff-appellant Mary Velardi (Crispino's mother) and Salvatore Velardi (Crispino's brother). These searches grew out of ongoing narcotics investigations in the environs of Utica, New York. In May and June 1987, officers from the New York State Police, including defendants-appellees Walsh and Boek, assisted the Utica Police in investigating suspected cocaine dealing by Kevin Narbone. The investigation employed a confidential informant, Richard Clair.
In June the investigative team observed two transactions in which Clair purchased cocaine from Narbone, who in turn appeared to be supplied by an unidentified man driving a 1980 silver and grey Ford. The investigators learned that the Ford was registered in the name of Frances Velardi. Further inquiry disclosed that the local electrical utility company supplied electricity to a customer named Velardi residing on Route 49 near Utica; although no address was given, the residence was described as the front unit of a house supplied by a particular utility pole. By ascertaining the location of the particular pole, the Utica Police concluded that the Velardi apartment was in the fourth house west of Lewandrowski Road on Route 49.
In a further effort to identify Narbone's supplier, the investigative team then arranged another transaction involving the informant Clair. Officers in a helicopter observed the silver and grey Ford leave a driveway next to the previously identified residence on Route 49, drive to a point where officers on the ground observed the occupant sell a substance that was shortly thereafter identified as cocaine, and then return to the same driveway on Route 49. On the basis of affidavits from appellees Walsh and Boek summarizing the investigation, a local magistrate issued a "no-knock" warrant to search the previously identified residence on Route 49. The warrant identified the residence both by describing its location ("fourth house west of the Lewandrowski Road") and physical appearance ("a 2 1/2 story wood frame, white and blue with black shu[tt]ers"), and by characterizing it as "occupied by unknown white male last name Velardi."
Before executing this warrant, the officers happened to see the supplier whom they had previously observed, and they arrested him. He turned out to be Crispino Velardi. A search of Crispino disclosed three packets of cocaine. The officers then drove to the house described in the warrant, taking Crispino with them. A knock at the front door elicited no response. However, the occupants of the rear apartment of the house informed the officers that the Velardis lived in the house next door, i.e., in the third rather than the fourth house west of Lewandrowski Road. A car then drove into the driveway, and the occupants confirmed that the Velardis lived in the third house, in the front apartment. Both houses were served by the same driveway and the same utility pole. Acting on this new information, the officers surrounded the Velardis' actual house but were apparently uncertain whether their warrant authorized them to search it. Appellee Walsh knocked on the door and said that he was looking for "Chris." The person inside, later revealed to be Frances Velardi, told Walsh that "Chris" was "not around" and refused him entry.
There is some dispute about what happened next. The defendant officers allege that they heard a toilet flush several times, leading them to believe that evidence was being destroyed. The plaintiffs deny that the toilet flushed at all or could flush several times in succession. Apparently believing that exigent circumstances existed, the officers broke down the door and conducted an emergency sweep. Once inside, they immediately phoned the magistrate, who orally amended the warrant to correct its descriptive error. The officers then searched the residence.
The search turned up narcotics paraphernalia as well as keys to two safe-deposit boxes at different banks. Crispino and Frances Velardi were arrested but released on bail before the banks reopened the following Monday. Just after 9:00 a.m. on Monday, a local prosecutor learned that several members of the Velardi family, including Crispino, Frances, Mary, and Salvatore, had just accessed their safe-deposit boxes. Fearing that the Velardis were transferring contraband or evidence from Crispino's and Frances's safe-deposit box to Mary's and Salvatore's, Walsh obtained a search warrant for the two boxes at Norstar Bank. A search turned up $120,000 cash in the box leased to Mary and Salvatore.
Frances and Mary Velardi instituted this damages action pursuant to 42 U.S.C. Sec. 1983 (1988) against Walsh, Boek, and the prosecutor. The complaint alleged a number of constitutional violations by the defendants and also asserted several pendent state-law claims. In opposition to defendants' motion for summary judgment, however, the Velardis endeavored to support only their claims that the defendants acted unconstitutionally in procuring and executing the search warrants for the home and the safe-deposit boxes. Specifically, the Velardis maintained that the defendants deliberately or recklessly misled the magistrates who issued the warrants about material facts relevant to a finding of probable cause. Frances Velardi also maintained that the warrant for her residence was invalid because it failed to describe the premises with particularity, and that no exigent circumstances justified what she alleged became a warrantless search.
The District Court granted summary judgment for the prosecutor on the ground of absolute immunity and for defendants Walsh and Boek on the ground of qualified immunity, and dismissed the complaint. The Velardis seek review of the District Court's ruling as to Walsh and Boek.
As government officials performing discretionary functions, the defendants enjoy a qualified immunity that shields them from personal liability for damages under section 1983 "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known," Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982); Zavaro v. Coughlin, 970 F.2d 1148, 1153 (2d Cir.1992), or insofar as it was objectively reasonable for them to believe that their acts did not violate those rights, see Anderson v. Creighton, 483 U.S. 635, 638-39, 107 S.Ct. 3034, 3038-39, 97 L.Ed.2d 523 (1987); Oliveira v. Mayer, 23 F.3d 642, 648 (2d Cir.1994), petition for cert. filed, 63 U.S.L.W. 3268 (Sept. 14, 1994).
The Velardis allege that Walsh and Boek deliberately or recklessly misled the magistrates who issued the search warrants. "Where an officer knows, or has reason to know, that he has materially misled a magistrate on the basis for a finding of probable cause, ... the shield of qualified immunity is lost." Golino v. City of New Haven, 950 F.2d 864, 871 (2d Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 3032, 120 L.Ed.2d 902 (1992) (citations omitted). A section 1983 plaintiff challenging a warrant on this basis must make the same showing that is required at a suppression hearing under Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676-77, 57 L.Ed.2d 667 (1978): the plaintiff must show that the affiant knowingly and deliberately, or with a reckless disregard of the truth, made false statements or material omissions in his application for a warrant, and that such statements or omissions were necessary to the finding of probable cause. Golino, 950 F.2d at 870-71; see Franks, 438 U.S. at 171-72, 98 S.Ct. at 2684-85. Unsupported conclusory allegations of falsehood or material omission cannot support a Franks challenge; to mandate a hearing, the plaintiff must make specific allegations accompanied by an offer of proof. See Franks, 438 U.S. at 171, 98 S.Ct. at 2684. Moreover, when police officers move for summary judgment on the basis of qualified immunity, "[p]laintiffs may not unwrap a public officer's cloak of immunity from suit simply by alleging even meritorious factual disputes relating to probable cause, when those controversies are nevertheless not material to the ultimate resolution of the immunity issue." Cartier v. Lussier, 955 F.2d 841, 845 (2d Cir.1992). Disputed issues are not material...
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