511 F.3d 239 (2nd Cir. 2007), 06-1272, Gilles v. Repicky

Docket Nº:Docket No. 06-1272-cv.
Citation:511 F.3d 239
Party Name:Marie GILLES, Plaintiff-Appellant, v. Guy. J. REPICKY, Defendant-Appellee.
Case Date:December 21, 2007
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 239

511 F.3d 239 (2nd Cir. 2007)

Marie GILLES, Plaintiff-Appellant,


Guy. J. REPICKY, Defendant-Appellee.

Docket No. 06-1272-cv.

United States Court of Appeals, Second Circuit.

Dec. 21, 2007

Argued: March 14, 2007.

Appeal from the February 16, 2006 judgment of the United States District Court for the Southern District of New York (Brieant, J.) granting motion for summary judgment and dismissing claim for damages for violation of appellant's Fourth Amendment right to be free from unreasonable search and seizure.

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[Copyrighted Material Omitted]

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Russell A. Schindler, Kingston, New York, for Plaintiff-Appellant.

Charlene M. Indelicato, Westchester County Attorney, for Stacey Dolgin-Kmetz, Chief Deputy County Attorney (Mary Lynn Nicolas, of counsel), White Plains, New York, for Defendant-Appellee.

Before: CALABRESI and WESLEY, Circuit Judges, and SESSIONS, District Judge. [*]


Plaintiff-appellant Marie J. Gilles brought suit under 42 U.S.C. § 1983 against defendant-appellee Guy J. Repicky seeking damages for violation of her Fourth Amendment right to be free from unreasonable search and seizure. She appeals from a February 16, 2006 judgment of the district court (Brieant, J.) granting Repicky's motion for summary judgment and dismissing her claim. For the reasons stated below, we vacate the decision and remand to the district court for further proceedings consistent with this opinion.


On August 11, 2004 at approximately 8:30 a.m. Marie Gilles, a fifty-year old United States citizen of Haitian descent, was traveling southbound through Westchester County on the Taconic State Parkway. She was driving a 1994 white Dodge cargo van, owned by her brother. She was transporting approximately ten packed fifty-five gallon cardboard barrels to a shipping facility in Mount Vernon, New York. Gilles owned the Adonai Community Store, a grocery store, in Poughkeepsie, New York. As part of her business she provided a shipping service for her customers to send supplies to relatives overseas. Gilles did not have personal knowledge of the contents of the barrels, but had the shipping invoices with her. According to the invoices, the barrels contained food and clothing to be shipped to destinations in Jamaica and Haiti.

On his way to work Detective Guy Repicky noticed Gilles' van, driving approximately 65 m.p.h. and apparently heavily laden. Repicky observed some barrels, partly covered by a blanket. He also noticed that the van slowed and moved abruptly into the right lane when passed by a marked police car.1

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Repicky has been employed with the Westchester County Department of Public Safety since October 1990, and has been a detective since 1997. In November 2003 he was assigned to the department's Counter-Terrorism Unit. As part of his responsibilities he was advised by the New York State Police Upstate New York Regional Intelligence Center of all terrorism alerts and activities relevant to Westchester County. In August 2004, as a result of the Republican National Convention which was scheduled to start on August 30, the Department had been put on alert for "vehicle-borne improvised explosive devices" (VBIEDs) which could possibly be used in the New York metropolitan area. Vans were specifically indicated as capable of carrying such devices. Repicky was aware of this alert.

Repicky called his dispatcher and requested that she run the van's license plate. His dispatcher informed him that the plate had been reported as stolen.2

Repicky requested state police assistance to stop the van, and was present when several New York State Police marked patrol cars stopped the van at approximately 8:45 a.m. Repicky approached the passenger side of the van, and a state trooper approached the driver's side of the van. Both officers approached the van with their guns drawn. Gilles testified that Repicky screamed at her, pointed his gun at her and threatened to shoot her if she moved. The state trooper ordered Gilles out of the van, and placed her in handcuffs. She was placed in the rear of the marked police car, with her hands cuffed behind her back.

Gilles and Repicky disagree about what happened next. Gilles asserts that she was asked for her driver's license and she responded that it was in her car. She kept asking "what did I do?" She told Repicky that the barrels contained food, clothing and school supplies. Repicky asserts that Gilles initially didn't answer his questions and that she was very upset and crying, that after about five to ten minutes she became "responsive," but repeatedly told Repicky that she did not know what was in the barrels.

After the van was pulled over, a bomb-sniffing dog was brought to the scene, but did not alert. Repicky then requested a narcotics dog. While the narcotics dog was at the scene, Repicky was informed that the reported stolen license plate was an error. The narcotics dog also did not alert.

Gilles and Repicky again disagree about what happened next. Repicky contends that after he learned about the stolen license plate error, he asked another officer on the scene to remove Gilles' handcuffs, approximately fifteen to twenty minutes after the initial stop. Gilles contends that she was held in handcuffs for more than one hour.

The officers searched the van and recovered Gilles' driver's license and the shipping invoices. They did not discover any explosive devices or materials that could be used to create such a device. Gilles maintains that she explained that her customers bought quantities of food and clothing items on sale in this country to send to their relatives in Jamaica and Haiti. Repicky claims that Gilles continued to disavow knowledge of the contents of the containers.

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According to Repicky, at approximately 10:00 a.m. he requested that Gilles accompany him to headquarters, but told her "I can't just let you go." Repicky testified that his motive for asking her to "come voluntarily" to headquarters was to enable her to use the bathroom to clean up because it was evident that she had begun to menstruate heavily. According to Gilles, Repicky ordered her to follow them back to headquarters. Gilles acknowledged that she had begun to bleed, but testified that Repicky never asked her to come to headquarters or gave her any reason other than that he...

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