740 F.3d 817 (2nd Cir. 2014), 12-2220-CV, McColley v. County of Rensselaer

Docket Nº:12-2220-CV.
Citation:740 F.3d 817
Opinion Judge:POOLER, Circuit Judge:
Party Name:Ronita McCOLLEY, Plaintiff-Counter-Claimant-Counter-Defendant-Appellee, v. COUNTY OF RENSSELAER, Defendant-Cross-Claimant-Counter-Claimant-Appellant, Michael Riley, Investigator, individually and as agent, servant and/or employee of the County of Rensselaer, Defendant-Appellant.
Attorney:Crystal R. Peck, Bailey, Kelleher & Johnson, P.C., Albany, NY, for Appellants. Gennaro Dominick Calabrese (Terence L. Kindlon, on the brief), Kindlon Shanks & Associates, Albany, NY, for Appellee.
Judge Panel:Before: CALABRESI, POOLER, and RAGGI, Circuit Judges. CALABRESI, Circuit Judge: REENA RAGGI, Circuit Judge, dissenting:
Case Date:January 21, 2014
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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740 F.3d 817 (2nd Cir. 2014)

Ronita McCOLLEY, Plaintiff-Counter-Claimant-Counter-Defendant-Appellee,


COUNTY OF RENSSELAER, Defendant-Cross-Claimant-Counter-Claimant-Appellant,

Michael Riley, Investigator, individually and as agent, servant and/or employee of the County of Rensselaer, Defendant-Appellant. [*]

No. 12-2220-CV.

United States Court of Appeals, Second Circuit.

January 21, 2014

Argued: Feb. 26, 2013.

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[Copyrighted Material Omitted]

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Crystal R. Peck, Bailey, Kelleher & Johnson, P.C., Albany, NY, for Appellants.

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Gennaro Dominick Calabrese (Terence L. Kindlon, on the brief), Kindlon Shanks & Associates, Albany, NY, for Appellee.

Before: CALABRESI, POOLER, and RAGGI, Circuit Judges.

POOLER, Circuit Judge:

The County of Rensselaer (" Rensselaer" ) and Rensselaer County Drug & Gang Task Force (" Task Force" ) Investigator, Michael Riley (" Riley" ), appeal from a judgment of the United States District Court for the Northern District of New York (Lawrence Kahn, J. ) denying summary judgment on their claims of qualified immunity for purported violations of the Fourth Amendment and state tort law based upon omissions made by Riley in the application for a search warrant of Ronita McColley's home. We conclude that disputed material factual issues underlie the district court's denial of qualified immunity, and thus dismiss the appeal for lack of jurisdiction.



Ronita McColley (" McColley" ), a mother with no criminal history or connection to criminality and an employee at the Center for Disability Services in Albany, New York, lived with her young daughter in the first floor apartment of 396 First Street in Troy, New York, since 2003. On July 3, 2008, at approximately 6:00 a.m., McColley was awoken in her home by the sound of the City of Troy Police Department Emergency Response Team (" ERT" ) knocking down her door and the explosion of a flash-bang grenade. Dressed in all black, wearing face masks, and carrying automatic weapons, the members of the ERT screamed for McColley to get on the floor, but as there was not enough space for her to lie on the floor, a member of the ERT instead shoved McColley face down onto her bed. As she had been roused from sleep, McColley was clad in only a t-shirt and underwear. She repeatedly requested to cover herself but was repeatedly denied. These events took place under the authorization of a no-knock search warrant secured by Riley on June 27, 2008.

In connection with a drug investigation in Troy, Riley submitted a search warrant application to obtain four warrants to search four residences within the city, including McColley's home. The application was based upon information received from a confidential informant (" CI" ). On June 23, 2008, this CI, who had performed four controlled buys for the Rensselaer County Drug and Gang Task Force in the past, contacted Riley, advising him that he could purchase crack-cocaine from an individual identified as " Sport." Riley and other members of the Task Force set up a controlled buy, whereby the CI purchased crack-cocaine. On June 25, 2008, the CI again contacted Riley. He told Riley that, on the previous day, he had been taken to the first floor apartment of 396 First Street— McColley's home— to purchase crack from Sport. The CI further indicated that a drug dealer he had known for years, " Stink," was also present at 396 First Street and used a King of Hearts playing card to remove cocaine from a scale. The CI also noted there was a third male that he did not know in the apartment. The initial report from the CI and the related affidavit by Riley made no mention of a woman being present in the apartment. Though the CI indicated that he purchased drugs at 396 First Street on the singular occasion he had visited, the Task Force identified the apartment as a " stash house."

In addition to the information surrounding 396 First Street, the CI told Riley about three locations in Troy that were

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maintained by Stink and Sport— each of their two residences and an apartment leased to Tanisha Bruce, who reportedly sold " approximately one hundred grams of marijuana per week" provided by Stink. The CI informed Riley that he had visited Bruce's apartment over twenty times throughout the course of the previous six months with Stink and that Stink had made drug deals on each occasion. Upon Riley asking the CI whether Stink had " custody and control" of the apartment at 396 First Street, the CI responded, " Yes." The CI apparently did not describe the facts from which he was able to come to this conclusion based on only one visit to 396 First Street, merely indicating that as to 396 First Street, Bruce's apartment, and Stink's own apartment, Stink " comes and goes as he pleases."

On the same day, Riley conducted drive-bys of each of the four locations in order to have the CI identify them. After the CI had identified 396 First Street, Riley and his supervisor, Investigator Arthur Hyde, directed undercover officers in both stationary and drive-by surveillance on the apartment. No narcotics or other criminal activity was witnessed during the surveillance. Because the residences were located in a high crime area, the stationary surveillance was not conducted for extended periods of time. Following the identification of 396 First Street and prior to his application for a search warrant, utilizing a Lexis Nexis search and then running a criminal background check, Riley determined that McColley was the resident at that address, that she had no criminal history, and that she had a young child.

On June 27, 2008, Riley submitted an application for a search warrant for 396 First Street to Judge Turner of the City of Troy Criminal Court. The same affidavit was offered in support of search warrants for each of the locations identified by the CI. Riley identified the information provided by the CI as the basis for the application. Riley stated that the CI had previously given information that proved to be " both accurate and reliable" and which " led to five previous drug purchases and two search warrants, which resulted in the seizure of illegal drugs and contraband." 1 The warrant application recounted the CI's description of his interaction with Stink and Sport in the apartment. The affidavit also recounted the details relating to Bruce's apartment, including that the CI had visited the apartment between twenty and thirty times over the preceding six-month period and that Stink or Sport made drug deals on each occasion. For each of the search locations with the exception of McColley's home, Riley identified the resident individual and described his or her ties to drug dealing and criminality. Riley never mentioned McColley's identity, lack of criminal history, or even the fact that there was a resident who lived at 396 First Street— as opposed to the apartment being a location exclusively used by Stink in his drug dealing enterprise. In the warrant application, Riley also made no mention of the fact that surveillance had been conducted and yielded no evidence or even suspicion of narcotics or other criminal activity.

The search of McColley's home did not uncover any money, weapons, drugs, drug-related paraphernalia, or any evidence of criminality of any kind. The ERT took only a National Grid electric and gas bill and a registration bill for Hudson Valley Community College as fruits of the search.

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After McColley filed the instant action, Defendants moved for summary judgment on all counts. The district court granted summary judgment in part and denied it in part. The court denied summary judgment to Riley on McColley's Fourth Amendment claim, determining that material questions of fact prevented a finding of qualified immunity. The district court also denied summary judgment on McColley's related state tort claims as the viability of those claims rested on the determination as to probable cause, which the court already determined was subject to material questions of fact. Rensselaer and Riley now appeal the denial of the claim of qualified immunity.



" Ordinarily, orders denying summary judgment do not qualify as ‘ final decisions' subject to appeal." Ortiz v. Jordan, __ U.S. __, 131 S.Ct. 884, 891, 178 L.Ed.2d 703 (2011). There exists a " limited exception to the categorization of summary judgment denials as nonappealable orders," id., for a " denial of a claim of qualified immunity, to the extent that it turns on an issue of law," Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). This Court may " exercise interlocutory jurisdiction if the defendant contests the existence of a dispute or the materiality thereof, or ... contends that he is entitled to qualified immunity even under plaintiff's version of the facts." Tierney v. Davidson, 133 F.3d 189, 194 (2d Cir.1998). Such a denial of qualified immunity is reviewed by this Court to determine whether " the qualified immunity defense may be established as a matter of law." Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir.2004) (internal quotation marks omitted). This " review extends to whether a given factual dispute is ‘ material’ for summary judgment purposes, ... not ... whether a dispute of fact identified by the district court is ‘ genuine.’ " Id.

The district court determined that there were genuine issues of material fact that prevented a finding of qualified immunity with respect to Riley's submission of the warrant application. Because the district court determined that Riley made material omissions from the search warrant affidavit such that there was an issue of fact as to whether there was probable cause for the warrant to issue, it also...

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