DuBois v. City of White Plains
| Decision Date | 30 March 2021 |
| Docket Number | No. 16-cv-7771 (NSR),16-cv-7771 (NSR) |
| Parties | TIMOTHY DUBOIS, Plaintiff. v. CITY OF WHITE PLAINS; DETECTIVE JIM TASSONE, Individually and in His Official Capacity as a Police Officer Employed by the City of White Plains; POLICE OFFICER JAHMAR CUNNINGHAM, Individually and in His Official Capacity as a Police Officer Employed by the City of White Plains, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Plaintiff Timothy DuBois ("Plaintiff" or "DuBois") commenced the instant action against Defendants Jaymar Cunningham, James Tassone, and the City of White Plains (collectively, "Defendants") asserting federal claims under the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution pursuant to 42 U.S.C. § 1983 ("Section 1983"), 42 U.S.C. § 1985 ("Section 1985"), and state constitutional and common law claims. Before the Court is: (1) Defendants' motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure (ECF No. 56); and (2) Plaintiff's cross motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure (ECF No. 66). For the following reasons, Defendants' motion is GRANTED in part and DENIED in part and Plaintiff's motion is DENIED.
The following facts are drawn from the parties' Rule 56.1 submissions and the record. They are undisputed unless otherwise noted.
The Interdiction of Heroin and Planning Meeting (June 3, 2014 - June 5, 2014)
On June 3, 2014, the United States Customs and Border Protection ("CBP") located at JFK International Airport ("JFK") interdicted a United States Express mail parcel (the "Intercepted Package") originating from India containing 116 grams of heroin and addressed to Onam Andrews at 11 Fisher Avenue, Apr. 3D, White Plains, New York 10606 (the "Target Premises"). (Defendant's Rule 56.1 Statement of Facts ("Defs' R.56.1") (ECF No. 58) ¶ 1.) Initially, the CBP contacted Drug Enforcement Agency ("DEA") Task Force Officer Steve Smith ("TFO Smith") to confirm whether the DEA would handle a controlled delivery of the Package and was advised that the they would handle the delivery and take custody of the Package. (Defendants Exhibit C ("DEA Report of Investigation") (ECF No. 57-3) at 2.) Subsequently, the United States Attorney's Office for the Southern District of New York advised the DEA that they did not intend to prosecute the case. (Id. at 2-3; Plaintiff's Response to Defendants' Rule 56.1 Statement of Facts & Statement of Undisputed Material Facts ("Pl's R.56.1") (ECF No. 62) ¶ 76.)
The relevant agencies involved in the investigation began to gain clarity on June 4, 2014, when DEA Task Force Officer John Heffner ("TFO Heffner") contacted the White Plains Police Department Narcotics Unit ("WP Narcotics Unit") and "was informed by Sgt. [Anthony Kressevich ("Sgt. Kressevich")] of the [WP Narcotics Unit] that White Plains PD would attempt the controlled delivery of the intercepted package" and then "[a]rrangements were made to turn over custody of the intercepted package to White Plains Police Department." (DEA Report of Investigation at 3.) Sgt. Kessevich subsequently advised White Plains Police Officer Jaymar Cunningham ("Officer Cunningham") that they would be assisting the DEA in a controlleddelivery operation involving narcotics. (Defs' R.56.1 ¶ 4.) Around that same time, DEA Task Force Officer Vincent Pisano ("TFO Pisano") took custody of the Intercepted Package at JFK, travelled to Westchester, and transferred custody of the Intercepted Package to Officer Cunningham. (DEA Report of Investigation at 3.) Officer Cunningham and White Plains Police Department Detective James Tassone ("Det. Tassone") received the package during a meeting with TFO Heffner and TFO Smith where they were informed that CBP had interdicted the Package and that it was destined for Onam Andrews at the Target Premises. (Defendants' Exhibit D ("White Plains PD Incident Report") (ECF No. 57-4) at 4.)
Around that same time, Sgt. Kressevich directed Officer Cunningham to obtain a judicial search warrant for the Target Premises and the addressee, Onam Andrews. (Defs' R.56.1 ¶ 6.) Sgt. Kressevich also assigned Det. Tassone to the surveillance team surrounding the Target Premises. (Id. ¶ 7.) At approximately 10:57 a.m., a Search Warrant Affidavit and a Search Warrant Order for the Target Premises was presented to the City Court Judge Barbara Leak of the City of White Plains, and the Search Warrant Order was signed by Judge Barbara Leak. (White Plains PD Incident Report at 4.)
The following day, on June 5, 2014, a meeting took place at the White Plains Police Department attended by Sgt. Kressevich, Officer Cunnningham, TFO Smith, TFO Heffner, members of the Department of Homeland Security, DEA, United States Postal Service Inspector Yui Chow, and various other federal agency officers, where they discussed a plan to make a controlled delivery of the Package to persons at the Target Premises. (Defendants' Exhibit J ("Kressevich Dep. Tr.") (ECF No. 57-10) 43-47.) In sum, the plan was that, later that day, the Package would be given to Inspector Chow, he would drive to the Target Premises while other law enforcement officers sat outside, Inspector Chow would go to the specific apartment, ring a bell,attempt to locate Onam Andrews, and attempt to make a delivery of a package to Onam Andrews. (Kressevich Dep. Tr. 47:13-23.) The record is less than clear as to whether the delivery was anticipated to take place at the Target Premises, or immediately outside the Target Premises.
At this point in time, prior to the controlled delivery, investigators did not have any information that DuBois was in any way connected with the Package. (Pl's 56.1 ¶ 80.) Nor did investigators have any information connecting DuBois to the Target Premises. (Pl's 56.1 ¶ 81.)
The Controlled Delivery of the Package to DuBois (June 5, 2014)
On June 5, 2014, Det. Tassone, at Sgt. Kressevich's direction, gave the Package to Inspector Chow. (Defs' 56.1. ¶ 15.) Inspector Chow arrived near the Target Premises, where a surveillance team was set up, and was provided with equipment capable of transmitting audio and video signals one way to a receiver. (Defs' 56.1 ¶¶ 18- 19.) There is a dispute as to whether there were gaps in the recording. Sgt. Kressevich was the sole person assigned a receiver to access the recordings in real time. (Defs' 56.1 ¶ 21.) Inspector Chow was dressed as a U.S. Postal mail carrier, parked a postal van outside of the Target Premises, and spoke to a case agent with White Plains Homeland Security Investigations and Sgt. Kressevich prior to entering the building.
Inspector Chow proceeded to Apartment 3D, knocked at the door and rang the bell, and Stephen Williams ("Williams") answered the door. (Id. at 18.) Williams identified himself as Onam Andrews, and physically matched a photograph that was shown to Inspector Chow prior to the controlled delivery as a potential resident of the Target Premises. (Id. at 18-19 & 32-34.) Inspector Chow and Williams then engaged in a heated exchange where: (1) Inspector Chow told Williams that he had to come down to the postal vehicle to sign for the Package, (2) Williams became irritable and asked where the Package was from and whether it could be delivered to his door, (3) Inspector Chow advised that the Package was from India and that it could not be deliveredto his door, and (4) Williams said he could not come down to pick up the package as he had hurt his ankle. (Defs' 56.1 ¶¶ 29-32.)
After this exchange, Williams initially agreed to go to pick up the Package, until another man, Plaintiff DuBois, came out of the Target Premises and agreed to come down and get the package instead of Williams. There is no dispute that the subsequent conversation between Inspector Chow and DuBois was not properly recorded. Instead, the parties dispute some of the substance of what was exchanged. Defendants contend that Plaintiff DuBois identified himself as Onam Andrews while Plaintiff denies that he ever identified himself as Onam Andrews. (Pl's R.56.1 ¶ 33.) In any event, DuBois accompanied Inspector Chow downstairs, arrived at the Postal Van and signed a peach delivery slip for the Package as "George Andrews." (Defs' R. 56.1 ¶¶ 36-37.) The parties dispute whether Plaintiff ever took possession of the package but, under either account, Plaintiff was detained and handcuffed by two plainclothes offices soon after signing the delivery slip. (Pl's R.56.1 ¶¶ 38-41.) Around the same time that DuBois was detained, Sgt. Kressevich heard Inspector Chow say that the target is upstairs, which he interpreted to refer to Williams. (Id. ¶ 43.)
There is some dispute over the role that Officer Cunningham and Det. Tassone played in Plaintiff's arrest. On the one hand, Plaintiff contends that based on Det. Tassone's testimony, that Det. Tassone and Officer Cunningham were part of the arrest team. (Pl's 56.1 ¶¶ 44-45.) Defendants contend that Det. Tassone was not present when the arrest took place and that, by the time that Officer Cunningham had arrived on the scene, Plaintiff was already under arrest and handcuffed. (Defs' 56.1 ¶¶ 44-45.) Ultimately, Plaintiff does not present any evidence suggesting that Det. Tassone had any direct contact with Plaintiff and the record indicates that Det. Tassone was not directly involved in apprehending, detaining, conversing with, or transporting Plaintiff.
Subsequently, an unidentified law enforcement officer told DuBois that he was under arrest for attempted possession of heroin, DuBois responded that he was unaware of what could have precipitated that arrest, and DuBois also advised him that Williams and "Mr. Andrews" were in the Target Premises before he stopped talking. (Defs' R.56.1 ¶¶ 46-48.) Another unidentified...
To continue reading
Request your trial