Elk v. Townson

• Decision Date: 15 December 1993
• Docket Number: No. 92 Civ. 9138(VLB).,92 Civ. 9138(VLB).
• Citation: 839 F. Supp. 1047
• Parties: Brett ELK, Plaintiff, v. Deputy Jeffrey TOWNSON, The County of Putnam, and the Putnam County Sheriff's Department, Defendants.
• Court: U.S. District Court — Southern District of New York

839 F. Supp. 1047

Brett ELK, Plaintiff, v. Deputy Jeffrey TOWNSON, The County of Putnam, and the Putnam County Sheriff's Department, Defendants.

No. 92 Civ. 9138(VLB).

United States District Court, S.D. New York.

December 15, 1993.

COPYRIGHT MATERIAL OMITTED

Robert W. Folchetti, Stockfield & Fixler, Carmel, NY, for plaintiff.

Daniel A. Seymour, Servino & Seymour, White Plains, NY, for defendants.

MEMORANDUM ORDER

VINCENT L. BRODERICK, District Judge.

I

This case involves alleged violation of civil rights under 42 USC 1983 on grounds of false arrest and unreasonable search. The plaintiff Brett Elk ("Elk") brought this action against Deputy Sheriff Jeffrey Townson ("Officer Townson"), the County of Putnam (the "County") and the Putnam County Sheriff's Department (the "Sheriff's Department") (collectively, the "defendants"). The defendants have moved to dismiss the complaint under Fed.R.Civ.P. 12(b)(6) and for summary judgment under Fed.R.Civ.P. 56(b) based on qualified immunity.

I consider both applications as motions for summary judgment¹ since both plaintiff and moving defendants have submitted affidavits and discovery has been completed. New York v. United States, 942 F.2d 114 (2nd Cir.1991), modified on other grounds ___ U.S. ___, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992); Hadges v. Yonkers Racing Corp., 733 F.Supp. 686 (S.D.N.Y.1990). I grant the defendants' motions.

II

In the early afternoon of February 11, 1992 Elk and his friend Oliver² drove in Oliver's BMW (the "BMW") toward the local high school, allegedly to play soccer. At about 1:30 PM, Oliver parked the BMW in the parking lot of a sandwich shop (the "shop") next door to the school. Deputy Sheriff (then Investigator) Townson was parked in the same lot in an unmarked police van about 75 feet away from the BMW, surveilling the lot for possible narcotics activity.

Officer Townson claims he observed Elk and Oliver smoking a marijuana cigarette immediately after parking the BMW.³ Shortly thereafter, both Elk and Oliver got out and stood talking at the rear of the BMW. At about 1:40 PM a third person, William, came out of the shop and walked towards the BMW. Officer Townson claims that after a brief conversation William handed Elk money and Oliver handed William a quantity of what appeared to be marijuana in a plastic bag. Officer Townson radioed this information to two other officers (the "other officers") who were in the general vicinity.

Elk, denying that he was involved in any illegal activity, claims that immediately after entering the parking lot he and Oliver left the BMW and soon met William, to whom Elk was introduced. Elk states that he then walked by himself to the high school to find other soccer players but was unable to do so. According to Elk, he rejoined Oliver and William a short time later in the parking lot, where the three kicked a soccer ball around. All three men then left in Oliver's BMW, headed for the school fields.

What happened subsequently is undisputed. At about 2:00 PM, the other officers, responding to Officer Townson's call, followed the BMW and stopped it shortly thereafter. Officer Townson arrived a brief time later.

The other officers informed Officer Townson that the vehicle had been searched, and that a film canister containing an indeterminate quantity of marijuana had been found between Oliver and Elk, the two front-seat passengers, within easy reach of Elk. Five small bags of marijuana were taken from Oliver's person, and two five dollar bills were found in Elk's pocket.

All three occupants of the car were arrested and taken to the Sheriff's Department, where they were charged with criminal possession of marijuana in the fifth degree, under section 221.10 of the New York Penal Code, and criminal sale in the fourth degree, under section 221.40. On the arrest report, Elk initially gave his name as "Robert Elk".⁴ Elk claims he was strip searched at the Sheriff's Department and then released.

Oliver pleaded guilty to criminal possession of marijuana in the fifth degree, N.Y.Pen.L. § 221.10, and William pleaded guilty to disorderly conduct. On October 7, 1992, Elk, who had no previous criminal record, signed a document releasing the District Attorney's office and the Sheriff's Department from civil liability in exchange for dropping the charges against him. Elk claims that he executed this release only because his attorney advised him that it was unenforceable. He then filed this lawsuit.

III

A threshold issue is whether the officers had probable cause to stop and search Oliver's vehicle and to arrest Elk. Under New York and federal law, claims for unreasonable search and false arrest must be founded on lack of probable cause. Soares v. Connecticut, 8 F.3d 917 (2d Cir.1993); Covino v. Patrissi, 967 F.2d 73, 78 (2d Cir.1992); Golino v. New Haven, 950 F.2d 864, 870 (2d Cir.1991), cert. denied ___ U.S. ___, 112 S.Ct. 3032, 120 L.Ed.2d 902 (1992); (unreasonable search); Cameron v. Fogarty, 806 F.2d 380, 386 (2d Cir.1986), cert. denied 481 U.S. 1016, 107 S.Ct. 1894, 95 L.Ed.2d 501 (1987) (false arrest); Weber v. Dell, 804 F.2d 796 (2d Cir.1986), cert. denied 483 U.S. 1020, 107 S.Ct. 3263, 97 L.Ed.2d 762 (1987).

Summary judgment is appropriate where there is an "absence of a genuine issue concerning any material fact". Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). "Credibility determinations ... are ... not those of a judge ... when ruling on a motion for summary judgment ..." Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986). The nonmoving party may not defeat a motion for summary judgment by relying "simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible." Ying Jing Gan v. New York, 996 F.2d 522, 532 (2d Cir.1993); SEC v. Research Automation Corp, 585 F.2d 31, 33 (2d Cir. 1978).

Normally, if facts essential to support opposition to a summary judgment motion remain to be obtained, the nonmoving party may seek a continuance under Rule 56(f) to permit affidavits to be obtained or discovery to be had. Ying Jing Gan, 996 F.2d 522, 532 (2d Cir.1993); L & L Started Pullets, Inc v. Gourdine, 762 F.2d 1, 3-4 (2d Cir.1985); Wyler v. United States, 725 F.2d 156, 160 (2d Cir.1983). In this case discovery has been completed and both parties have had ample opportunity to uncover facts and evidentiary support for them.

When considering a police officer's affidavit in a section 1983 case on the matter of probable cause:

... allegedly false material is set aside and those facts allegedly omitted—if accompanied by a sufficient statement of supporting reasons—are substituted to see if the contents of the affidavit as amended support a finding of probable cause. See Franks v. Delaware, 438 U.S. 154, 171-72, 98 S.Ct. 2674, 2684-85, 57 L.Ed.2d 667 (1978).... After the affidavit has been corrected in a light most favorable to the plaintiffs, the district court should then ... determine whether as a matter of law it did or did not support probable cause.

Cartier v. Lussier, 955 F.2d 841, 845 (2d Cir.1992). Here, probable cause existed even looking at the facts in a light most favorable to the plaintiff.

Elk cannot contradict what the police saw in the car because he says he was not there and nor does he dispute that five bags of marijuana were found in Oliver's clothing. The officers testified without contradiction that Oliver's vehicle as well as all three individuals smelled strongly of burnt marijuana. Elk was present in a BMW that was stopped on a proper basis, and for which a warrantless search was appropriate. New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981); Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); United States v. Mapp, 476 F.2d 67 (1973); People v. Belton, 55 N.Y.2d 49, 447 N.Y.S.2d 873, 432 N.E.2d 745 (1982).

Elk does not dispute that a canister of marijuana was found in the front seat space in the BMW next to him within his easy reach. Under such circumstances constructive possession could have been imputed to Elk, Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987); Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986); People v. Blasich, 73 N.Y.2d 673, 543 N.Y.S.2d 40, 541 N.E.2d 40 (1989) (constructive possession); People v. Langen, 60 N.Y.2d 170, 469 N.Y.S.2d 44, 456 N.E.2d 1167, cert. denied 465 U.S. 1028, 104 S.Ct. 1287, 79 L.Ed.2d 690 (1983); People v. Belton, 55 N.Y.2d 49, 447 N.Y.S.2d 873, 432 N.E.2d 745 (1982); People v. Sierra, 45 N.Y.2d 56, 407 N.Y.S.2d 669, 379 N.E.2d 196 (1978) (constructive possession), providing a proper basis on which to arrest him.⁵ Accordingly, there is no genuine issue to be tried and as a matter of law probable cause existed for Elk's arrest.

IV

Elk claims that a strip search performed at the Sheriff's Department was an unreasonable search violative of the Fourth Amendment. As an invasive procedure, a strip search requires probable cause. Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979); Rivera v. United States, 928 F.2d 592 (2d Cir.1991); Walsh v. Franco, 849 F.2d 66, 69-70 (2d Cir.1988); M.M. v. Anker, 607 F.2d 588, 589 (2d Cir. 1979). Arrestees have a right, absent a reasonable suspicion of concealment of drugs or contraband, not to be subject to search by prison officials. Weber v. Dell, 804 F.2d 796, 802 (2d Cir.1986), cert. denied 483 U.S. 1020, 107 S.Ct. 3263, 97 L.Ed.2d 762 (1987). The suspicion justifying the search must arise from the nature of the charge or the circumstances of the arrest. United States v. Montoya De Hernandez, 473 U.S. 531, 105 S.Ct. 3304, 87 L.Ed.2d 381 (1985).

In this case, Elk's presence in a vehicle which smelled strongly of marijuana and in which marijuana was found both on another occupant and in a container located near him gave the Sheriff's Office reasonable grounds to...