Flores v. City of Mount Vernon, 97 CIV. 6144(CM)(GAY).

• Decision Date: 19 January 1999
• Docket Number: No. 97 CIV. 6144(CM)(GAY).,97 CIV. 6144(CM)(GAY).
• Citation: 41 F.Supp.2d 439
• Parties: Karen FLORES, Plaintiff, v. THE CITY OF MOUNT VERNON, Mount Vernon Police Department, Det. Sgt. Mark Hackett, Shield No. 3, Det. Besley, Shield No. 32, P.O. Nyrita Sierra, Shield No. 145, and John Does 1-8, Shield Nos. Unknown, John or Jane Doe 9, Shield No. Unknown, Defendants.
• Court: U.S. District Court — Southern District of New York

Page 439

41 F.Supp.2d 439

Karen FLORES, Plaintiff, v. THE CITY OF MOUNT VERNON, Mount Vernon Police Department, Det. Sgt. Mark Hackett, Shield No. 3, Det. Besley, Shield No. 32, P.O. Nyrita Sierra, Shield No. 145, and John Does 1-8, Shield Nos. Unknown, John or Jane Doe 9, Shield No. Unknown, Defendants.

No. 97 CIV. 6144(CM)(GAY).

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

January 19, 1999.

Scott Korenbaum, Kupfer Rosen & Herz, New York City, for plaintiff.

Louis Martino, Martino & Weiss, Mt. Vernon, NY, for defendants.

MEMORANDUM DECISION AND ORDER

McMAHON, District Judge.

ORDER GRANTING PLAINTIFF PARTIAL SUMMARY JUDGMENT AGAINST DEFENDANT DET. SGT. MARK HACKETT ON HER FIRST, THIRD, AND TENTH CLAIMS FOR RELIEF; AND AGAINST THE CITY OF MOUNT VERNON ON HER NINTH CLAIM FOR RELIEF; DENYING DEFENDANTS' CROSS-MOTION FOR SUMMARY JUDGMENT; DISMISSING PLAINTIFF'S TENTH AND ELEVENTH CLAIMS WITH RESPECT TO THE CITY OF MOUNT VERNON; AND DISMISSING PLAINTIFF'S FOURTH, FIFTH, SIXTH, AND SEVENTH CLAIMS IN THEIR ENTIRETY.

Before the Court are Plaintiff's motion for partial summary judgment and Defendants' cross-motion for summary judgment. Plaintiff's motion is granted in part and Defendants' cross-motion is denied.

I. Statement of Facts

The utterly outrageous facts of this matter are not in dispute. Indeed, on the record before me, they come almost entirely from the mouths of the Defendants. They are as follows:

On March 5, 1997, Mount Vernon Police Investigator James Cosenza was approached by a person referred to as Confidential Informant No. 200 (the "CI"). The CI apparently informed Cosenza that persons inside a restaurant known as Frieary's Pub were using powdered cocaine. Pursuant to Cosenza's instructions, the CI went to Frieary's Pub to purchase cocaine on March 13, 1997. After he did so, he returned to Cosenza and stated that he had engaged in a conversation with a white male, in his early to mid-fifties, of medium build and fair complexion, approximately 5'-7" to 5'-9" who stated that his name was Shawn. Shawn was said to be the owner of the pub, and indeed proved to be Shawn Frieary, a white male in his early to mid-fifties whose appearance generally conforms to the CI's description. Shawn agreed to sell cocaine to the CI. Shawn left the bar area, went to the back of the premises, returned to his station behind the bar and exchanged a clear ziplock bag containing a white powdery substance for U.S. currency that had been provided by Cosenza.

On March 14, 1997, Cosenza swore out an affidavit for a search warrant based on the CI's report to him. The warrant authorized the Mount Vernon Police Department to search Frieary's Pub for evidence of narcotics and for a person named Shawn who conformed to the CI's description. Nothing in the CI's report to Cosenza, Cosenza's affidavit in support of the application for a search warrant or the search warrant itself made any mention of a Karen Flores, or for that matter any woman. There is no evidence in this record that she was even in Frieary's Pub on March 13, let alone that she was in any way involved in the sale of cocaine to the CI.

Det. Sgt. Mark Hackett, the commander of the Narcotics Unit for the Detectives Division of the Mount Vernon Police Department (the "Narcotics Squad"), decided to execute the warrant on the evening of March 20, 1997. Mrs. Flores, who had worked in the restaurant as a waitress/bartender for some four years, was on duty that evening. Prior to the execution of the warrant, Hackett held a brief meeting to mete out assignments. During that meeting, neither Hackett, Cosenza nor any other member of the Narcotics Squad discussed the contents of the search warrant, the evidence that had led to its issuance, the possibility that firearms might be present in the Pub, or the possibility that others besides "Shawn" might be involved in the sale of narcotics. As the Narcotics Squad set out to execute the warrant, not a single member of the team had a shred of evidence linking Mrs. Flores to any illegal activity that might have occurred, or might be occurring, at Frieary's Pub.

The Narcotics Squad entered Frieary's Pub at approximately 9:15 PM on the evening of March 20 and spent about an hour and a half searching the premises. A member of the team immediately detained Mrs. Flores, who was the only employee behind the bar. The officer ordered her to place her hands on the top of the bar, and she did so. Another officer brought her a stool and ordered her to sit with her hands on her lap while the Pub was searched. At all times during the search, Mrs. Flores was seated on the stool, in full view of the members of the team, who were searching the entire premises, including the bar area. The bar was square and had stools around its outside; Mrs. Flores was at all times inside the square.

The search party found no narcotics either on or behind the bar. There was some money on the bar, but Mrs. Flores identified it as tip money, and a member of the team, Officer Paul Puccini, put it in the tip jar for her. He did not believe, and had no reason to believe, that the money was somehow related to the purchase of cocaine. Almost as soon as he came into the Pub, Officer Puccini saw a patron of the bar, Gregory LaGuardia, pick up a packet from the bar which he thought contained cocaine. However, Officer Puccini did not see Mrs. Flores handle that item and, other than the fact that she was working behind the bar, he had no reason to associate her with the packet. A similar packet was later found on the floor adjacent to the bar, but not on the side of the bar where Mrs. Flores was working; it was dropped there by a patron, Peter Zeolla, as observed by Officer James Cosenza. Officer Puccini did not frisk Mrs. Flores, but he did search her pocketbook (even though he had no warrant authorizing him to search it and no reason to suspect that it contained a weapon that presented a danger to his person). Puccini did not see or hear Mrs. Flores do or say anything that led him to believe that she was involved with any criminal activity, and neither in his deposition nor in his affidavit did he indicate that he believed that she was so involved.

Frieary and three patrons of the Pub were arrested for possession of cocaine shortly after the police entered the Pub. Additional stash (cocaine and marijuana) were found in the basement of the premises, the cocaine in a filing cabinet and the marijuana inside a wall. Puccini informed Sgt. Hackett that his search of the area behind the bar had uncovered no evidence of criminality, and no other member of the Narcotics Squad said anything to Hackett to indicate that Mrs. Flores had committed or was about to commit a crime.

Nonetheless, at the conclusion of the search, Hackett ordered Mrs. Flores arrested. According to Hackett, he made this decision because (1) a number of patrons in the Pub possessed cocaine, (2) the controlled buy that took place a week earlier had been made over the bar (albeit after Frieary had gone into the back room), and (3) the police did not know who had gone to the back room with "Shawn" to get the cocaine a week earlier. See Dep. of Det. Sgt. Mark Hackett at 127-28.

At Hackett's order, Mrs. Flores was handcuffed and transported by Officer Besley to Mount Vernon Police Headquarters. Besley did not tell Mrs. Flores that she was being arrested for any crime; rather, he told her she was being taken into the station house to be searched. When they arrived at the station, Besley brought Mrs. Flores into a small, windowless room and asked a female member of the Narcotics Squad, Nyrita Sierra, to come to that room and search Mrs. Flores. Officer Sierra had not been a member of the team that executed the warrant in Frieary's Pub; she received her assignment in the station house, subsequent to Mrs. Flores's arrest. Officer Sierra forced Plaintiff to strip and subjected her to an invasive strip search, including an examination of her genitals and anus. Needless to say, nothing was found on Mrs. Flores's person. She was not charged and was allowed to leave the station house.

Mrs. Flores brought this action against the officers involved in her humiliation. She also sued the City of Mount Vernon, as it has a policy of strip searching every person who is arrested for narcotics-related activity, and she was searched pursuant to that policy. After discovery, both parties moved for summary judgment.

II. Legal Analysis

There is no need to reiterate the familiar standard for granting or denying summary judgment. Suffice it to say that there are no disputed issues of fact in this case; indeed, Plaintiff expressly relies on the testimony of the defendant officers in support of her motion, rather than on her own testimony. The question, then, is purely one of law — did Det. Sgt. Hackett have probable cause to arrest Mrs. Flores on March 20, 1997, at Frieary's Pub? If he did, then Plaintiff's claim fails, because she was subjected to a search incident to a lawful arrest. If he did not, then summary judgment in Mrs. Flores's favor is appropriate as against at least some defendants on her Fourth Amendment claim. See Wu v. City of New York, 934 F.Supp. 581, 588 (S.D.N.Y.1996).

A. Probable Cause

Probable cause to arrest exists when police officers have knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing a crime. See Dunaway v. New York, 442 U.S. 200, 208, n. 9, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979). Here, Defendants have the burden to establish that they had probable cause. See Raysor v. Port Auth. of New York & New Jersey, 768 F.2d 34, 40 (2d Cir.1985); Wu, 934 F.Supp. at 586. To meet their burden, the police officers must show, by admissible evidence, that they have a quantum of evidence "more than rumor, suspicion, or even a strong reason to suspect." Wu...