Hines v. City of Albany
| Decision Date | 01 July 2011 |
| Docket Number | 1:06-CV-01517 |
| Parties | Constance Hines and Marshay Hines, Plaintiffs, v. The City of Albany; Albany Chief of Police James W. Tuffey; Assistant Chief Steven Krokoff; and Officers Brian Quinn, Jeff Roberts, John Monte, Alfred Martin, Brian Plante, Robert Mulligan, Tim Haggerty, Jeffrey Hyde, Robert Shunck, and Michael Haggerty, Defendants. |
| Court | U.S. District Court — Northern District of New York |
(NPM)
APPEARANCES:
COOPER ERVING & SAVAGE LLP
Attorneys for plaintiffs
OFFICE OF THOMAS MARCELLE
Attorney for plaintiffs
REHFUSS, LIGUORI &
ASSOCIATES, P.C.
PHILLIP G. STECK, ESQ.
KIMBERLY G. FINNIGAN, ESQ.
THOMAS MARCELLE, ESQ.
STEPHEN J. REHFUSS, ESQ.
Presently before the court in this civil rights action are cross motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Defendants seek summary judgment dismissing the entire complaint. Plaintiffs oppose and cross move for summary judgment on their second cause of action. Defendants oppose and both parties have submitted their respective reply papers. Decision on the pending motions is based entirely on the submitted papers, without oral argument. For the reasons that follow, defendants' motion is granted in part and denied in part, and plaintiffs' motion is granted in part and denied in part.
Plaintiffs Constance Hines and her daughter, Marshay Hines ("Plaintiffs") bring this civil rights action pursuant to 42 U.S.C. § 1983, alleging that the defendants violated rights guaranteed them by the Fourth, Fifth and Fourteenth Amendments to the United States Constitution. Defendants are the City of Albany ("the City"); the Albany Chief of Police, James W. Tuffey ("Tuffey"); Assistant Chief of Police, Steven Krokoff2 and ten named Albany Police Department ("APD") officers.
By their Second Amended Complaint,3 Plaintiffs set forth claims against the City pursuant to Monell v. Dep't of Soc. Serv. of the City of New York, 436 U.S. 658, 694-95, 98 S.Ct. 2018, 2037-38 (1978), as well as claims against the individual defendants based on two separate constitutional violations. First, Plaintiffs allege that all defendants except Michael Haggerty ("M. Haggerty") violated their Fourth and Fourteenth Amendment rights when they were held for approximately eight hours pending the application for a search warrant. Second, plaintiff Constance Hines alleges that all defendants violated her Fourth, Fifth and Fourteenth Amendment rights when they seized her vehicle without probable cause and without a warrant, and when they subsequently failed to provide her with a hearing or any kind of process to determine whether the vehicle should be returned to her or retained by the City.
The following facts, relevant to the two claimed constitutional violations, are undisputed unless otherwise noted.4
In or around September 2005, the New York State Office of the Attorney General's Organized Crime Task Force ("OAG"), the New York State Police ("the State Police") and APD commenced a multi-agency investigation into the distribution and sale of illegal narcotics within the Albany, New York area. The OAG was the lead agency in this investigation and was responsible for the criminal prosecutions incurred as a result of the investigation. One of the targets of the investigations was Prince Hines, also known as "J-Rock." Prince resided at 38 Osborne Street in Albany along with his mother and sister, plaintiffs Constance and Marshay Hines.
Constance Hines owned a 2000 Cadillac Escalade ("Escalade" or "vehicle") that was registered in her name. According to Defendants, Prince Hines "was a known drug dealer in [Albany] and often conducted his illegal activity from" the Escalade. Defs.' Statement of Material Facts ("SOMF") ¶ 7, Dkt. No. 71-2. Defendants further allege that "the Escalade was widely known throughout the community as Prince's vehicle." Id. ¶ 9. Plaintiffs dispute that the evidence establishes that Prince was conducting illegal activity from the vehicle, and further argue that the evidence Defendants cite to support their latter assertion is based on "inadmissible hearsay and opinion without any supporting foundational evidence." See Pls.' Resp. to Defs.' SOMF ¶¶ 7, 9, Dkt. No. 77-7.
Defendants cite deposition testimony of John W. Dormin ("Dormin"), who was the Assistant Deputy Attorney General that was assigned to prosecute the criminal charges against Prince Hines. See Dep. of John W. Dormin, May 28, 2009, 5:7-17; 61:3-11, at Ex. A to Aff. of Phillip G. Steck, Oct. 9, 2009, Dkt. No. 77 ("Steck Aff."). Dormin explained the basis of targeting the Escalade for seizure:
Prince Hines used the [] Escalade throughout this conspiracy as his main mode of transportation. As I testified earlier, this conspiracy transported drugs through vehicles primarily. There was a prior arrest of Mr. Hines in that vehicle, in possession of narcotics. There were observations - I recall being told of observations by various investigators of Mr. Hines using the vehicle or moving about in the conduct of this drug conspiracy in the vehicle.
Dormin Dep., 59:17-60:7. Clearly, Dormin's testimony is, in part, hearsay, insofar as it is offered to support Defendants' factual assertion that the Escalade was known throughout the community as Prince's vehicle and was used by Prince to conduct illegal activity in furtherance of the conspiracy. Also, Dormin does not provide the foundation for his opinion that Prince used the Escalade throughout this conspiracy as his main mode of transportation. Thus, by itself, the submitted testimony of Dormin would be inadmissible to support the Defendants' factual assertion.
Defendants' also cite deposition testimony from defendant Jeff Roberts ("Roberts") that throughout his surveillance of Prince Hines as well as his presence in the neighborhood working other cases, he regularly saw Prince driving the Escalade. See Dep. of Jeffrey Roberts, Apr. 8, 2009, 10:18-11:8, at Ex. X to Aff. of Stephen J. Rehfuss, Aug. 14, 2009, Dkt. No. 71 ("Rehfuss Aff."). Further, Constance Hines testified that between September 2005 and April 2006, Prince would have control of the Escalade during the day once or twice per week. See Dep. of Constance Inger Hines, Mar. 26, 2009, at Ex. B to Steck Aff. and Ex. HH to Rehfuss Aff.
In support of their assertion that Prince was a known drug dealer and often conducted illegal activity from the Escalade, Defendants cite deposition testimony of defendant Alfred Martin ("Martin") that he knew Prince to be amember of a certain gang on the south end of Albany and that for a period of about three years they had a "working relationship" and knew each other by face. Dep. of Alfred Martin, Apr. 9, 2009, 10:17-11:2, at Ex. BB to Rehfuss Aff. Martin also testified that he had "been a party to [Prince] being arrested for drugs." Id., at 10:20-22. To be sure, Defendants submitted a copy of a January 4, 2004 incident report, which reflects that Prince was charged with criminal possession of a controlled substance and criminal possession of a narcotic with intent to sell after a traffic stop during which Prince was driving a 2000 Cadillac Escalade. See Ex. D to Rehfuss Aff.5 According to the report, crack cocaine was found in the driver's side door. See id. Thus, the only evidence in this record that Prince ever conducted illegal activity from the Escalade is his January 2004 arrest.
After several months of surveillance by the OAG, APD and the State Police, Dormin obtained sealed indictments and arrest warrants for approximately fifteen individuals, including Prince Hines, in connection with drug activity within the City of Albany. At approximately 6:25 a.m. on April 29, 2006 certainmembers of APD executed the arrest warrant for Prince Hines at 38 Osborne Street. During the course of his arrest, Prince admitted to possessing marijuana in his bedroom. Based on this admission, defendant John Monte ("Monte") applied for and received a warrant to search 38 Osborne St. See Ex. H to Rehfuss Aff.
Prior to the date of Prince's arrest, a meeting was held between APD, OAG and the State Police to discuss the execution of the arrest warrants. At that time, a discussion took place regarding a list of vehicles that were targeted for possible forfeiture, including the Escalade. See Dormin Dep., 58:8-59:9. According to Dormin, he was asked at this meeting if he believed there was sufficient evidence to take possession of the Escalade and Dormin responded that he "believed there was." Id., 44:1-20. Dormin also testified that during the meeting, APD expressed an interest in forfeiting the Escalade. See id., 75:21-76:3.
On April 29, 2006, in the course of executing the arrest warrant for Prince, APD seized the Escalade. Plaintiffs submit that the Escalade was seized without a warrant, citing only an attorney affidavit for support. Defendants object on the basis that the statement is not supported by admissible evidence. To be sure, attorney affidavits are not part of the record for purposes of a motion for summary judgment. See N.D.N.Y. R. 7.1(a)(3); Fed. R. Civ. P. 56(c)(4). See also Randell v. United States, 64 F.3d 101, 109 (2d Cir.1995). Here, counsel for Plaintiffs submits by affidavit that his examination of the record reflects that APD never obtained a warrant to search or seize the Escalade. See Steck Aff. ¶ 8. Without waiving their objection, Defendants deny this statement, arguing that Dormin "unequivocally testified that the APD had authority to search and seize the vehicle pursuant to the arrest warrant he obtained, as well as the search warrant later obtained by the APD." Defs.' Resp. to Pls.' SOMF at ¶ 4, Dkt. No. 80-2, citing Dormin Dep., 44-45. In fact, there is nothing unequivocal about Dormin'stestimony in this regard. For example, the portion of...
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