Koller v. Hilderbrand
| Decision Date | 19 March 2013 |
| Docket Number | Civil No. 3:09cv999 (JBA). |
| Citation | 933 F.Supp.2d 272 |
| Parties | Edward A. KOLLER and Judith Koller, Plaintiffs, v. Timothy HILDERBRAND, Dennis Gallego, Gary Hoffkins, and Roger Wachinicki, Defendants. |
| Court | U.S. District Court — District of Connecticut |
OPINION TEXT STARTS HERE
John R. Williams, Katrena K. Engstrom, John R. Williams and Associates, LLP, New Haven, CT, for Plaintiffs.
Valerie Maze Keeney, Town of Greenwich, Greenwich, CT, for Defendants.
RULING ON MOTIONS FOR SUMMARY JUDGMENT
Plaintiffs Judith and Edward Koller—mother and son—sue police officers Timothy Hilderbrand, Dennis Gallego, Gary Hoffkins, and Roger Wachnicki, for their involvement in a search of the Kollers' home that was conducted on May 15, 2007 pursuant to a valid search warrant. Plaintiffs claim that Defendants unreasonably destroyed Plaintiffs' property or failed to intervene as their fellow officers unreasonably destroyed their property during the course of the search. Officer Gallego, a criminal investigator for the Westchester County District Attorney (“Westchester DA”), moves [Doc. # 87] for summary judgment. Detectives Hilderbrand, Hoffkins, and Wachnicki, who are members of the Greenwich Police Department, file [Doc. # 91] a separate motion for summary judgment. For the reasons that follow, Officer Gallego's motion will be granted, and the Greenwich Defendants' motion will be granted in part and denied in part.
The following facts are culled from the Defendants' Local Rule 56(a)(1) Statements [Docs. # 89, 91–5], Plaintiffs' Local Rule 56(a)(2) Statements [Docs. # 93, 94], and all accompanying affidavits, declarations, and exhibits. SeeFed.R.Civ.P. 56(c)(1)(A). The core of the parties' dispute arises out of the May 15, 2007 search of Plaintiffs' home in Greenwich, Connecticut, a one family ranch-style house, with a finished basement and a detached garage. (Gallego's Loc. R. 56(a)(1) Stmt [Doc. # 89] ¶ 17.) Unless noted specifically by footnote, the following facts are undisputed.
The search, which took place in connection with a criminal investigation into an organized crime and gambling operation in Westchester County, New York, was conducted by law enforcement officers from the Westchester DA and the Harrison Police Department (collectively, the “Westchester officers”), as well as agents from the Drug Enforcement Agency (“DEA”). ( Id. ¶ 9.) Investigators had probable cause to search Mr. Koller's residence for evidence of the gambling operation. ( Id. ¶ 10.) As Mr. Koller's residence is located in Greenwich, Connecticut, a DEA agent contacted Detective Hilderbrand, of the Greenwich police department, to request assistance in obtaining the warrant. ( Id. ¶ 11.) Detective Hilderbrand prepared the warrant application with a supporting affidavit by Investigator Gallego. ( Id. ¶ 12.)
On May 15, 2007, Connecticut Superior Court Judge William Hickey signed a search and seizure warrant for the Koller residence, which authorized the seizure of the following evidence:
Any gambling apparatus, documents, any personal digital assistants, telephones, answering machines, cellular telephones, Simcards and cellular telephone chargers, and any and all cellular telephone billing/contract records, money wagered on illegal gambling, any and all cash, credit card bills, records of bets, records of monetary gambling balances, tabulations, handwritten notes, images or other documentation concerning gambling records and/or communications about gambling, ledger books and any record of payment to or from any bettor and sheet-holder, receipts for betting tickets including any computer generated betting ticket, any and all records reflecting the names, code numbers, telephone numbers and addresses of players (bettors), sheet holders (agents), runners, pickup men, bookmakers, comptrollers, master agents, Internet gambling websites and their employees. Any and all computers and thumb drives, floppy discs, compact discs and DVDS, containing any material related to gambling records. Any and all financial records which reflect the acquisition, possession, disbursement, distribution or location of proceeds of illegal gambling activity, any and all safe deposit keys or records of ownership or location of safe deposit boxes or private storage facilities, any and all safes and their contents, any and all personalty or other items evidencing ownership or connection to the subject premises or vehicles and or gambling proceeds or records, [ ] any and all photographs and videos depicting any two or more aforesaid individuals of the Green/Giovanniello illegal gambling enterprise together, and any contraband including trace evidence and paper shredders.
(
The search was conducted on May 15, 2007, the same day that the warrant was issued. ( Id. ¶ 8.) Law enforcement officers from the Greenwich Police Department, the Westchester DA's Office, the Harrison Police Department, and the DEA were present during the search.1 ( Id. ¶ 15.) The search began with the Greenwich officers conducting a security sweep.2 (Defs.' Loc. R. 56(a)(1) Stmt [Doc. # 91–5] ¶ 17.) Once the residence was secured, the Westchester officers assumed the primary responsibility of searching, as they were the officers familiar with the nature and details of the ongoing criminal investigation in Westchester County. ( Id. ¶ 18.) 3 Because of their knowledge of the gambling investigation, officers from the Harrison Police Department were the ones who physically conducted the manual search and identified items for seizure. ( Id. ¶ 20.) 4
Plaintiffs assert an array of property damage claims. Although the Court will discuss their itemized claims of property damage only as necessary in its discussion below, one item bears mentioning here: the safe. A large safe was located in the basement of the Koller residence ( Id. ¶ 30.), and, as the warrant authorized the search and seizure of “any and all safes and their contents,” the police sought access to it (Gallego's 56(a)(1) Stmt ¶ 14.). While Judith Koller had the combination to the safe, she was not present at the home during the search because her children told her to stay away while the search was ongoing. (Defs.' 56(a)(1) Stmt ¶¶ 31–32.) As such, when the officers were unable to gain access, the Greenwich Police Department contacted Champion Locksmith, which was able to breach the lock by using a precision drill. (Defs.' Local Rule 56(a)(1) Statement ¶¶ 33, 34.)
In total, the search lasted five hours and eighteen minutes, beginning at 5:22pm and ending at 10:40pm. ( Id. ¶ 18.) Mr. Koller did not observe any officers conducting the search or damaging property. ( Id. ¶ 26.) Nor did Edward Koller hear an officer giving instructions to damage or destroy property. ( Id. ¶ 27.) Similarly, Judith Koller, who was away from the premises throughout the duration of the search, did not observe any officer damaging property. (Defs.' 56(a)(1) Stmt ¶ 71.) There is a genuine dispute about the pre search state of the rooms in the Koller residence ( compare Marino Aff. ¶ 9 (), with Edward Koller Dep. at 35 ()), as well as the state of disrepair after the search ( compare Marino Aff. ¶ 10 (), with Edward Koller Dep. at 31 ()).
After the search, Plaintiffs did not file a civilian complaint of any kind with the Greenwich Police Department. (Defs.' 56(a)(1) Stmt ¶¶ 72, 74.) On May 31, 2007, pursuant to a court order, the Greenwich police turned over evidence obtained from the Koller residence to Westchester agents, including a passport, cell phone, and a gun. (
In 2009, Plaintiffs brought suit against Defendants in their individual capacities, claiming “substantial, unreasonable, and unnecessary damage” was done to their personal property and residence during the search. (Am. Compl. ¶ ¶ 4, 8.)
Gallego was not one of the officers who conducted the search of the home. (Gallego's 56(a)(1) Stmt ¶ 28.) While other officers searched the residence, Investigator Gallego was with Mr. Koller, with a few exceptions. ( Id. ¶ 25.) First, after hearing a noise upstairs, Mr. Koller asked Gallego to go check what was happening, and Gallego avers that, when he was upstairs, he did not damage any property nor observe property being damaged, only officers moving objects around in order to search behind or underneath them. ( Id. ¶ 30; Gallego Decl. [Doc. # 90] ¶ 10.) 5 Second, Gallego left Mr. Koller's presence to get some air outside and allow a different officer to question Mr. Koller, and Gallego avers that, while outside, he did not damage or observe any officer damaging the Kollers' property. (Gallego's 56(a)(1) Stmt ¶ 31; Gallego Decl. ¶ 11.) 6 Gallego also left Mr. Koller's presence to walk downstairs when the police were attempting to open the safe. (Gallego's 56(a)(1) Stmt ¶ 32.) Gallego has no knowledge that the Kollers' property was unreasonably or maliciously damaged or destroyed. ( Id. ¶ 33.) Plaintiffs assert that there was a fourth occasion: when Investigator Gallego left the residence with Mr. Koller's car keys to search his car
On May 15, 2007, Gallego and a DEA agent contacted Detective Hilderbrand for help in obtaining and executing the search warrant of the Koller residence. (Defs.' 56(a)(1) Stmt ¶¶ 2, 3.) Detective Hilderbrand prepared and submitted the search and seizure application that served as the basis for the warrant. ( Id. ¶ 4.) Detective Hilderbrand's role was to coordinate the warrant and its execution, and he did not supervise the execution of the search warrant. ( 7 Hilderbrand asserts that he did not manually search the...
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...damage caused during a lawful search is not per se unreasonable within the meaning of the Fourth Amendment.” Koller v. Hilderbrand, 933 F.Supp.2d 272, 278 (D.Conn.2013). “The reasonableness of the damage must be evaluated with reference to the target of the search,” such as a more invasive ......
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...courts applying Cody in this District have been reluctant to resolve the issue at the summary judgment stage. Koller v. Hilderbrand, 933 F.Supp.2d 272, 279–80 (D.Conn.2013) (“Plaintiffs claim numerous items of property damage that, in aggregate, raise a genuine factual question about whethe......
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Waller v. City of Middletown
...courts applying Cody in this District have been reluctant to resolve the issue at the summary judgment stage. Koller v. Hilderbrand, 933 F.Supp.2d 272, 279–80 (D.Conn.2013) (“Plaintiffs claim numerous items of property damage that, in aggregate, raise a genuine factual question about whethe......