Rodriquez v. Furtado, Civ. A. No. 87-1619-WF.

• Court: United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
• Writing for the Court: WOLF
• Citation: 771 F. Supp. 1245
• Parties: Shirley Mello RODRIQUEZ, Plaintiff, v. Joseph FURTADO, et al., Defendants.
• Docket Number: Civ. A. No. 87-1619-WF.
• Decision Date: 11 February 1991

771 F. Supp. 1245

Shirley Mello RODRIQUEZ, Plaintiff,
v.
Joseph FURTADO, et al., Defendants.

Civ. A. No. 87-1619-WF.

United States District Court, D. Massachusetts.

February 11, 1991.

771 F. Supp. 1246

Paul Patten, Somerset, Mass., for plaintiff.

Peter Knight, Morrison, Mahoney & Miller, Boston, Mass., Orlando deAbreu, Taunton, Mass., for defendants.

ORDER

WOLF, District Judge.

I. INTRODUCTION

This 42 U.S.C. § 1983 case arises out of a vaginal search of plaintiff Shirley Rodriquez on August 21, 1986. Defendants are Joseph Furtado, a detective in the Taunton Police Department who applied for and received a warrant for the body cavity search, David Westcoat, chief of the Taunton Police Department, the City of Taunton, Phillip Falkoff, M.D., who conducted the search, and Morton Hospital, Falkoff's employer. Plaintiff alleges that Furtado knew or should have known that his warrant affidavit did not establish probable cause and that the execution of the search by Furtado and Falkoff was clearly unreasonable and unconstitutional.

The Magistrate issued Reports and Recommendations on the motions for summary judgment of the police and medical defendants respectively, suggesting summary

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judgment was appropriate for all defendants on grounds of qualified immunity and failure to state a claim. Plaintiff has objected to virtually all of the magistrate's findings and conclusions and the matter is now before this court to be considered de novo.

Although this court's reasoning differs in some respects from the Magistrate's, the court concludes that defendants are entitled to summary judgment on all of plaintiff's claims under federal law. In addition, plaintiff's pendent state claims must now be dismissed without prejudice to being pursued in the Courts of the Commonwealth of Massachusetts.

II. RELEVANT FACTS

Except where otherwise noted, the following facts are not in dispute.

On August 20, 1986, defendant Joseph Furtado, at the time a 13-year veteran with the Taunton police force, applied for a warrant authorizing a vaginal body cavity search of plaintiff Shirley Mello Rodriquez. Furtado, a narcotics detective, was one of eight members of the Taunton Police Department who were permitted to seek drug search warrants without the approval of a supervising officer. Answers of the Defendant David Westcoat to the Plaintiff's First Set of Interrogatories at Nos. 6, 10 (# 25). This was the first time a Taunton police officer had applied for a warrant for a vaginal search. Id. at No. 18.

Furtado's three-page affidavit contained the following allegations:

— that the police department had received numerous calls through Crime Stoppers alleging that plaintiff and her husband were selling narcotics (dilaudids, cocaine, and heroin) out of their apartment, Affidavit in Support of Application for Search Warrant at ¶ 4 (Exhibit B to Amended Complaint (# 3));

— that Taunton police officers had periodically observed named "known drug users" entering plaintiff's apartment building and exiting a short time later, Id. at ¶¶ 4, 8;

— that on one occasion, Todd Guzman, a known drug user, was observed swallowing something when approached by police officers after exiting plaintiff's building, Id. at ¶ 4;

— that on one occasion, Paul Guzman, a known drug user, was observed making at least ten brief trips into plaintiff's apartment building in one evening, each time leaving a second individual waiting across the street in his automobile, Id.;

— that on one occasion, a Taunton police officer observed a fresh needle track on Paul Guzman's arm shortly after Guzman left plaintiff's apartment building, Id. at ¶ 5;

— that on one occasion, John Sekell, a known drug user, was arrested shortly after leaving plaintiff's building in possession of a glassine bag of marijuana, Id. at ¶ 8;

— that plaintiff was arrested on drug violations on March 1, 1977 and that plaintiff and her husband had been previously convicted for possession of narcotics, Id. at ¶¶ 9-11;

— that Taunton police officers had previously searched the residences of plaintiff and her husband on October 7, 1982, January 23, 1983, June 7, 1983, and June 14, 1986, seizing narcotics, drug paraphernalia and money on each occasion, Id. at ¶ 9;

— that plaintiff and her husband had been indicted on June 19, 1986 following the June 14, 1986 search and were awaiting trial, Id. at ¶ 10;

— that on June 17, 1986, affiant received a phone call from an unknown person stating that the police had not done well in the June 14, 1986 raid, that they had missed discovering Raul Rodriguez's "works" (needles and syringes) which were kept in the hallway near a window, and that plaintiff had dilaudids hidden in her vagina, Id. at ¶ 6;

— that following the June 14, 1986 raid, affiant contacted one of three confidential informants (the "CI") who had provided information leading to the search and that the CI stated that plaintiff and her husband were still dealing drugs, that they now required purchasers to take the drugs in their apartment and that plaintiff was

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hiding narcotics in her vagina, Id. at ¶¶ 7, 14

— that on August 20, 1986, the CI contacted affiant and stated that he had just left plaintiff's apartment, that plaintiff's husband had just come in with a large amount of "Black Flag" (heroin) which was being kept under the kitchen sink, that there might also be cocaine in the apartment, and that there was a strong possibility that plaintiff was holding some heroin in a rubber in her vagina, Id. at ¶ 12;

— that the CI also stated on August 20, 1986 that he believed plaintiff was hiding narcotics in her vagina because on one occasion, plaintiff had gone into the bathroom and returned with narcotics after the CI had paid for some drugs, because he had heard unidentified others talking about this practice of plaintiff, and because, Paul Guzman, who was "real close" to plaintiff, had told the CI that "she was holding the stuff up her" while pointing to the groin area, Id.

Plaintiff has generally denied all of the accusations contained in Furtado's affidavit and specifically denied that she was under indictment and awaiting trial on charges arising out of the June 14, 1983 search of her apartment. Plaintiff's Affidavit in Opposition to Defendants' Motion for Summary Judgment at 4-5 (#26). However, her complaint did not allege that the affidavit contained false statements, but only that it was insufficient on its face to justify issuance of a warrant.

On August 20, 1986, an assistant clerk of the Taunton District Court issued warrants authorizing a search of plaintiff's apartment and a body cavity (vagina) search of plaintiff for heroin or other controlled substances, to be conducted by a licensed physician at Morton Hospital. Search Warrant (Exhibit A to Amended Complaint). The parties disagree substantially on the character of the ensuing events.

Furtado avers that the search warrants for plaintiff's apartment and body cavity were issued at 1:05 a.m. on August 21, 1986. Affidavit of Joseph Furtado at ¶ 9 (#20). At 1:30 a.m., Furtado and several other officers, including Jane McManus, arrived at plaintiff's apartment. Id. at ¶ 10. Furtado knocked on the door and was told by plaintiff's daughter that Raul was in bed and that he should go away. Furtado knocked again and announced that he was a police officer. The daughter yelled "It's the cops" at least three times and Furtado announced his presence at least two more times. The officers then forced the door open. Id.

Furtado showed plaintiff the warrants and kept plaintiff and her family in the living room while a canine unit searched the apartment. According to Furtado, the dog did not sniff the individuals and did detect traces of narcotics in the bedroom. Id. Furtado and another officer then searched the bedroom and found a block of black material which looked like black heroin. The officers also allegedly found packaging material, handcuffs and tools, a bottle of powder used for cutting cocaine, and, in a light fixture in the hall, a needle and syringe. Id.

Furtado then allegedly informed plaintiff of the body cavity warrant. She responded by laughing and asking Furtado if he was going to execute the search himself. Id. at ¶ 11. Furtado told plaintiff the search would be executed by a doctor at Morton Hospital. He offered to let her go into the bathroom with Officer McManus and voluntarily remove anything hidden in her vagina, but plaintiff refused. Id. Furtado sent plaintiff to the hospital with McManus and continued searching her apartment until approximately 2:30 a.m. Id.

Rodriquez, to the contrary, stated that the police knocked and then immediately broke down the door when her daughter asked who was there. Pl. Aff. at 1. Before plaintiff could get out of bed, Furtado rushed in with a "look upon his face ... gleeful and lustful to the point of near irrationality." Id. He allegedly shoved the body cavity warrant in her face and told her she was going to Morton Hospital. Id. He demanded that she reach into her vagina and remove the "stuff," but she refused to do so. Id. at 2.

Furtado then herded plaintiff and her family into the living room for the duration

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of the two hour search. Each occupant was sniffed by the dog. Id. Neither the search nor the dog allegedly turned up any contraband. Id. at 2, 4-5

After the search was over, plaintiff's family members were moved into another room. Furtado informed plaintiff that she was not under arrest, but that she was going to be taken to the hospital. When she asked why, Furtado allegedly responded, "in a childishly playful voice, `Because I've got this little piece of paper, Shirley.'" Id.

Officer McManus, who had not accompanied Furtado and the other officers, according to plaintiff, then arrived at the apartment. Id. at 2-3. She took plaintiff to the hospital, expressing her shock and disgust at the proceedings and...