Delaney v. City of Albany

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

CLARENCE DELANEY, JR.,

Plaintiff,

v. 1:18-CV-1259 (NAM/ATB)

| ANTHONY DIGIUSEPPE,

and DANIEL SEEBER

Defendants.

APPEARANCES:

Clarence Delaney, Jr.

148 E. 48th St., Room 1427

New York, NY 10017

Plaintiff Pro Se

» The Rehfuss Law Firm, P.C.

Abigail W. Rehfuss, Esq.

Stephen J. Rehfuss, Esq.

40 British American Blvd.

Latham, NY 12110

Attorneys for Defendants

Hon. Norman A. Mordue, Senior District Court Judge:

MEMORANDUM-DECISION AND ORDER

,| L INTRODUCTION

Plaintiff pro se Clarence Delaney, Jr. (“Plaintiff”) brings this action under 42 U.S.C. §

1983 alleging claims for false arrest and unreasonable search arising out of an encounter with

Defendants DiGiuseppe and Seeber, who are Detectives in the Albany Police Department. (See

Dkt. Nos. 1, 18, 41). Currently before the Court is the Defendants’ motion for summary

judgment, (Dkt. No. 84), which Plaintiff has opposed, (Dkt. No. 88). For the reasons that

follow, the Defendants’ motion is granted.

Il. BACKGROUND

A. Procedural History

Plaintiff commenced this action on October 25, 2018, asserting at least four claims for

alleged violations of his constitutional rights by known and unknown individuals. (Dkt. No. 1).

After reviewing pursuant to 28 U.S.C. § 1915, the Court (Kahn, S.J.) dismissed all of Plaintiffs

claims except for false arrest/imprisonment and unreasonable search. (Dkt. Nos. 7, 8). Plaintiff

then amended the complaint, and the Court (Kahn, S.J.) found that Plaintiff had also raised a

claim for malicious prosecution, but the claims for excessive force and intentional infliction of

emotional distress remained dismissed. (Dkt. Nos. 18, 20). Plaintiff amended again,

identifying Detectives DiGiuseppe and Seeber as Defendants, with the same surviving claims.!

(Dkt. Nos. 40, 41).

B. Record Before the Court?

On April 16, 2016, the Albany Police Department received a report that a wallet and cell

phone were stolen from a vehicle parked outside 456 Madison Avenue. (Dkt. No. 84-10, p. 1).

One of the stolen credit cards was used later that evening to buy cigarettes and alcoholic

beverages at the Stewart’s Shop at 10 New Scotland Avenue. (/d.).

Albany police investigators, including Defendants, retrieved a copy of the security

| camera footage from the Stewart’s Shop and identified Plaintiff as the individual making the

fraudulent purchase based on their past arrests of Plaintiff and other interactions with him. (/d.,

{4 4-6). After identifying Plaintiff as a suspect, Defendants contacted him by phone to arrange

an in-person interview, but Plaintiff advised that he was no longer in New York State. (Dkt.

' The case was reassigned to the undersigned on July 30, 2020. (Dkt. No. 97).

The facts have been drawn from Defendants’ statement of material facts, (Dkt. No. 84-2), and

Plaintiff's complaints and response papers (Dkt. Nos. 1, 18, 41, 88).

No. 84-2, 9 8). Plaintiff eventually agreed to meet with Defendants at the Veteran Affairs

Medical Center (“VAMC”) in Leeds, Massachusetts. (/d., 9 10-12; see also Dkt. No. 41, p. 4).

On July 23, 2016, Defendants traveled to Leeds, Massachusetts and met with Plaintiff in

the parking lot of the VAMC. (Dkt. No. 84-2, J 13; see also Dkt. No. 84-10). Defendants

performed a “weapons pat down” on Plaintiff before interviewing him inside the patrol car.

(Dkt. No. 84-2, Jf 14-15). Defendants advised Plaintiff of his Miranda rights and informed

him that the interview was being recorded. (/d., J] 16-17). Defendants then questioned

Plaintiff about his involvement in purchasing cigarettes and alcoholic beverages at the Stewart’s

Shop on the night of April 16, 2016. (Dkt. No. 84-2, 4 18; see also Dkt. No. 84-10; Dkt. No.

84, Exhibit J). Defendants showed Plaintiff a series of photographs that they suggested showed

Plaintiff purchasing the items with a credit card stolen from a vehicle outside 456 Madison

Avenue earlier that evening. (Dkt. No. 84, § 18). Plaintiff denied using a stolen credit card and

stated that he could not say whether he was the person in the photographs. (Dkt. No. 84,

Exhibit J, at 16:00 through 20:00). Defendants then told Plaintiff to exit the vehicle and

informed him that they would “do this another way.” (Dkt. No. 84, Exhibit J, at 20:10 through

20:31). The interview lasted approximately 20 minutes. (Dkt. No. 84, Exhibit J).

Plaintiff claims that Defendants did not have any cause to search him for weapons prior

,,| to the interview on July 23, 2016. (Dkt. No. 41, p. 3). He also alleges that the Defendants

ordered him into their vehicle, interrogated him, and held him for 45 minutes. (/d., p. 4).

Plaintiff also alleges that he asked to leave and for an attorney, but Defendants refused him.

p. 5). Plaintiff claims that this encounter amounted to a wrongful arrest. (/d., p. 7; see also

Dkt. No. 88, p. 3).

On August 12, 2016, Plaintiff was arrested and charged in Albany County Court with

Criminal Possession of Stolen Property and Identity Theft for his alleged role in using the stolen

credit card on April 16, 2016. (See Dkt. Nos. 84-2, § 26; 84-10; 84-15). In January 2017,

Plaintiff pled guilty to one count of Criminal Possession of Stolen Property in violation of

Section 165.45 of the New York Penal Law, in satisfaction of these charges and others from an

earlier arrest for grand larceny in August 2015. (Dkt. No. 84-15; see also Dkt. Nos. 84-2, § 28).

Il. STANDARD OF REVIEW

Under Federal Rule of Civil Procedure 56(a), summary judgment may be granted only if

all the submissions, taken together, “show that there is no genuine issue as to any material fact

and that the moving party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett,

477 U.S. 317, 322 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48

(1986). The moving party bears the initial burden of demonstrating “the absence of a genuine

issue of material fact.” Celotex, 477 U.S. at 323. A fact is “material” if it “might affect the

Outcome of the suit under the governing law,” and is genuinely in dispute “if the evidence is

such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S.

at 248; see also Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005) (citing

Anderson).

If the moving party meets this burden, the nonmoving party must “set out specific facts

showing a genuine issue for trial.” Anderson, 477 U.S. at 248, 250; see also Celotex, 477 US.

| at 323-24; Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). Further, “[w]hen no rational

jury could find in favor of the nonmoving party because the evidence to support its case is so

slight, there is no genuine issue of material fact and the grant of summary judgment 1s proper.”

Gallo v. Prudential Residential Servs., Ltd. P’ship, 22 F.3d 1219, 1224 (2d Cir. 1994) (citing

Dister v. Continental Grp., Inc., 859 F.2d 1108, 1114 (2d Cir. 1988)). “When ruling on a

summary judgment motion, the district court must construe the facts in the light most favorable

to the nonmoving party and must resolve all ambiguities and draw all reasonable inferences

against the movant.” Dallas Aerospace, Inc. vy. CIS Air Corp., 352 F.3d 775, 780 (2d Cir.

2003). “Conclusory allegations or denials are ordinarily not sufficient to defeat a motion for

summary judgment when the moving party has set out a documentary case.” Scott v. Coughlin,

344 F.3d 282, 287 (2d Cir. 2003). To that end, “sworn statements are more than mere

conclusory allegations subject to disregard [ ]; they are specific and detailed allegations of fact,

made under penalty of perjury, and should be treated as evidence in deciding a summary

judgment motion.” /d. at 289 (citing Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983)).

Further, where a plaintiff proceeds pro se, the Court must read his submissions liberally

and interpret them “to raise the strongest arguments that they suggest.” McPherson v. Coombe,

174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).

Nevertheless, a pro se party’s “bald assertion, completely unsupported by evidence, is not

sufficient to overcome a motion for summary judgment.” Jordan v. Fischer, 773 F. Supp. 2d

255, 268 (N.D.N.Y. 2011) (citations and internal quotations omitted).

IV. DISCUSSION

Liberally construed, Plaintiff's Second Amended Complaint alleges that the Defendants

subjected him to an unreasonable search and then falsely arrested/imprisoned him for

approximately forty-minutes during the July 23, 2016 encounter in Leeds, Massachusetts. (Dkt.

No. 41). The Court will address each claim in turn.

A. False Arrest

Defendants argue that Plaintiff's false arrest claim fails because Plaintiff consented to

the interview and they had probable cause to believe that Plaintiff had committed a crime.

(Dkt. No. 84-1, pp. 5-9). In response, Plaintiff states that he “never consented to be

interviewed/interrogated by the Defendants in the patrol car,” and that “Defendants didn’t have

probable cause to act the way they did or treat the Plaintiff in the way they did.” (Dkt. No. 88,

p. 3).

1. Applicable Law

In general, to prevail on a claim for false arrest, plaintiff must show a seizure under the

Fourth Amendment and that: “(1) the defendant intended to confine him, (2) the plaintiff was

conscious of the confinement, (3) the plaintiff did not consent to the confinement[,] and (4) the

confinement was not otherwise privileged.” Ackerson v. City of White Plains, 702 F.3d 15, 19

(2d Cir. 2012) (quoting Broughton v. State of New York, 37 N.Y.2d 451, 456 (1975)). Thus,

the plaintiff must first show that he was subject to a seizure by a government official, i.e. a

custodial situation. The Second Circuit has explained that “[t]he test for determining custody

is an objective inquiry that asks (1) ‘whether a reasonable person would have thought he was

free to leave the police encounter at issue’ and (2) whether ‘a reasonable person would have

understood his freedom of action to have been curtailed to a degree associated with formal

arrest.’” United States v. Faux, 828 F.3d 130, 135 (2d Cir. 2016) (quoting United States v.

Newton, 369 F.3d 659, 672 (2d Cir. 2004)). “Although both elements are required, the second

is the ‘ultimate inquiry’ because a ‘free-to-leave inquiry reveals only whether the person

questioned was seized.’” Jd. (quoting Newton, 369 F.3d at 672). In evaluating this second

element, courts consider the circumstances of the police encounter, including, inter alia, “the

interrogation’s duration; its location (e.g., at the suspect’s home, in public, in a police station,

or at the border); whether the suspect volunteered for the interview; whether the officers used

restraints; whether weapons were present and especially whether they were drawn; [and]

whether officers told the suspect he was free to leave or under suspicion.” United States v.

FNU LNU, 653 F.3d 144, 153 (2d Cir. 2011) (citing Yarborough v. Alvarado, 541 US. 652,

661-63 (2004)).

Further, assuming there is a seizure, a defendant sued for false arrest may avoid liability

if he had probable cause to arrest or is protected by qualified immunity. See Simpson v. City of

New York, 793 F.3d 259, 265 (2d Cir. 2015); see also Jenkins v. City of New York, 478 F.3d 76,

84 (2d Cir. 2007) (“The existence of probable cause to arrest constitutes justification and is a

complete defense to an action for false arrest, whether that action is brought under state law or

z| under § 1983”). A police officer “has probable cause to arrest when he or she has 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.” Garcia v. Does, 779 F.3d 84, 92 (2d Cir. 2015). In the context of

summary judgment, “where there is no dispute as to what facts were relied on to demonstrate

probable cause, the existence of probable cause is a question of law for the court.” Walczyk v.

Rio, 496 F. 3d 139, 157 (2d Cir. 2007) (citation omitted).

2. Arguments

Defendants assert that “Plaintiff's consent to be interviewed by the Defendants defeats

his false arrest claim.” (Dkt. No. 84-1, pp. 5-7). Specifically, Defendants claim that “when

they arrived at the VAMC on July 23, 2016, “the Plaintiff agreed to speak with the Defendants

in their vehicle in the parking lot of the facility, and agreed to allow the Defendants to perform

2 pat down weapons search of him prior to him entering the vehicle.” (/d., p. 6). Defendants

add that “[e]ven assuming that Plaintiff’s consent never existed or was revoked at some point

during the interview, his confinement was nevertheless privileged” because Defendants

“possessed probable cause, and at a minimum reasonable suspicion, to believe that the Plaintiff

committed a crime based on [their] positive identification of the Plaintiff as the perpetrator in

the Stewart’s surveillance footage as well as Plaintiffs lengthy criminal history involving

theft.” Ud., pp. 7-8).

In response, Plaintiff asserts that he “felt like he was obligated by show of authority by

the Defendants when he was told to get into the police patrol car and that he had no other

choice.” (Dkt. No. 88, p. 3). Plaintiff claims that when he agreed to meet with Defendants, he

“expected that they would speak outside, but as soon as the Defendants . . . pulled up in front of

the VAMC, they both got out of the car, guns at the waste [sic], in an intimidation [sic] fashion

z| and order me to place my hands on top of my head while they frisked me and pat me down, then

ordered me in the car for at least forty-five minutes (45) interrogating me... .” (Dkt. No. 41, p.

4). Plaintiff further alleges that he “asked a couple times for a lawyer and to be release[d] out

[of] the car, but was ignored until I was finally let out the car and [Defendants] threaten[ed] that

‘T will get you.’” (d., p. 5). Plaintiff claims that he “felt very traumatized by this event,” and

that Defendants “didn’t have any jurisdiction or right and authority to treat or act against the

Plaintiff the way they did.” (/d.).

3. Analysis

Plaintiff's false arrest claim hinges on two key issues: (1) whether Plaintiff consented to

being interviewed in the patrol car on July 23, 2016; and (2) whether there was probable cause

to arrest him at that time.

As to consent, the undisputed facts show that Plaintiff volunteered to meet with

Defendants on July 23, 2016. Defendants have provided the Court with an audio recording of

the interview that took place inside the patrol car on that day. (See Dkt. No. 84-3, Exhibit J).

The recorded conversation contrasts sharply with Plaintiff's alleged version of events.

Defendants issued Plaintiff Miranda warnings and then questioned Plaintiff about his alleged

use of a stolen credit card in April 2016. (/d., at 01:05). Defendants then showed Plaintiff a

series of photographs that Defendants claimed showed Plaintiff purchasing cigarettes and

alcoholic beverages with the stolen card. (/d., at 02:45). Plaintiff denied any involvement in

illegally purchasing the items and told Defendants that he could not tell whether he was the

individual in the photographs. (/d., at 04:05 through 09:48). Defendants urged him to

acknowledge that he used the stolen card, but Plaintiff told Defendants that he “cannot identify”

what is shown in the photographs. (/d., at 09:48 through 13:45). Defendants continued to

pressure Plaintiff to acknowledge that it was him in the photographs, but Plaintiff refused to say

whether it was him and flatly denied ever stealing or using a stolen credit card. (/d., at 13:45

through 20:00). Defendants then told Plaintiff to exit the vehicle and informed him to “watch

what happens next” and that they would “take care of this another route.” (/d., at 20:00 through

20:31).

Plaintiff asserts that he “expected that they would speak outside,” but when Defendants

arrived at the meeting location, Defendants frisked and intimidated him, ordered him to get into

the patrol vehicle, and interrogated him for forty-five minutes, and refused his requests for an

attorney and to exit the vehicle. (Dkt. No. 41, p. 4). This account 1s belied by the audio

recording in several respects; the recording shows that the interview only lasted 20 minutes and

Plaintiff never asked for an attorney and never asked to exit the vehicle. (See Dkt. No. 84-3,

Exhibit J). Nonetheless, based on the accusatory questioning by the Defendants, which clearly

suggested that Plaintiff had stolen the wallet and cellphone, the Court finds that a reasonable

Person in Plaintiffs position could have concluded that he was under arrest. In other words,

even assuming Plaintiff consented to the interview, there is an issue of fact as to whether

Defendants exceeded the scope of consent and transformed the situation into a constructive

arrest.

Next, the Court turns to the issue of probable cause. The record shows that Defendants

were investigating a theft from April 2016 and they had security camera video showing a person

who looked like Plaintiff use the stolen credit card to purchase cigarettes and alcoholic

beverages on April 16, 2016. (See Dkt. No. 84-13). Defendants were able to identify Plaintiff

based on their previous interactions with him in Albany. (See Dkt. No. 84-16, 9§ 5-7).

Although Defendant denied using the stolen credit card, Defendants’ investigation matched the

number of the stolen credit card to the card used by Plaintiff in the transaction at the Stewart’s

Shop. (Dkt. No. 84-3, Exhibit J, at 16:28 through 17:30). Taken together, these undisputed

z| facts show that Defendants had sufficiently trustworthy and credible evidence to believe that

Defendant had committed the crime of Criminal Possession of Stolen Property in violation of

Section 165.45 of the New York Penal Law.

Thus, the Court concludes as a matter of law that Defendants had probable cause to

arrest Defendant, and his false arrest claim must be dismissed.? See Gil v. County of Suffolk,

590 F. Supp. 2d 360, 366-69 (E.D.N.Y. 2008) (dismissing the plaintiff's Section 1983 claim for

false arrest where the investigatory detention was privileged by probable cause that plaintiff had

committed a crime); Hernandez v. City of Rochester, 260 F. Supp. 2d 599, 605-12 (W.D.N.Y.

2003) (same).

B. Unreasonable Search

Next, Defendants argue that Plaintiff's unreasonable search claim must be dismissed

because they had “reasonable suspicion that Plaintiff had committed a crime, render[ing] the

Weapons pat down search constitutional.” (Dkt. No. 84-1, pp. 9-10). In response, Plaintiff

contends that he “never consented to the pat down as stated by the defense,” and that

Defendants “did not have probable cause to act the way they did.” (Dkt. No. 88, p. 3).

The Court’s finding of probable cause is also fatal to any malicious prosecution claim. See Walston v.

City of New York, 289 F. Supp. 3d 398, 410-11 (E.D.N.Y. 2018) (dismissing a malicious prosecution

claim because the defendant had probable cause at the time of the arrest).

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1. Applicable Law

“Before [an officer] places a hand on the person of a citizen in search of anything, he

must have constitutionally adequate, reasonable grounds for doing so.” Sibron v. New York,

392 U.S. 40, 64 (1968). Warrantless searches are per se unreasonable, unless they fall within

one of a limited number of exceptions. Thompson v. Louisiana, 469 U.S. 17, 19-20 (1985)

(quoting Katz v. United States, 389 U.S. 347, 357 (1967)). “[T]he Fourth Amendment sanctions

a warrantless investigatory stop (temporary detention) and frisk (pat-down for weapons) under

two conditions: (1) the police officer reasonably suspects that the person apprehended is

committing or has committed a criminal offense; and (2) the police officer reasonably suspects

that the person stopped is armed and dangerous.” Evans v. Solomon, 681 F. Supp. 2d 233, 247

(E.D.N.Y. 2010) (citing Terry v. Ohio, 392 U.S. 1, 21 (1968)). “The purpose of this limited

search is not to discover evidence of crime, but to allow the officer to pursue his investigation

without fear of violence.” Adams v. Williams, 407 U.S. 143, 146 (1972).

2. Arguments

Defendants assert that their pat-down of Plaintiff prior to the interview was “justified in

the interest of officer safety due to the close proximity of the parties in the vehicle and the

Plaintiffs lengthy criminal history, which includes unlawful weapons possession.” (Dkt. No.

84-1, pp. 9-10). Defendants further contend that “at the time of the pat down search, [they]

possessed probable cause and at a minimum reasonable suspicion, to believe that the plaintiff

had committed the crime of larceny.” (/d., p. 10). In response, Plaintiff disputes Defendants’

claim that his criminal history includes grand larceny and robbery. (Dkt. No. 88, p. 1). Plaintiff

claims that he “has never been convicted of these charges and furthermore the Plaintiff has no

violent crime convictions in his criminal history that would have given them grounds or the

11

excuse to patdown or search [him]... .” (/d., p. 2). Plaintiff maintains that he “never

consented to the patdown as stated by the defense.” (/d.).

3. Analysis

As relevant here, police officers conducting an investigatory stop may perform an

accompanying pat-down search for weapons where there is “a reasonable basis to think ‘that the

person stopped is armed and dangerous.’” United States v. Bailey, 743 F.3d 322, 332 (2d Cir.

2014) (quoting Arizona v. Johnson, 555 U.S. 323, 326-27 (2009)). A reasonable basis

“demands ‘specific and articulable facts which, taken together with rational inferences from

those facts,’ [that] provide detaining officers with a ‘particularized and objective basis for

suspecting wrongdoing[.]” /d. (citations omitted). Importantly, a reasonable basis “is less than

probable cause, requiring only facts sufficient to give rise to a reasonable suspicion that

criminal activity ‘may be afoot’ and that the person stopped ‘may be armed and presently

dangerous.’” /d. (citing Terry, 392 U.S. at 30)) (emphasis in original). “The officer need not be

absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in

the circumstances would be warranted in the belief that his safety or that of others was in

danger.” Terry, 392 U.S. at 27.

Notably, the Second Circuit has recognized that “the dangers posed to police officers in

situations where a suspect, who may be armed, is placed in the rear of a police car are

substantially different and greater than those posed in the typical Terry stop” because “the

officers are less able to protect themselves from the possibility of violence.” See United States

v. McCargo, 464 F.3d 192, 200-01 (2d Cir. 2006). Thus, “a limited frisk for weapons before

placing a suspect in a police car, pursuant to an established policy, reflects an appropriate

balancing of the interests at stake.” /d. at 201.

12

Here, Plaintiffs unreasonable search claim rests on the allegation that Defendants

frisked him without any justification before he got into their vehicle. (See generally Dkt. Nos.

41, 88). However, the Court finds that the undisputed facts show that Defendants had

reasonable suspicion to believe that Plaintiff might have been armed and dangerous. Among

other things, Defendants believed that Plaintiff had a violent criminal history that included

'z| charges for weapons possession and resisting arrest. (Dkt. No. 84-2, § 15). Defendants also had

probable cause to arrest Plaintiff for Criminal Possession of Stolen Property, as discussed

above. And since they intended to interview him in the police vehicle, Defendants were less

able to protect themselves from the possibility of violence.

On these facts, the Court concludes as a matter of law that it was reasonable for

Defendants to perform a limited frisk for weapons before Plaintiff got into their vehicle. See

McCargo, 464 F.3d at 200-01; see also Sanders v. Coughlin, No. 11-CV-441S, 2017 WL

1196409, at *4-5, 2017 U.S. Dist. LEXIS 49227, at *9-12 (W.D.N.Y. Mar. 31, 2017) (granting

summary judgment on the plaintiffs unreasonable search claim where the investigating officers

had reasonable suspicion to believe the plaintiff may have been armed and the search “was

limited to only that necessary to determine whether Plaintiff posed a threat of harm to himself or

others”). Moreover, the search was also reasonable because the Defendants had probable cause

,,| to arrest Plaintiff before the interview began, meaning that they could have performed a search

incident to arrest. See Evans, 681 F. Supp. 2d at 248-51 (dismissing the plaintiff's

unreasonable search claim and noting that “a lawful custodial arrest permits a police officer to

search the arrestee’s person” before a formal arrest if the officer had probable cause at the time

of the search). Accordingly, Defendants are entitled to summary judgment on Plaintiffs

unreasonable search claim.

13

Vv. CONCLUSION

For these reasons, it is

ORDERED that Defendants’ motion for summary judgment (Dkt. No. 84) is

GRANTED, and it is further

ORDERED that Plaintiff’'s Second Amended Complaint (Dkt. No. 41) is DISMISSED

z| with prejudice; and it is further

ORDERED that the Clerk of the Court is directed to close this case and provide a copy

of this Memorandum-Decision and Order to the parties in accordance with the Local Rules of

the Northern District of New York.

IT IS SO ORDERED.

Date: September 4, 2020

Syracuse, New York

Senior U.S. District Judge

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