Smith v. The Village of Brockport

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

__________________________________________

JEREMY J. SMITH,

Plaintiff

DECISION AND ORDER

-vs-

19-CV-6404 CJS

THE VILLAGE OF BROCKPORT,

ZACHARY WAKEFIELD, CHRISTOPHER

CLAWSON and KELLY McCRACKEN, each

in his or her official and individual capacity,

Defendants

__________________________________________

INTRODUCTION

Plaintiff commenced this action asserting state-law claims, for false arrest, false

imprisonment, assault, battery, intentional and negligent infliction of emotional distress,

and negligent hiring, retention and supervision, and federal claims under 42 U.S.C. §

1983, for violations of his rights under the Fourth, Fifth and Fourteenth Amendments to

the U.S. Constitution, arising from what he maintained was an illegal seizure and search

of his person during a narcotics investigation following a traffic stop of a vehicle in which

he was a passenger. The Court granted summary judgment to Defendants on all claims

except portions of the First, Second, Third, and Seventh Causes of action, that turn upon

whether Plaintiff was illegally seized prior to the search, when he was handcuffed and

placed in a patrol car by a non-party police officer for approximately thirty minutes, and,

if so, whether Defendants unreasonably failed to intervene. Now before the Court is

Defendants’ motion for summary judgment on the remaining claims, ECF No. 29. For

reasons discussed below the application is granted.

BACKGROUND

The reader is presumed to be familiar with the Court’s prior Decision and Order in

this action, ECF No. 28. Briefly, this action arises from a traffic stop that occurred on the

bitterly-cold night of December 29, 2017, at 10:40 p.m., near the State University of New

York at Brockport (“SUNY”). More specifically, the traffic stop took place near the

intersection of Redman Road and New Campus Drive, which is a rural section of road on

the outskirts of the SUNY campus and remote from any campus buildings or residences.1

At that time, non-defendant SUNY Police Officer Petritz (“Petritz”) stopped a

Mercedes sedan for speeding, after he observed it traveling 55 miles per hour in a 40-

mile-per-hour zone.2 The sedan had four occupants: The driver, Dyshieka McFadden

(“Dyshieka”); the front seat passenger, Dyshieka’s brother, Nazier McFadden (“Nazier”);

and the two backseat passengers, Jordan Holland (“Holland”) and Plaintiff, Jeremy Smith

(“Plaintiff” or “Smith”).

Upon walking up to the stopped Mercedes, Officer Petritz observed that the four

men were moving around inside the vehicle.3 Additionally, upon initially speaking to

Dyshieka, Petritz perceived a strong odor of burned marijuana, and remarked that “the

car smelled like weed.”4 In response to Petritz’s requests, Dyshieka was unable to

produce a driver’s license, other identification, or vehicle registration.5

Petritz placed a radio call for additional police assistance, and three officers from

the Village of Brockport Police Department, namely, defendant Officers Clawson,

1 ECF No. 23-12 at p. 10.

2 ECF No. 23-12 at p. 10.

3 See, Body-worn camera footage.

4 50-h Hearing, ECF No. 23-5 at p. 19.

5 50-h Hearing, ECF No. 23-5 at pp. 19–20.

McCracken and Wakefield, arrived at the scene in separate patrol cars. Clawson,

McCracken, and Wakefield each wore body cameras which were filming during the

interaction. The body camera footage is part of the record, and the Cout relies heavily on

it in setting forth the facts below.

When Clawson, McCracken and Wakefield arrived at the scene as backup, Petritz

informed them that he had stopped the Mercedes for speeding, that the vehicle also had

improperly tinted windows, and that the interior of the car smelled strongly of burnt

marijuana.6 The officers then began removing the four occupants from the vehicle,

beginning with the driver, Dyshieka.

Petritz removed Dyshieka from the car and patted him down, while again

commenting that the car smelled strongly of marijuana. Petritz asked Dyshieka why he

and his passengers had been reaching around in the vehicle after it was stopped, and

Dyshieka responded that they had been looking for his “vehicle registration book” which

he claimed was “in the back seat somewhere.”7 However, no such registration or book

was ever found by the officers during a subsequent search of the car. Petritz then stated

that he had seen marijuana blunts in the vehicle’s ashtray and asked if the men had been

smoking marijuana, which Dyshieka admitted was true, though he indicated that it had

been “way earlier” in the day. Dyshieka also admitted that he was on probation. Petritz

then insisted that Dyshieka smelled very strongly of marijuana, as if he had “just smoked”

a few minutes earlier, and Dyshieka admitted that he had “just smoked.” Petritz’s pat-

down of Dyshieka discovered a large amount of cash ($6,300) in small bills. When Petritz

asked Dyshieka why he was carrying that much money, Dyshieka asserted that he

6 See, e.g., ECF No. 23-12 at p. 11 (“Petritz detected an overpowering smell of burnt marijuana.”).

7 Wakefield body-worn camera footage.

worked delivering newspapers and had just received his Christmas bonus. Petritz then

handcuffed Dyshieka and placed him in a patrol car.8

Wakefield then removed Holland from the car and patted him down. Holland asked

why he was being frisked, and Wakefield stated it was because “there was weed in the

car.”9 Wakefield asked Holland what he and the others were doing and to where they

were headed, to which Holland vaguely responded that they were dropping someone off,

although he did not know where. Wakefield then asked Holland whether there was

marijuana in the car, and Holland insisted that he knew nothing about marijuana, and

further denied that the car smelled of marijuana, even though Dyshieka had already

admitted to Petritz that the men had been smoking marijuana just prior to the traffic stop.

However, Wakefield’s frisk of Holland found no contraband, and Wakefield consequently

placed Holland, unhandcuffed, into the back of his patrol car. Wakefield then got into the

patrol car and ran a computer records check on Holland.

While Wakefield was thus occupied with Holland, Petritz, Clawson, and

McCracken began to search the remaining two occupants of the Mercedes, Nazier and

Plaintiff. In that regard, Petritz took Plaintiff on one side of a patrol car, while McCracken

took Nazier on the other side of the same patrol car, and Clawson stood at the front of

the vehicle with a flashlight, in the role of “cover officer”10 In that role, Clawson alternated

shining his flashlight between the two individuals being searched.

As can be seen from Clawson’s body camera footage, Petritz performed the pat-

down of Plaintiff and removed numerous items from Plaintiff’s pockets, which he placed

8 Wakefield body-worn camera footage.

9 Body-worn camera footage.

10 Clawson Deposition at p. 26.

on the hood of the patrol car. One such item was a “dime bag” containing marijuana

residue.11 However, Petritz, who collected all the evidence at the scene, did not

announce to Clawson or McCracken what he had found during the search.

Meanwhile, McCracken found approximately $800 in Nazier’s pocket, which

prompted Clawson to begin asking Nazier why he was carrying that much cash.

Upon completing his frisk of Plaintiff, Petritz stated to him, “Right now you’re just

being detained,” whereupon he started to place Plaintiff in handcuffs.

Simultaneously with this, Clawson began searching Nazier, while held Nazier’s

arm. Clawson observed that Nazier “reeked of weed,” and Nazier agreed that he was

carrying marijuana. Nazier stated that he had a “dime” in his coat pocket, and that he

had been preparing to smoke a blunt just prior to the traffic stop. As this exchange was

occurring, it can be seen in the background of Clawson’s body camera footage that

Plaintiff and Petritz are still standing at the hood of the patrol car, where Petritz had been

frisking Plaintiff. Shortly thereafter, Petritz, who is off camera, can be heard asking

Clawson whether he can place Plaintiff in the back of Clawson’s patrol car, to which

Clawson responds in the affirmative while continuing to search Nazier.

As Clawson began to search Nazier’s coat pockets, McCracken, who was holding

Nazier’s arm, commented to Clawson that Nazier was trying to pull away from her, and

that she suspected that he might have even more contraband on his body than he was

admitting.

11 As Plaintiff is being searched by Petritz he can be heard on Clawson’s body camera referring to a

“dime bag,” and later, during second search of Plaintiff’s body, he acknowledged to Clawson that he had

an empty dime bag containing marijuana residue. At that same time, Petritz commented that Plaintiff

could possibly be charged related to the marijuana residue. See, prior Decision and Order, ECF No. 28 at

p. 7 (“During the search of his clothing Plaintiff admitted that he had an empty “dime bag” of marijuana in

his pocket. Officer Petritz commented that the bag contained marijuana “residue” for which Plaintiff might

be charged, and Plaintiff expressed doubt that he could be charged merely for having residue.”).

At about this time, Wakefield, who had been working inside his patrol car the entire

time that Plaintiff was being searched by Petritz, passed by the other officers on his way

to search the interior of the Mercedes. Wakefield then conducted a detailed search of the

Mercedes that lasted approximately fifteen minutes.

Meanwhile, Clawson searched but found no marijuana in Nazier’s coat, contrary

to Nazier’s assertion that the marijuana was located there. Nazier then stated that the

marijuana was actually in his shoe. However, Clawson searched Nazier’s shoes and

again found nothing. Clawson then announced that he was going to conduct a full search

of Nazier’s person, at which point Nazier admitted that he had marijuana hidden in his

underwear. Clawson then retrieved 21.5 grams of marijuana, wrapped in thirteen

separate plastic bags, from inside Nazier’s underpants. Clawson remarked that, based

on the amount of cash and marijuana Nazier was carrying, he must be a dealer, but Nazier

denied it, insisting that he smoked a lot of marijuana and had just purchased his supplier’s

entire stock. When asked who his supplier was, Nazier stated that he bought the

marijuana from “a white kid named Sam.” When asked where the purchase took place,

Nazier indicated that he would not say unless his handcuffs were removed.

After finding the marijuana in Nazier’s underwear, the officers decided to re-frisk

the other three occupants of the Mercedes in a more-thorough fashion, on the theory that

they also might have drugs concealed in their underwear. The officers then conducted

repeat searches of Dyshieka, Holland and Plaintiff, starting with Dyshieka.

Clawson first asked Dyshieka if he had drugs concealed on him, which Dyshieka

denied. Dyshieka further indicated that he would not possess drugs since he was on

probation, and, further, that he had been unaware that his brother was carrying marijuana.

Clawson told Dyshieka that despite what Dyshieka was telling him, the story was “not

adding up.” However, Dyshieka insisted that the cash he possessed was from his job

delivering newspapers and that he did not have any narcotics on his body. However,

upon shining a light into Dyshieka’s underwear, Clawson spotted a bag containing what

appeared to be crack cocaine. Dyshieka nevertheless insisted that he was not involved

with drugs and had no idea how how the cocaine came to be located in his pants.

The officers then re-searched Holland and Plaintiff more thoroughly, but found no

no contraband. Wakefield also found no additional contraband inside the Mercedes.

The officers eventually charged Dyshieka and Nazier, related to their possession

of cocaine and marijuana, respectively, but released Plaintiff and Holland. 12 The time-

stamped body camera footage indicates that Plaintiff was handcuffed in the patrol car for

approximately thirty minutes before being released.13

Plaintiff commenced a civil action against Defendants in New York State Supreme

Court, Monroe County. On May 31, 2019, Defendants removed the action to this Court.

On September 30, 2019, Plaintiff filed the operative Amended Complaint, ECF No. 11,

purporting to assert tort claims under New York State Law as well as claims under 42

U.S.C. § 1983 (“Section 1983”). More specifically, the Amended Complaint asserted the

following seven claims: 1) state law cause of action for false arrest and false

imprisonment; 2) state law cause of action for assault; 3) state law cause of action for

battery; 4) state law cause of action for intentional infliction of emotional distress (“IIED”);

12 50-h Hearing, ECF No. 23-5 at p. 30. After searching the car once and the men twice, the officers also

called in a K-9 drug-sniffing dog, but, again, no contraband was found in the car. Pl. Deposition, ECF No.

23-5 at pp. 37–38 (K-9 dog).

13 Also, at his deposition, Plaintiff testified that he was handcuffed in the patrol car for “thirty to forty

minutes maybe.” Pl. Deposition at p. 30. Plaintiff later indicated that he was actually handcuffed for

almost an hour, see, id. at p. 41, but that testimony is refuted by the body camera footage.

5) state law cause of action for negligent infliction of emotional distress (“NIED”); 6) state

law cause of action for negligent hiring, retention, training or supervision; and 7) Section

1983 cause of action for violation of Plaintiff’s federal rights under the Fourth, Fifth and

Fourteenth Amendments to the U.S. Constitution. Plaintiff did not sue Petritz, nor did he

expressly assert any claim against Defendants for failing to intervene in any

unconstitutional conduct by Petritz.

On September 30, 2020, Defendants filed a Motion for Summary Judgment (ECF

No. 23) as to all claims. On February 28, 2022, the Court issued a Decision and Order

(ECF No. 28) granting summary judgment for Defendants on most of Plaintiff’s claims. In

that regard, the Court found, inter alia, that probable cause had been established as to

Plaintiff during the course of the traffic stop, stating:

[T]he Court finds that the facts known to Defendants objectively established

probable cause to believe that Plaintiff was involved in the possession

and/or sale of narcotics and that evidence of such criminal activity was

hidden on his body. In particular, the following facts were known to the

officers: Plaintiff and the other three occupants of the Mercedes were

traveling together in a relatively small sedan; the four occupants were long-

time associates, who had known each other since middle school; after the

sedan was stopped for speeding the men began moving around

suspiciously in the vehicle, and when asked why they had been doing so,

Dyshieka offered an explanation that was later shown to be untrue; the

occupants offered only a vague explanation for where they were going; the

automobile and the occupants reeked of marijuana smoke; there were

smoked marijuana blunts in the ashtray located in the console between the

two front seats; Dyshieka admitted having “just smoked” marijuana, despite

being on probation; Nazier admitted that he had been preparing to smoke

a blunt when the car was pulled over for speeding; despite the obvious signs

of marijuana having been recently smoked in the car, the supply of such

marijuana was not found in the car itself; despite the obvious evidence of

marijuana having just been smoked in the sedan, Holland implausibly

denied either that he knew anything about marijuana or that the car smelled

of marijuana; Dyshieka was carrying over six thousand dollars in cash and

implausibly indicated that the money was a Christmas bonus from his job

delivering newspapers; Nazier was carrying eight hundred dollars in cash

and had twenty-three bags of marijuana concealed in his underwear, and

when asked why, indicated implausibly that he had just purchased his drug

supplier’s entire stock of marijuana for his own use; Dyshieka had crack

cocaine concealed in his underwear and claimed he had no idea how it got

there; and when asked about Dyshieka and Nazier, Plaintiff denied that they

sold drugs and implausibly explained that they were carry large sums of

money because they did not use banks and were “stingy” in that they saved

all the money they earned.

Here, . . . the quantity of drugs and cash in the car, along with other facts

just enumerated, made it reasonable for Defendants to infer a common

enterprise, namely, drug dealing, among the four men.

Decision and Order, ECF No. 28 at pp. 35-36. The Court therefore found that the full

search of Plaintiff’s body, including the “reach in” search of Plaintiff’s underwear, was

reasonable under the Fourth Amendment.

However, the Court declined to grant summary judgment as to those portions of

the First, Second, Third and Seventh Causes of Action that were based on Petritz’s

seizure of Plaintiff prior to the search, referring to the period of time during which Plaintiff

was handcuffed in the patrol car before probable cause was developed.

Notably, the Court declined to grant summary judgment as to those claims not

because it found Plaintiff had raised a triable issue of fact, but because it found that

neither party had briefed the relevant issues, and that it would have been improper for the

Court to address them sua sponte. In doing so, the Court observed that even though

Plaintiff had neither sued Petritz nor expressly asserted a failure-to-intervene claim, it

appeared he was attempting to raise such a claim against Defendants. In particular, the

Court stated, in pertinent part:

Defendants initially note that it was [non-party] Petritz, and not they, who

decided to stop and detain the men, though they do not dispute that Petritz’s

decision in that regard was appropriate. The motion, though, does not

attempt to address whether it was appropriate, based on the state of facts

known at the time, for Petritz to detain Plaintiff, by handcuffing him and

placing him in a patrol car. Rather, Defendants’ motion is focused only on

the legality of the second, more-thorough, search of Plaintiff by Clawson,

which took place thirty or forty minutes after Plaintiff was detained.

Defendants maintain that if such search was legal then all of Plaintiff’s

claims fail.

***

[However,] Plaintiff disputes Defendants’ contention that his claims rise or

fall based entirely on the legality of the search by Clawson. Instead, Plaintiff

concedes only that the traffic stop and initial pat-down were justified, and

disputes the legality of everything that followed, namely, the handcuffing,

placement in the police car and search.14 More specifically, the Court

understands that Plaintiff is challenging the legality of the handcuffing,

detention in the police cruiser, and search of his body and clothing, which

took place even though the initial pat-down gave no indication that he was

carrying weapons or contraband.15 Plaintiff, though, does not go beyond

the scope of Defendants’ motion and offer a legal argument for why the

handcuffing and detention were unlawful, but, instead, responds only to

Defendants’ arguments concerning the search by Clawson.

***

[P]ersonal involvement is a prerequisite for liability under Section 1983, and

a police officer is not personally involved in an allege constitutional violation

merely because he is present at the scene of an arrest.16 However, in

actions such as this involving multiple police-officer defendants, a

defendant officer may be personally involved either because he directly

violated the plaintiff’s rights or because he failed to intervene to prevent

another officer from violating such rights.17

14 ECF No. 26 at p. 1 (Summarizing Plaintiff’s argument as being that, “assuming arguendo the initial pat-

down search of plaintiff was lawful, the handcuffing, detention, second pat-down, and the visual cavity

search of Plaintiff’s groin were not.”).

15 See, Pl. Mem. of Law, ECF No. 26 at p. 10 (“Once Ofc. Petritz patted down Plaintiff, emptied his

pockets and found nothing, there was no lawful reason to search Plaintiff further.”).

16 See, Snead v. City of New York, 463 F. Supp. 3d 386, 398 (S.D.N.Y. 2020) (“It is well settled in this

Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to

an award of damages under § 1983. An officer's mere presence at the scene of a stop or arrest generally

does not constitute sufficient personal involvement for § 1983 liability.”) (citation and internal quotation

marks omitted, collecting cases), reconsideration denied sub nom. Snead v. LoBianco, No. 16-CV-09528

(AJN), 2021 WL 861060 (S.D.N.Y. Mar. 8, 2021).

17 See, e.g., Harris v. City of New York, No. 15-CV-8456 (CM), 2017 WL 6501912, at *3 (S.D.N.Y. Dec.

15, 2017) (“To be held liable under § 1983 for false arrest or failure to intervene, an officer must be

***

In this action, Defendants were clearly present when Petritz handcuffed

Plaintiff and placed him in the patrol car, and were privy to the same

information as Petritz, since Petritz had told them what he had observed

during the traffic stop that made him think further investigation was

warranted. Consequently, the fact that Plaintiff was handcuffed and placed

in the police cruiser by Petritz does not end the inquiry into his seizure claim

against Defendants.

The Fourth Amendment protects persons from unreasonable seizures,

including but not limited to arrests without probable cause. See, Williams v.

City of New York, 683 F. App'x 57, 58 (2d Cir. 2017) (Indicating that claims

for false arrest under section 1983 rest “on the Fourth Amendment right of

an individual to be free from unreasonable seizures, including arrest without

probable cause.”) (citation omitted). Indeed, the Fourth Amendment

requires that “[b]efore [a police officer] places a hand on the person of a

citizen in search of anything, he must have constitutionally adequate,

reasonable grounds for doing so.” United States v. Vasquez, 638 F.2d 507,

520 (2d Cir. 1980) (citation omitted).

“[T]he first step in any Fourth Amendment claim (or, as in this case,

any section 1983 claim predicated on the Fourth Amendment) is to

determine whether there has been a constitutionally cognizable

seizure.” Medeiros v. O’Connell, 150 F.3d 164, 167 (2d Cir. 1998).

A Fourth Amendment “seizure” occurs when police detain an

individual under circumstances in which a reasonable person would

believe he or she is not at liberty to leave. United States v.

Mendenhall, 446 U.S. 544, 554 (1980). “Examples of

circumstances that might indicate a seizure, even where the person

did not attempt to leave, would be the threatening presence of

several officers, the display of a weapon by an officer, some

physical touching of the person of the citizen, or the use of language

or tone of voice indicating that compliance with the officer’s request

might be compelled.” Id. However, “mere police questioning does

not constitute a seizure.” Muehler v. Mena, 544 U.S. 93, 101 (2005)

(internal quotation omitted).

“personally involved” in an unlawful arrest. An officer can be personally involved in one of two ways: He

can directly participate in the arrest, or he can fail to intervene to stop an unlawful arrest when the

evidence establishes that he would have been able to do so.”) (citations omitted).

If there was a seizure, the Court proceeds to the second step, which

is to determine what type of seizure occurred. There are two

relevant types of seizures, each of which requires a different level

of justification: (i) an investigatory (or Terry) stop, which must be

based on “a reasonable suspicion supported by articulable facts

that criminal activity may be afoot”; and (ii) an arrest, which must

be based on probable cause. United States v. Glover, 957 F.2d

1004, 1008 (2d Cir. 1992) (quoting United States v. Sokolow, 490

U.S. 1, 7 (1989)). “Whether a seizure is an arrest or a merely an

investigatory detention, depends on the reasonableness of the level

of intrusion under the totality of the circumstances.” Posr v. Doherty,

944 F.2d [91,] 98 [(2d Cir. 1991)] (internal citations omitted). “As the

level of intrusiveness rises, ... an encounter between the police and

a citizen is more properly categorized as an arrest.” Id.

“A permissible investigative stop may become an unlawful arrest if

the means of detention are more intrusive than necessary.” United

States v. Wiggan, 530 F. App’x 51, 55 (2d Cir. 2013) (summary

order) (internal quotation omitted). Thus:

In determining whether an investigatory stop is sufficiently intrusive

to ripen into a de facto arrest, the Second Circuit considers the

“amount of force used by the police, the need for such force, and

the extent to which an individual’s freedom of movement was

restrained, and in particular such factors as the number of agents

involved, whether the target of the stop was suspected of being

armed, the duration of the stop, and the physical treatment of the

suspect, including whether or not handcuffs were used.”

Id. (internal citation omitted).

***

The third and final step is to determine whether the seizure was

justified—in other words, whether the officers had reasonable

suspicion (if the seizure was an investigatory stop) or probable

cause (if the seizure was an arrest). See Posr v. Doherty, 944 F.2d

at 98. In reviewing whether the officers had reasonable suspicion,

“courts evaluate the circumstances surrounding the stop through

the eyes of a reasonable and cautious police officer on the scene,

guided by his experience and training.” United States v. Padilla, 548

F.3d 179, 187 (2d Cir. 2008) (internal quotation omitted). “Even

conduct that is as consistent with innocence as with guilt may form

the basis for an investigative stop where there is some indication of

possible illicit activity.” Id. (internal quotation omitted).

In contrast, probable cause exists if an officer has “knowledge or

reasonably trustworthy information sufficient to warrant a person of

reasonable caution in the belief that an offense has been committed

by the person to be arrested.” Panetta v. Crowley, 460 F.3d 388,

395 (2d Cir. 2006) (internal quotation omitted). “Probable cause

does not require absolute certainty.” Boyd v. City of New York, 336

F.3d 72, 76 (2d Cir. 2003). Indeed, “some exculpatory evidence

does not make an arrest illegal when the totality of evidence still

establishes probable cause to believe that the suspect committed

the crime.” Stansbury v. Wertman, 721 F.3d 84, 94 (2d Cir. 2013).

McKenzie v. City of Mount Vernon, et al., No. 18 CV 603 (VB), 2018 WL

6831157, at *3-4 (S.D.N.Y. Dec. 28, 2018).

It is not disputed here that the odor of marijuana gave Defendants probable

cause to search the Mercedes. See, e.g., United States v. Holt, No. 3:21-

CR-80 (MPS), 2021 WL 5281366, at *6 (D. Conn. Nov. 12, 2021) (“The

Second Circuit has recently held that the odor of marijuana, combined with

a defendant's statement that he had been smoking marijuana earlier,

justified a search of the defendant's vehicle. United States v. Goolsby, 820

F. App'x 47, 49 (2d Cir. 2020) (summary order), cert. denied 141 S. Ct. 2818

(2021). And numerous district courts within this Circuit have held, also

recently, that the odor of marijuana alone provides probable cause.”)

(collecting cases). Nor does Plaintiff dispute, for purposes of this Decision

and Order, that Defendants were entitled to order him from the vehicle and

pat him down. The issue, rather, is whether, after finding nothing during the

pat down, [Petritz was] entitled to seize Plaintiff by handcuffing him and

placing him in the back of a patrol car while [the officers] conducted the

automobile search and/or otherwise continued their investigation.

Of course, “[d]uring a Terry18 stop, police may stop and briefly detain a

person for investigative purposes if the officer has a reasonable suspicion

supported by articulable facts that criminal activity ‘may be afoot,’ even if

the officer lacks probable cause.” Gray v. Nordstrom, No. 3:18CV1402

(KAD), 2020 WL 5709632, at *3 (D. Conn. Sept. 24, 2020) (citation omitted).

18 Terry v. Ohio, 392 U.S. 1 (1968).

Moreover, in connection with a valid traffic stop, the odor of marijuana

emanating from a vehicle provides reasonable suspicion of legal

wrongdoing and justifies officers in continuing the detention of the vehicle’s

occupants pending further investigation. See, United States v. Jenkins, 452

F.3d 207, 214 (2d Cir. 2006) (“As the officers approached the SUV, they

immediately detected an independent basis [(the odor of marijuana)] for

continuing to detain the SUV and its occupants. . . . The officers then had

a particularized and objective basis for suspecting legal wrongdoing, and

were justified in continuing the detention of the SUV and its occupants.”)

(citations and internal quotation marks omitted); see also, United States v.

Fable, No. 3:18-CR-00003 (JCH), 2018 WL 3727346, at *5 (D. Conn. July

24, 2018) (“Detective Pontz was close enough to the vehicle to form a

reasonable suspicion that the occupants had recently been smoking

marijuana. Thus, the smell of marijuana provided an independent basis for

continuing to detain the vehicle and its occupants.”) (citing Jenkins).

However, during such an investigatory Terry detention, officers are not

automatically entitled to handcuff a detainee and place him in a patrol car.

See, United States v. Mack, No. 17-CR-6159-EAW-JWF, 2018 WL

8898465, at *6 (W.D.N.Y. Nov. 29, 2018) (“[A]n officer performing a Terry

stop may not automatically frisk the individual subject to the stop; rather, to

do so, the officer must have some articulable suspicion that the subject is

‘armed and dangerous.’”) (citation omitted).19 More specifically, and as

alluded to earlier, the applicable legal principles on this point are well

settled:

For an investigatory stop to be conducted in an “appropriate

manner,” Terry v. Ohio, 392 U.S. at 22, 88 S.Ct. 1868, the stop must

be “limited to the degree of intrusion necessary to confirm or dispel

the reasonable suspicion that justifies the stop in the first place,”

Grice v. McVeigh, 873 F.3d at 167; see also United States v. Perea,

986 F.2d 633, 644 (2d Cir. 1993) (stating that permissible Terry stop

may ripen into de facto arrest requiring probable cause if officers

“unreasonably used means of detention that were more intrusive

than necessary” for stop). Factors generally relevant to that inquiry

include the following: (1) the length of time involved in the stop; (2)

its public or private setting; (3) the number of participating law

enforcement officers; (4) the risk of danger presented by the person

19 Report and recommendation adopted, No. 6:17-CR-06159 EAW, 2019 WL 2590741 (W.D.N.Y. June

25, 2019), aff'd, No. 20-376-CR, 2021 WL 4851391 (2d Cir. Oct. 19, 2021).

stopped; and (5) the display or use of physical force against the

person stopped, including firearms, handcuffs, and leg irons.

United States v. Patterson, No. 19-4332-CR, --- F.4th--- , 2022 WL 333248,

at *10 (2d Cir. Feb. 4, 2022) (citation and internal quotation marks omitted).

“No one of these factors is determinative. But to satisfy the reasonableness

standard, officers conducting stops on less than probable cause must

employ the least intrusive means reasonably available to effect their

legitimate investigative purposes.” United States v. Fiseku, 915 F.3d 863,

870 (2d Cir. 2018) (citation omitted). On this point, “it is the Government's

burden to demonstrate that the seizure it seeks to justify on the basis of a

reasonable suspicion was sufficiently limited in scope and duration to satisfy

the conditions of an investigative seizure.” Id.

Here, the Court understands Plaintiff to be arguing that while the traffic stop

and initial pat down may have been permissible, the Terry stop ripened into

a de facto arrest unsupported by probable cause when [Petritz] handcuffed

him and placed him in the back of a patrol car[.] . . . Defendants, on the

other hand, argue that probable cause existed at the time of the [second]

search of Plaintiff’s person, but do not discuss why, prior to such search, it

was reasonable for Plaintiff to be handcuffed and placed in the rear of a

patrol car. For example, there is no indication in the record that Defendants

suspected Plaintiff of possessing a weapon or of otherwise posing a threat

to their safety. Nor do Defendants otherwise attempt to argue that the Terry

stop was conducted in an appropriate manner considering the factors set

forth above.

Defendants may ultimately be able to show that the investigatory detention

of Plaintiff was reasonable under the Fourth Amendment, but at this time

they have not attempted to do so. Nor does the Court believe that it would

be appropriate in this case to analyze the issue sua sponte. Consequently,

Defendants’ motion is denied insofar as it is directed at the causes of action

arising from the [Terry] detention/seizure of Plaintiff.

Decision and Order, ECF No. 28 (emphasis added).

Before proceeding further, the Court emphasizes that, as can be seen from the

above-quoted portions of the prior Decision and Order, the Court did not find that a triable

issue of fact existed as to whether Petritz’s investigatory detention of Plaintiff was

reasonable, nor did it find that if such detention was unreasonable, Defendants would be

liable for failing to intervene to stop Petritz from violating Plaintiff’s Fourth Amendment

rights. Rather, the Court merely pointed out that it could not decide those issues on the

record before it, and that Defendants would need to file a supplemental motion addressing

those points. See, Decision and Order, ECF No. 28 at pp. 46-47 (“For the sake of judicial

economy, to the extent that Defendants may wish to file a further summary judgment

motion against the remaining portions of the First, Second, Third and Seventh Causes of

Action that are based on the seizure prior to the search, Defendants must file and serve

such motion within thirty (30) days of the date of this Decision and Order.”).

Defendants accepted the Court’s invitation and filed the subject supplementary

motion for summary judgment (ECF No. 29) concerning their potential liability for Petritz’s

seizure of Plaintiff prior to the search. Defendants’ supporting memorandum essentially

argues that even assuming arguendo that Petritz acted unreasonably by handcuffing

Plaintiff and placing him in a patrol car while the investigation was ongoing, Defendants

cannot be liable since they had no reasonable opportunity, during the brief period that

Plaintiff was detained, either to know what Petritz was doing, or to intervene. See, e.g.,

Defs. Memo of Law, ECF No. 29-1 at p. 5 (“[T]hey had no duty to intervene in the first

instance as they were unaware of any constitutional violation. Further, even if they were,

no reasonable juror could conclude that they had sufficient time or opportunity to

intervene given all that was occurring on the scene.”). As will be discussed further below,

Defendants’ motion is supported by additional affidavits from Clawson, Wakefield, and

McCracken, in which they essentially maintain that they were not aware that Petritz had

handcuffed Plaintiff, and, in any event, that they did not have a reasonable opportunity to

intervene since they were actively occupied with other aspects of the investigation.

Plaintiff responds by seemingly arguing, first, that the Court should treat it as an

established fact that his rights were violated: “Firstly, it should be highlighted that

defendants do not argue that Plaintiff’s constitutional rights were not violated. They

simply argue that it was not the Brockport officers who violated them.”20 Next, Plaintiff

argues that Defendants directly violated his Fourth Amendment rights by cooperating with

Petritz in the detention, rather than by merely failing to intervene and stop Petritz. On this

point, Plaintiff contends, for example, that although Petritz was a SUNY officer, he placed

Plaintiff into a Village of Brockport police cruiser. Alternatively, Plaintiff further contends

that, assuming Petritz violated his rights, there are triable issues of fact as to whether

Defendants were aware of such violation and failed to intervene. More specifically,

Plaintiff first states that there are triable issues of fact as to whether Defendants knew

that Petritiz had placed him in handcuffs:

[Officer Clawson’s body-camera footage] “shows Officer Petritz searching

and patting down Plaintiff, emptying his pockets and then handcuffing him.

It also shows that no contraband was discovered on Plaintiff’s person.

Obviously, then, Officer Clawson was in the immediate vicinity and

personally witnessed the seizure at issue. Furthermore, at various times

while Plaintiff was detained in the cruiser, all three Brockport officers were

in immediate proximity of the cruiser and would have witnessed Plaintiff’s

detention.

Pl. Memo of Law, ECF No. 32, at p. 4. Plaintiff further contends that there are triable

issues of fact as to whether Defendants had a reasonable opportunity to intervene in

some way. See, e.g., id. at p. 5 (“[D]efendants’ argument strains credulity. Officers

Clawson and McCracken were clearly in a position to intervene at various points while

20 Pl. Reply Memo at p. 3.

Plaintiff was detained[.]”). Plaintiff, though, has not submitted any affidavits or other

additional evidence in opposition to Defendants’ motion. Instead, Plaintiff relies on what

he maintains is shown by the body-camera footage.

In their Reply, Defendants emphasize, first, that they are not conceding that Petritz

violated Plaintiff’s Fourth Amendment rights merely by handcuffing him and placing him

in a patrol car, even assuming that Petritz’s frisk of Plaintiff found no weapon or

contraband. Rather, Defendants state that Petritz acted reasonably under the

circumstances, stating, in pertinent part:

The initial detention of plaintiff was clearly justified as a Terry stop as

recognized by this court in its earlier decision. (ECF Doc. No. 28 p. 24-25)

The question is whether the Terry stop ripened into a de facto arrest. The

defendants recognize that "handcuffing is ordinarily not incident to a Terry

stop and tends to show that a stop has ripened into an arrest." Grice v

McVeigh, 673 F.3d 162, 167 (2d Cir. 2017). Notably, the Grice court

recognized, however, that "handcuffing a suspect to investigate a

reasonable suspicion does not transform a Terry stop into an arrest" in

certain circumstances. Id @ 168. Indeed after the Grice decision, the

Second Circuit has held under remarkably similar circumstances that the

handcuffing of an individual on a Terry stop after that individual had been

patted down and no weapons or contraband was revealed, did not

constitute an arrest or Fourth Amendment violation. United States v Fiseku,

906 F.3d 65 (2d Cir 2018).

In Fiseku, the plaintiff was in the vicinity of a vehicle which had been

previously identified as being stopped due to mechanical difficulty, but

thereafter moved to the vicinity of a home that was empty but for sale, which

the investigating officer considered a prime target for burglary. The police

officer, having observed the vehicle now at another location and the plaintiff

Fiseku roaming around the area of the vehicle, again stopped the vehicle

and began questioning the plaintiff. [Fiseku] provided a license and was

patted down for weapons and contraband and none was found. The officer

decided in the interests of safety to handcuff plaintiff Fiseku as he continued

his investigation. Two other officers were present. The Second Circuit,

heeding the Supreme Court's warning not to "indulge in unrealistic second-

guessing" [and] citing United States v Sharpe 470 U.S. 675, 686, 105 S. Ct.

1568, 84 L. Ed. 2d 605 (1985), held that handcuffing was a less intrusive

means than holding plaintiff Fiseku at gunpoint and determined that no

constitutional violation occurred and the Terry stop did not become a de

facto arrest.

The officer in Fiseku did not even observe a traffic violation: he simply

observed suspicious activity and had a suspicious vehicle which Fiseku was

not even in, but was walking near it. Fiseku produced a license identifying

himself and was patted down, but no contraband or weapons found. He was

handcuffed by the officer purportedly for his safety as the individuals in the

vehicle were to be questioned and there were two other officers present.

Both Fiseku and the other individuals in the car were handcuffed, even

though no violation or crime was then known to have been committed. Yet,

the court found handcuffing during this investigation of suspicious activity

was justified and did not violate plaintiff's constitutional rights.

Here, the circumstances are even more "unusual" than in Fiseku justifying

Petritz[‘s] handcuffing and placement of Smith in the patrol vehicle. While

there was no violation or crime known to have been committed in Fiseku,

here Petritz had the following circumstances known to him before Smith

was handcuffed and detained in the police vehicle:

- It was 10:30 p.m. on a dark road in rural Brockport N.Y. but in the

vicinity of SUNY Brockport;

- a 2008 Mercedes Benz was observed travelling at a high rate of

speed;

- the officer stopped the vehicle and observed illegally tinted front

and rear windows;

- the driver had no license or identification nor did two of the three

passengers;

- the vehicle had an overpowering smell of burnt marijuana;

- Officer Petritz was concerned for his safety, requesting back up

from Brockport P.D.

- all individuals in the vehicle denied having contraband in the

vehicle, but the driver acknowledged smoking marijuana in the

vehicle earlier and showed the officer marijuana "roaches" in the

ash tray;

- upon a safety pat down of the driver who the officer decided to

detain, he recovered $6,333 in cash and believed it was consistent

with narcotics sales;

- although the front passenger denied having any contraband,21 a

pat frisk of him found 21.5 grams of marijuana concealed in the

groin area of the underwear wrapped in 13 separate plastic

baggies, also consistent with drug sales as well as $834 in U.S.

currency;

- the individuals in the vehicle indicated they were from the City of

Rochester but had no clear explanation of where they were going

or what they were doing;

- at this time a more thorough search of the driver revealed he was

in possession of a bag of cocaine, also secreted in the groin area

of his underwear;

Upon that background, Officer Petritz elected to handcuff the plaintiff before

placing him in a police car while the officers at the scene further investigated

the other individuals. Given the fact that the first two individuals searched

were clearly secreting drugs in the groin area of their underwear

necessitating a more thorough search, the fact that they lied to the police

about the contraband, the indicia that they were drug dealers in the area of

a college, without identification driving a car with blacked out windows and

no place to go, Officer Petritz reasonably placed plaintiff in the police car

handcuffed for purposes of officer safety and so as to prevent him from

removing and discarding potential contraband while the officers were

investigating to the other individuals as well as for safety purposes. It would

be reasonable to assume that since the other individuals were secreting

drugs in their underwear that so too was Mr. Smith. Hence placing him in

the police vehicle unattended and without handcuffs would have provided

him the opportunity to discard any illegal drugs he might be secreting, not

to mention the safety concerns raised by the fact that there were four

individuals, known unlawful activity, and indicia that they were selling drugs

raising heightened concern for officer safety.

Accordingly, the defendants maintain in the first instance that the detention

of the plaintiff in the police vehicle for 27 minutes while handcuffed as the

police attended to the other three occupants of the vehicle, did not turn the

21 Plaintiff is actually mistaken on this point, as Nazier admitted that he was carrying marijuana. However,

Nazier lied at least twice concerning the location of the drugs before they were found in his underwear.

Terry stop into an arrest. Notably, in Grice, the second circuit held that

holding the plaintiff in handcuffs for thirty minutes while an investigation by

another police agency was finished was not an unreasonable interval. Grice

@ 168. Again, the situation confronted in Grice was seemingly of

considerably less suspicion and danger than the instant case: Grice

involved a 16 year old lawfully observing trains go by when his activity was

reported as suspicious. He actually had a letter from the railroad indicating

his activity was permitted, though the police did not initially look at it as they

were concerned about the situation. Moreover, there were "several other"

police officers on scene.

Again, the circumstances justifying handcuffing here appear more easily

justified than in Grice or Fiseku. In Grice, there were numerous officers

investigating a single individual with no indicia whatsoever of any crime or

infraction, while here the vehicle and its occupants wreaked of the smell of

marijuana; were in a vehicle with illegally tinted windows; had no

identification; had no explanation of where they were going or what they

were doing; lied to the police about the presence of contraband; and had

significant amounts of cash and contraband clearly divided for sales

concealed in their underwear. Here we have evidence of actual offenses

and crimes, while in Fiseku there was mere suspicion that criminal activity

was afoot.

Under these circumstances, the court here should also likewise heed the

direction of the Second Circuit citing United States v Sharpe 470 U.S. 675,

686, 105 S. Ct. 1568, 84 L. Ed. 2d 605 (1985) and not indulge in needless

second guessing of Officer Petritz's determination on a dark cold night in

the middle of winter to proceed cautiously by handcuffing and briefly

detaining Mr. Smith. Assuming then no de facto arrest and no constitutional

violation, it follows that there was no duty to intervene.

Pl. Reply at pp. 5-9. Defendants also reiterate that, even assuming Petritz acted

unreasonably in handcuffing Plaintiff, they cannot be held liable for failing to intervene

since “none of the Brockport Officers were in position to have known that Plaintiff’s

constitutional rights were [being] violated,”22 and since there was no reasonable

22 Def. Reply at p. 6.

opportunity for them to release Plaintiff sooner earlier in any event, given all that was

going on at the time. Lastly, Defendants argue that even if a constitutional violation

occurred, they would be entitled to qualified immunity.

The Court has carefully considered the parties’ submissions.

DISCUSSION

The issue before the Court is whether Petritz’s investigative detention of Plaintiff,

during which Plaintiff was handcuffed and placed in the rear of a patrol car, violated

Plaintiff’s Fourth Amendment rights, and, if so, whether Clawson, McCracken, and

Wakefield can be held liable for failing to intervene and stop Petritz from violating those

rights. The Court finds that Defendants are entitled to summary judgment, even assuming

that Petritiz unreasonably detained Plaintiff initially, prior to the later development of

probable cause.

As an initial matter the Court reiterates that it is law of the case that following the

traffic stop, Petritz had a reasonable suspicion that criminal activity was afoot sufficient to

justify detaining Plaintiff during the investigation and search of the Mercedes. Moreover,

Plaintiff does not seem to really challenge Petritz’s decision to place him in a patrol car

during the investigation, and, even if he did, it was clearly reasonable to place Plaintiff

into a warm patrol car rather than forcing him to stand outside in the bitter cold. On that

point, the body camera footage indicates that before the vehicle occupants were placed

into patrol cars, they repeatedly complained about how cold it was that night.

The issue therefore boils down to whether it was reasonable for Petritz to handcuff

Plaintiff before placing him in the patrol car. Defendants’ reply brief argues that it was

reasonable as a matter of law for Petritz to do so, and that, consequently, Defendants

cannot be liable for failing to intervene. However, on the present record the Court cannot

find as a matter of law that Petritz was entitled to handcuff Plaintiff, at least not prior to

the development of probable cause which resulted from the totality of circumstances that

culminated in the finding of narcotics hidden in Nazier’s underwear.

On this point, the Court notes preliminarily that Defendant’s reply brief is not

entirely accurate concerning the sequence of events that preceded the handcuffing.

Specifically, the reply brief incorrectly suggests that when Petritz made the decision to

handcuff Plaintiff, the officers had already discovered that Dyshieka and Nazier had

narcotics hidden in their underwear, when, in fact, those discoveries occurred shortly after

Plaintiff was already handcuffed and detained.

Instead, the following facts were evident at the time Petritz handcuffed Plaintiff:

The traffic stop took place on a dark night on a relatively deserted stretch of road; the

stopped Mercedes had been speeding; the occupants of the vehicle, who equaled the

number of officers involved in the investigation, were observed moving around inside the

vehicle after the stop, and the explanation given for such movement was suspicious and

later shown to be untrue; the vehicle smelled strongly of freshly-burnt marijuana and

partially-burned blunts were visible in the ashtray; despite the clear evidence of recent

marijuana usage inside the relatively small sedan, the driver initially denied recently using

marijuana and at least two of the occupants denied knowing anything about marijuana;

the driver could not produce identification or a vehicle registration, and at least one other

occupant also could not produce identification; the occupants, all of whom claimed to live

in the City of Rochester, were not college students and provided no clear explanation for

what they were doing in a relatively isolated section of Brockport at the entrance to the

University; and one occupant was carrying a large sum of cash ($6,300.00) that he

implausibly claimed was earned from delivering newspapers. These facts reasonably

indicated, and the officers so concluded, that the four men might be engaged in narcotics

trafficking.

Nevertheless, under the law of this Circuit, the Court cannot find as a matter of

law that it was reasonable for Petritz, prior to the discovery of the concealed narcotics, to

handcuff Plaintiff under those circumstances, in which the occupants had already been

removed from the vehicle and Plaintiff had already been frisked and found not to have a

weapon. On this point, the relevant law is clear:

There is no bright-line rule regarding the use of handcuffs during a Terry

stop. Usually, under the circumstances, the use of handcuffs transforms a

Terry stop into an arrest. See, e.g., United States v. Bailey, 743 F.3d 322,

340–41 (2d Cir. 2014). Sometimes, under the circumstances, the use of

handcuffs does not transform a Terry stop into an arrest. See, e.g., United

States v. Fiseku, 915 F.3d 863, 873–74 (2d Cir. 2018); Grice v. McVeigh,

873 F.3d 162, 168 (2d Cir. 2017).

Petaway v. City of New Haven, No. 3:19-CV-1717 (SRU), 2020 WL 1969396, at *2 (D.

Conn. Apr. 24, 2020).

To satisfy the Fourth Amendment's reasonableness requirement, “officers

conducting stops on less than probable cause must employ ‘the least

intrusive means reasonably available’ to effect their legitimate investigative

purposes.” United States v. Newton, 369 F.3d 659, 674 (2d Cir.2004)

(quoting Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d

229 (1983) (plurality opinion)). The rule does not operate categorically to

authorize or prohibit particular forms of restraint in conjunction with an

investigatory stop. Rather, it demands a careful consideration of the

circumstances in which challenged restraints were used. Courts conducting

such an inquiry are, moreover, properly mindful of the Supreme Court's

caution in Sharpe that,

[a] creative judge engaged in post hoc evaluation of police conduct

can almost always imagine some alternative means by which the

objectives of the police might have been accomplished. But the fact

that the protection of the public might, in the abstract, have been

accomplished by less intrusive means does not, itself, render the

search unreasonable. The question is not simply whether some

other alternative was available, but whether the police acted

unreasonably in failing to recognize or to pursue it.

470 U.S. at 686–87, 105 S.Ct. 1568 (internal quotation marks, alterations,

and citation omitted).

With these principles in mind, courts have upheld a range of restraints

incident to a Terry stop, from the patdown at issue in Terry itself, to the

drawing of firearms, to the use of handcuffs, all depending on the

circumstances presented. See United States v. Newton, 369 F.3d at 674

(collecting cases). In sum, even though handcuffs are generally recognized

as a “hallmark of a formal arrest,” id. at 676 (collecting cases), not every

use of handcuffs automatically renders a stop an arrest requiring probable

cause to satisfy Fourth Amendment reasonableness, see id. at 675. The

relevant inquiry is whether police have a reasonable basis to think that the

person detained poses a present physical threat and that handcuffing is the

least intrusive means to protect against that threat. See id. at 674.

United States v. Bailey, 743 F.3d 322, 339–40 (2d Cir. 2014) (emphasis added).

In Bailey, the Second Circuit held that it was unreasonable for officers to handcuff

a suspect during a Terry investigation into criminal activity involving narcotics and a

firearm, where the suspects had already been removed from their vehicle and frisked for

weapons:

The relevant inquiry is whether police have a reasonable basis to think that

the person detained poses a present physical threat and that handcuffing is

the least intrusive means to protect against that threat. . . . We found these

twin conditions satisfied in Newton, a case in which a defendant was

handcuffed inside his home for the few minutes it took officers to search for

and locate a firearm. The officers were in the home in response to a report

that Newton illegally possessed a firearm and had recently threatened to kill

his mother and her husband. In such a volatile situation, we concluded that

it was objectively reasonable for officers to handcuff Newton until they had

located and secured the gun. Indeed, we concluded that handcuffing was a

less intimidating—and less dangerous—means of ensuring the safety of

everyone on the premises than holding Newton at gunpoint during the

search.

Here, the police faced no comparable physical threat when they handcuffed

Bailey. To the contrary, having already subjected both Bailey and Middleton

to a patdown, the officers had confirmed that neither man was armed.

Further, having had both men exit the stopped vehicle, the officers had

eliminated the risk that the men might obtain any weapon from therein. We

recognize that police were investigating drug trafficking and unlawful firearm

possession, crimes frequently associated with violence. But just as the law

does not categorically assume that handcuffing transforms every stop into

an arrest, so the law does not categorically assume that every investigatory

stop related to particular crimes requires handcuffing, particularly when a

patdown outside a vehicle reveals the detainee to be unarmed.

United States v. Bailey, 743 F.3d at 340 (emphasis added; citations and internal quotation

marks omitted).

As Defendants correctly point out, subsequent to the Bailey decision, the Second

Circuit upheld the reasonableness of a handcuffing during a Terry investigatory stop in

both Grice v.McVeigh, 873 F.3d 162 (2d Cir. 2017) and U.S. v. Fiseku, 915 F.3d 863 (2d

Cir. 2018). However, those cases are distinguishable on their facts. The Grice decision,

in particular, involved very unusual facts that are completely unlike those of the instant

case.23

The facts of Fiseku are more analogous, but still not entirely on point. In particular,

Fiseku involved a late-night encounter in a dark parking area between police officers and

23 See, e.g, Grice, 873 F.3d at 162 (“These circumstances can easily be classified as unusual. McVeigh

was on the lookout for railroad sabotage, received a report by police radio of an individual matching

Grice's description bending down by the tracks with a remote control device, and was unaware of a

pastime that could explain the behavior that was observed. He therefore had reason to believe, suspect,

and fear that Grice might use an electronic device to set off an explosive on the tracks. It was not

unreasonable for a lone officer to handcuff Grice in order to ensure that Grice could not press a detonator

button on any electronic device until the tracks could be searched.”).

three persons suspected of being involved with a burglary. When the first defendant

police officer arrived, he saw that some individuals were inside a parked vehicle, while

one, and possibly more, were outside the vehicle. The officer handcuffed the plaintiff,

who was outside the vehicle, and another suspect, who had been inside the vehicle, even

after frisking them and finding no weapons, at a time when one possibly-armed suspect

still remained inside the vehicle, and other suspects may have been lurking nearby. In

finding that the officer acted reasonably in using handcuffs during a Terry stop, the

Second Circuit stated:

[Officer] Gruppuso radioed for assistance, but given the late hour and the

remote location, he could not be sure how many units would respond, or

how long it would take them to arrive. In fact, two units responded within

minutes, but by that time, Gruppuso had already begun interacting with

Fiseku. A pat-down did not reveal any weapons or contraband on Fiseku's

person, but the Supreme Court has “expressly recognized” that “suspects

may injure police officers and others by virtue of their access to weapons,

even though they may not themselves be armed.” Michigan v. Long, 463

U.S. 1032, 1048, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983) (emphasis

added). The Long Court explained further that “investigative detentions

involving suspects in vehicles are especially fraught with danger to police

officers.” Id. at 1047, 103 S.Ct. 3469. When Jajaga and Fiseku were

restrained in handcuffs, an additional suspect (Hughes) remained seated in

the Pathfinder, where weapons may have lain within reach. Moreover, in

the dark, tree-lined parking lot, Gruppuso could not feasibly conduct a

protective perimeter sweep to check for secreted weapons or additional

associates while monitoring three suspects, whom the District Court

described as “muscular men.” App'x 185.

Fiseku, 915 F.3d at 871.

The facts of the instant case are clearly different. For instance, when Petritz

handcuffed Plaintiff, the four officers involved in the investigation had no reason to doubt

that there were only four suspects, none of whom were particularly imposing physically,

who had already been moved away from the vehicle and frisked for weapons.

The fact that the officers may have reasonably suspected the occupants of the

Mercedes of committing the dangerous crime of narcotics trafficking does not mean it was

reasonable for Petritz to handcuff Plaintiff during a Terry stop, in the absence of some

reasonably-perceived ongoing threat from Plaintiff to the officers’ safety.24 It is

undisputed that at the time Petritz handcuffed Plaintiff, all four men had already been

removed from the Mercedes, and Petritz’s frisk of Plaintiff had been negative for weapons.

Moreover, Plaintiff was being cooperative with the investigation, and there is no indication

that he posed a threat to the officers’ safety at the time Petritz handcuffed him.

Consequently, the Court rejects Defendants’ argument that it should find, as a matter of

law, pursuant to the Grice and Fiseku decisions, that Petritz acted reasonably in

handcuffing Plaintiff. See United States v. Compton, No. 13-CR-405, 2014 WL 12674478,

at *6 (N.D.N.Y. Sept. 9, 2014 (holding that handcuffing constituted an arrest even when

officers suspected the defendant was involved in drug activity, because defendant did not

pose a present threat when he cooperated with officers’ instructions, was not a flight risk,

and there was no indication he was armed), aff'd, 830 F.3d 55 (2d Cir. 2016). Rather,

there are triable issues of fact on that point.

Nevertheless, the Court agrees with Defendants’ argument that they are entitled

to summary judgment on the failure-to-intervene claim, even assuming that Petritz acted

24 See, e.g., Rivera v. Trinh, No. 3:19-CV-01257 (MPS), 2021 WL 3742240, at *4 (D. Conn. Aug. 24,

2021) (“Officer Trinh has not identified any ongoing concern that Mr. Rivera could access a weapon or

otherwise posed a risk to the officers or others during much of the period that he was detained [in

handcuffs]. While Mr. Rivera stated that there were other guns in the home, he told Officer Trinh that they

were locked in the attic, and the record contains no suggestion that Officer Trinh was concerned, or had a

reasonable basis to believe, that there were other firearms that might be immediately accessible to Mr.

Rivera. Further, according to Mr. Rivera's version of the facts, he did not demonstrate unwillingness to

cooperate with Officer Trinh's investigation. Even Officer Trinh concedes that after some alleged initial

resistance to being handcuffed, Mr. Rivera complied. Thus, viewing the facts in the light most favorable

to Mr. Rivera, I conclude that a reasonable juror could find that Mr. Rivera's detention ripened into a de

facto arrest.”) (citations and internal quotation marks omitted).

unreasonably by handcuffing Plaintiff. As a preliminary matter, the Court finds no merit

to Plaintiff’s contention that Defendants should be deemed to have been “personally

involved” in the handcuffing, without regard to any failure-to-intervene, simply because

Petritz placed Plaintiff into a vehicle owned by the Village of Brockport.

Rather, to the extent Defendants are liable at all, it is only under a theory that they

failed to intervene. The elements of a failure-to-intervene claim are well settled:

It is widely recognized that all law enforcement officials have an affirmative

duty to intervene to protect the constitutional rights of citizens from

infringement by other law enforcement officers in their presence. An officer

who fails to intercede is liable for the preventable harm caused by the

actions of the other officers where that officer observes or has reason to

know: (1) that excessive force is being used; (2) that a citizen has been

unjustifiably arrested; or (3) that any constitutional violation has been

committed by a law enforcement official. In order for liability to attach, there

must have been a realistic opportunity to intervene to prevent the harm from

occurring. Whether an officer had sufficient time to intercede or was

capable of preventing the harm being caused by another officer is an issue

of fact for the jury unless, considering all the evidence, a reasonable jury

could not possibly conclude otherwise.

Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994) (emphasis added; citations omitted).

Applying these legal principles here, the Court agrees with Defendants that even

assuming arguendo that Petritz acted unreasonably by handcuffing Plaintiff, Defendants

cannot be liable for having failed to intervene. In this regard, it is first of all clear, from the

body camera footage, that defendants McCracken and Wakefield had no reason to know,

at the time it occurred, that Petritz had handcuffed Plaintiff. More specifically, when Petritz

was frisking Plaintiff, and when he subsequently placed Plaintiff in handcuffs, Wakefield

was approximately two car lengths away, in the dark, frisking Holland and then, later,

running a records check inside his patrol car, and McCracken, who is much smaller in

stature than the other officers, was on the opposite side of the patrol car, in the dark,

frisking Nazier. These facts, taken from the Court’s review of the body camera footage,

are consistent with the supporting affidavits submitted by Wakefield and McCracken

indicating that they did not observe Petritz’s search and detention of Plaintiff because

they were busy performing other investigative functions.

Indeed, the body camera footage further shows that long after Petritz had

handcuffed Plaintiff and placed him in a patrol car, McCracken assumed that Plaintiff, like

Holland, was not handcuffed inside the patrol car. Specifically, at 24:33 on Clawson’s

body camera footage, near the end of the entire encounter, as McCracken and Clawson

were in the process of searching Dyshieka a second time, McCracken stated to Petritz,

referring to Plaintiff, “He’s not cuffed in there, is he?” To which Petritz responded, “Yeah,

he’s cuffed.”25 This appears to be the earliest that McCracken could have known that

Plaintiff was handcuffed, by which time the officers had developed probable cause as to

Plaintiff, as discussed in the Court’s prior Decision and Order.26 Similarly, the earliest

that Wakefield could have known that Plaintiff was handcuffed was even later, when

Plaintiff was removed from the patrol car to be searched a second time.

Moreover, even if Wakefield and/or McCracken had somehow managed to see

that Petritz had handcuffed Plaintiff, they would have had no reason to know that he had

done so despite finding no drugs or weapons on Plaintiff. That is, they had no reason to

know what Petritz’s frisk of Plaintiff had uncovered, and, consequently, they could have

reasonably assumed that Petritz was arresting Plaintiff after finding narcotics or other

25 See also, McCracken body camera footage at approximate 15 minute mark (same).

26 In any event, by this point the officers had probable cause to search Plaintiff for narcotics, as the Court

found in its prior decision.

contraband during the frisk. Furthermore, Plaintiff never complained to Wakefield or

McCracken (or to any officer, for that matter) that he believed he was being improperly

detained.

In sum, regarding Wakefield and McCracken, Plaintiff has not come forward with

evidentiary proof in admissible form tending to show that either Wakefield or McCracken

had reason to know that Petritz was violating Plaintiff’s rights and failed to intervene

despite having a reasonable opportunity to do so.

The question is closer with regard to Clawson, since, as “cover officer” when

Plaintiff and Nazier were being searched, Clawson was located in a position to have

potentially observed Petritz frisk and handcuff Plaintiff. And, indeed, Clawson testified at

deposition that while acting as “cover officer” he observed Petritz frisk Plaintiff and remove

items from Plaintiff’s pockets. However, Clawson also testified that he did not observe

Petritz’s entire search of Plaintiff,27 and this testimony is supported by the body cam

footage which shows that initially, prior to when Clawson began assisting McCracken with

the search of Nazier, Clawson was alternating his attention between the searches of

Plaintiff and Nazier that were proceeding simultaneously. On this point, at deposition

Clawson testified as follows:

Q. The currency was taken off of whom?

A. I don’t know whom it was specifically taken off of, sir. That was when

officers were doing their searches of the persons pockets.

Q. Was it taken off of my client [Plaintiff]?

A. I did not see. I was going from your client back to another client going

back and forth observing watching both personnel as their cover officer. So

27 Pl. Dep. At p. 39 (“I didn’t witness his full search, sir.”).

I cannot tell you exactly what was taken out of any person’s pocket.

Pl. Dep. at p. 59. Clawson further indicated at deposition that he was not aware at the

time of the incident whether Petritz had found any contraband on Plaintiff, but that he had

assumed that Petritz had not found any weapon, since he assumed that, for safety

reasons, Petritz would have told the other officers about any weapons that he found.28

Additionally, in support of the instant motion, Clawson has submitted an affidavit

in which he indicates that, prior to the second search of Plaintiff, he had been unaware

that Petritz had handcuffed Plaintiff, since he had been busy searching the other vehicle

occupants:

A review of the bodycam footage demonstrates that I did not have an

opportunity to intervene when Plaintiff was placed in the back of the police

vehicle by SUNY Officer Petritz, as I was otherwise engaged in the search

of the front seat passenger, identified as Nazier McFadden. . . . While I

was busy searching this individual, the [body cam] footage shows Officer

Petritz off to my right, apparently patting down the plaintiff, Mr. Smith. In

fact, the audio indicates that while I was searching one of the other

individuals, I indicated to Officer Petritz that he could place Mr. Smith in my

patrol car, as the investigation continued. My understanding at that point

was that Mr. Smith was being detained for investigation. My attention,

however, was focused on the individual I was dealing with, Mr. [Nazier]

McFadden. While I assumed Plaintiff was being detained, as my focus was

on the suspect who being searched and eventually arrested, I would not

have known whether the Plaintiff was handcuffed or not, or whether as a

result of Officer Petritz’s initial pat-down whether he might be subject to

arrest. When Petritz was conducting his inquiry of Mr. Smith [(Plaintiff)], the

[body-cam] footage show that I was fully engaged with [Nazier] McFadden

and then the other passenger in the vehicle, as well as the driver of the

vehicle, Dyshieka McFadden, upon whom crack cocaine was located.

***

At that point, I frankly did not know what Officer Petritz’s intentions were as

to Mr. Smith, but my assumption was he was being detained for further

investigation and placed in the patrol car for safety purposes. At this point,

28 Pl. Dep. At pp. 39-40.

we did not know who we were dealing with, but what we did know was that

they were likely high on marijuana, they possessed marijuana, cocaine,

thousands of dollars in cash, and the marijuana was held in the form that it

looked like it was for sales. The individuals were not from Brockport, only

one person had any ID, the driver didn’t have a license or ID and they had

no real explanation as to where they were going or what they were doing.

They also had not been truthful with responses to some of our questions.

Accordingly, officer safety was of concern[.]

My [body cam] footage does show off to my right while I’m engaged with the

front seat passenger [Nazier], that Officer Petritz had his handcuffs in his

hands, presumably to handcuff the Plaintiff. However, you can see and

hear from the [body-cam] footage that I am fully engaged with the individual

from the front passenger. While I must have known plaintiff was going to

be placed in my vehicle as Officer Petritz asked where he could be placed,

I actually did not know whether Plaintiff was or was not handcuffed. I do not

recall observing Officer Petritz’s pat-down or handcuffing of Mr. Smith and

was not involved in the placement of the Plaintiff in the patrol car. I know

now and likely knew then that no weapons were found in the pat-down of

Plaintiff as I expect we all would have been made aware of such a finding.

At the time, I had no reason to believe that anything was amiss concerning

the placement of Plaintiff in my police vehicle while we continued our

investigation. Additionally, a review of the bodycam footage from the

beginning to the point when the Plaintiff was removed from the police car

for the search that I conducted, it is clear I would not have had any

opportunity to intervene as I was engaged the entire time in the investigation

and/or search of the other occupants in the vehicle that had been stopped

by Officer Petritz.

Clawson Affidavit, ECF No. 29-4 (emphasis added).

In opposition to Defendants’ motion, Plaintiff contends that there are triable issues

of as to whether Clawson had notice of Petritz’s alleged improper handcuffing Plaintiff,

since Clawson was located in a position in which it was possible for him to have seen

Petritz search and handcuff Plaintiff. Plaintiff also contends that there are triable issues

of fact as to whether Clawson had a reasonable opportunity to intervene.

However, even assuming arguendo that Plaintiff has raised a triable issue of fact

as to whether Clawson had reason to know that Petritz had handcuffed Plaintiff,29 that is

not the same as raising a triable issue of fact as to whether Clawson had reason to know

that Petritz was violating Plaintiff’s constitutional rights by doing so. Clawson would not

have had reason to know of the alleged constitutional violation, unless he also knew that

Petritz had no basis to handcuff Plaintiff. However, Clawson’s sworn testimony is that

he did not observe Petritz’s entire search of Plaintiff, and that he therefore did not know

“whether as a result of Officer Petritz’s initial pat-down [Plaintiff] might be subject to

arrest.”

To the extent that Plaintiff here is claiming otherwise, and maintaining that Clawson

had reason to know that Petritz’s frisk of Plaintiff turned up no contraband or weapons,

the assertion is unsupported by any evidentiary proof in admissible form. Rather, as

previously mentioned, Clawson’s body camera footage shows that during Petritz’s search

of Plaintiff, Clawson was standing several feet away, alternately shining his flashlight

between that search and McCracken’s simultaneous search of Nazier, while Petritz was

removing various items from Plaintiff’s pockets without commenting on what he had

found. Consequently, it cannot be reasonably inferred that Clawson was aware of what

Petritiz had found during his search. Moreover, even if Clawson had observed the entire

29 But see, e.g., McCoy v. TJX Companies, Inc., No. 21-CV-4907 (VEC), 2023 WL 4624499, at *4

(S.D.N.Y. July 19, 2023) (“Plaintiff has failed to establish that Defendant had actual notice. There is no

record evidence that anyone complained about the stools or the manner in which they were displayed.

Although Plaintiff alleges that a security guard was nearby at the time of her fall, there is no evidence that

the security guard actually observed that the stools were improperly displayed. The mere assertion that

the security guard “was in a position to see the area where the stools in question were located,” is

insufficient to create a genuine issue of material fact regarding whether Defendant had actual notice of

the hazardous condition.”) (citations to record omitted).

search, which is not shown by the evidence, he would have seen Petritz remove the

baggie containing marijuana residue from Plaintiff’s pocket, and could have reasonably

assumed that Petritz, in whose investigation Clawson was merely assisting, intended to

charge Plaintiff.

On the other hand, it is true that at the completion of Petritz’s search, Clawson

could have overheard Petritz tell Plaintiff that he was “detaining” him, without mentioning

the word “arrest,” which under most circumstances involving an investigative Terry

detention would have been inconsistent with Petritz’s subsequent application of

handcuffs. However, inasmuch as Plaintiff has not shown that Clawson had reason to

know the actual results of Petritz’s frisk of Plaintiff, or to know whether Petritz intended to

charge Plaintiff with some crime, the Court finds that Petritz’s use of the word “detain” in

this situation, as opposed to the word “arrest,” was insufficient by itself to put Clawson on

notice that Petritz was possibly violating Plaintiff’s Fourth Amendment rights.

For these various reasons, the Court finds that Plaintiff has not raised a triable

issue of fact as to whether Clawson had reason to think that Petritz was violating Plaintiff’s

Fourth Amendment rights by applying handcuffs.

Furthermore, even assuming arguendo that Plaintiff had raised a triable issue of

fact on that point, the Court finds that Plaintiff has not raised a triable issue of fact as to

whether Clawson had a reasonable opportunity to intervene before the Terry stop ended.

In that regard, the Terry stop ended when the officers developed probable cause to arrest

all four occupants of the Mercedes, based on the totality of circumstances that culminated

in the discovery of the narcotics concealed in Nazier’s underwear, which essentially

occurred simultaneously with Petritz’s placement of handcuffs on Plaintiff. More

specifically, according to Clawson’s body camera footage,30 Petritz began to apply

handcuffs to Plaintiff at approximately 7:07 minutes, and approximately 13 seconds later,

at approximately 7:20 minutes, Nazier admitted to Clawson and McCracken that he had

a supply of marijuana concealed on this body. Thereafter, Clawson actively searched

Nazier for the concealed marijuana until approximately 8:00 minutes into the video, when

Petritz can be overheard asking whether he can place Plaintiff into a Brockport police

vehicle. Thereafter, at approximately 9:49 minutes into the video, Clawson locates the

marijuana concealed in Nazier’s underwear. In other words, Clawson was actively

engaged in searching Nazier from the moment that Petritz applied handcuffs until

probable cause was developed moments later, and the Court finds that no reasonable

juror could conclude that Clawson acted unreasonably in that short span of time (less

than three minutes) by failing to stop what he was doing and intervene in Plaintiff’s

detention.31

Alternatively, the Court finds that Clawson would be entitled to qualified immunity.

On this point, the applicable legal principles are clear:

“The doctrine of qualified immunity shields police officers acting in their

official capacity from suits for damages unless their actions violate clearly-

established rights of which an objectively reasonable official would have

known. When a defendant moves for summary judgment based on qualified

immunity, courts consider whether the facts shown make out a violation of

a constitutional right, and whether the right at issue was clearly established

at the time of the defendant's alleged misconduct.” McKinney v. City of

Middletown, 49 F.4th 730, 738 (2d Cir. 2022) (citations and internal

30 Clawson File 1 on CD-ROM.

31 But see, Ferguson v. City of New York, No. 17-CV-4090 (BMC), 2018 WL 3626427, at *7 (E.D.N.Y. July

30, 2018) (“Although the video evidence suggests this seizure was brief (four or so minutes long), a

reasonable jury could conclude that four minutes was enough time for another officer to intervene by

telling plaintiff he was free to leave and letting him leave.”).

quotation marks omitted).

“Summary judgment on qualified immunity is appropriate when ‘a jury,

viewing all facts in the light most favorable to the plaintiff, could conclude

that officers of reasonable competence could disagree on the legality of the

defendant's actions.’” Charland v. Nitti, No. 1:11-CV-1191 MAD/RFT, 2014

WL 1312095, at *7 (N.D.N.Y. Mar. 31, 2014) (quoting Cerrone v. Brown,

246 F.3d 194, 202 (2d Cir. 2001)).

Cole v. Mesiti, No. 19-CV-6012 CJS, 2022 WL 17324841, at *6 (W.D.N.Y. Nov. 29, 2022).

Here, Clawson would be entitled to qualified immunity, since even if he had a duty

to intervene under the circumstances presented here, that duty was not clearly

established, for reasons including that it is not evident that he had authority over Petritz,

who was a member of a separate police agency responsible for policing SUNY Brockport,

where the traffic stop took place. See, e.g., Grice v. McVeigh, 873 F.3d at 169 (“Grice

argues that the defendants are liable for their failure to intervene with the MTA police

officers to prevent Grice's continued handcuffing. McVeigh and Farina, as officers of the

Town of Greenburgh, had no evident authority over officers of the MTA, who serve in a

separate hierarchy in a separate jurisdiction with particular responsibility for security of

the railroad. In any event, MTA officers did not seem to be mistreating Grice, and could

reasonably decide to interview Grice at the MTA facility. If McVeigh and Farina had a duty

to intervene in those circumstances, that duty was not clearly established, and the

defendants therefore enjoy qualified immunity on that claim.”) (citation omitted).

Moreover, even assuming that the duty was clearly established in a broad sense,

the Court finds reasonable officers could disagree as to whether Clawson had a duty or

an opportunity to intervene under the particular facts presented here. See, Walczyk v.

Rio, 496 F.3d 139, 154 (2d Cir. 2007) (“Even if the right at issue was clearly established

in certain respects, however, an officer is still entitled to qualified immunity if officers of

reasonable competence could disagree on the legality of the action at issue in its

particular factual context.”) (citations and internal quotation marks omitted).

CONCLUSION

Defendants’ motion for summary judgment (ECF No. 29) is granted as to all

remaining claims. The Clerk of the Court is directed to enter judgment for Defendants

and to close this action.

SO ORDERED.

Dated: Rochester, New York

August 13, 2024

ENTER:

_____________________

CHARLES J. SIRAGUSA

United States District Judge