The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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KEVANTE LOVING,
Plaintiff,
OPINION & ORDER
- against - ON MOTION FOR SUMMARY
JUDGMENT
TROOPER PATRICK PORTEUS, and TROOPER
PETER VITI, and TROOPER EDWARD REISER, No. 24-CV-5789 (CS)
Individually and as Employees of the State of New
York,
Defendants.
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Appearances:
Ryanne Konan
Ryanne Konan Law Office and Legal Services
Wappingers Falls, New York
Counsel for Plaintiff
Christopher J. Byrne
Assistant Attorney General
New York, New York
Counsel for Defendants
Seibel, J.
Before the Court is Defendants’ motion for summary judgment. (ECF No. 41.) For the
following reasons, Defendants’ motion is GRANTED.
I. BACKGROUND
The following facts are taken from Defendants’ Local Civil Rule 56.1 Statement, (ECF
No. 43 (“Ds’ 56.1 Stmt.”)), Plaintiff’s response to Defendants’ 56.1 Statement, (ECF No. 47
(“P’s 56.1 Resp.”)), and the supporting exhibits, and are undisputed unless otherwise noted.1
Facts
On July 24, 2024, Plaintiff Kevante Loving was driving a black Mercedes sedan
southbound on Innis Avenue in Poughkeepsie, New York. (Ds’ 56.1 Stmt. ¶¶ 1, 6.) Defendants
New York State Troopers Peter Viti and Edward Reiser were monitoring traffic when they saw
Plaintiff’s vehicle. (Id. ¶ 2.) Troopers Viti and Reiser initiated a traffic stop near 134 Innis
Avenue because they believed the windows on Plaintiff’s vehicle to be illegally tinted based on
how dark they appeared. (Id.) Trooper Reiser is not issued a tint meter but was trained to
visually identify illegally tinted sedan side windows, which he stated cannot be tinted past 70%
light transparency. (Id. ¶ 3.)
1 Some of Plaintiff’s responses to Defendants’ 56.1 statements merely add facts, (e.g., P’s
56.1 Resp. ¶¶ 9, 16), or deny Defendants’ statements without citing to admissible evidence, (e.g.,
id. ¶ 14), which is insufficient to dispute that statement, see, e.g., Espinoza v. Foundry Workers
LLC, 792 F. Supp. 3d 344, 347 n.2 (E.D.N.Y. 2025) (court deems facts undisputed where party
denies without citing to admissible evidence); Ward v. Nassau County, 15-CV-4309, 2023 WL
5417329, at *1 (E.D.N.Y. Aug. 22, 2023) (“A party may not rest on a mere denial without citing
supporting admissible evidence.”); Kesner v. Buhl, 590 F. Supp. 3d 680, 690-91 (S.D.N.Y. 2022)
(court must disregard responses that do not cite evidence in record), aff’d sub nom., Kesner v.
Dow Jones & Co., No. 22-875, 2023 WL 4072929 (2d Cir. June 20, 2023) (summary order);
Johnson v. City of N.Y., No. 15-CV-6915, 2019 WL 294796, at *10 n.8 (S.D.N.Y. Jan. 23, 2019)
(“56.1 statements not explicitly denied by plaintiff are deemed admitted.”); Risco v. McHugh,
868 F. Supp. 2d 75, 85 n.2 (S.D.N.Y. 2012) (improper to “interject[ ] arguments and/or
immaterial facts in response to facts asserted by Defendant, without specifically controverting
those facts”). Accordingly, any of Defendants’ 56.1 statements, or any portion thereof, that are
properly supported and that Plaintiff does not specifically deny with evidence are deemed
admitted for purposes of this motion. See Universal Calvary Church v. City of N.Y., No. 96-CV-
4606, 2000 WL 1745048, at *2 n.5 (S.D.N.Y. Nov. 28, 2000).
Trooper Reiser approached Plaintiff’s vehicle and further observed the tinted windows, as
well as an electronically-operated license plate cover and Plaintiff’s South Dakota license plates.
(Id. ¶¶ 4-5.) When Trooper Reiser asked Plaintiff where he was going, Plaintiff stated he was
going to KFC on his way home to Connecticut from work at St. Luke’s hospital in Newburgh,
New York. (Id. ¶ 6.) Defendants also learned that Plaintiff had a Connecticut driver’s license
but that his car was registered in South Dakota, which he stated was because South Dakota had
cheaper insurance. (Id. ¶ 7.) Trooper Reiser contacted his unit for assistance with the stop, and
Defendant New York State Trooper Patrick Porteus, the only other member of the unit working
that day, arrived. (Id. ¶ 8.) Trooper Porteus did not know who the other Defendants had pulled
over until he arrived on scene. (Id. ¶ 9.)
Trooper Reiser became suspicious of criminal activity during the traffic stop because: (1)
Plaintiff’s car had tinted windows; (2) Plaintiff had an electronic plate cover which Trooper
Reiser knew to be commonly used by people who commit crimes; (3) Plaintiff’s route of travel
(to Connecticut from Newburgh via a southbound road in Poughkeepsie) did not make sense; (4)
Trooper Reiser knew from previous investigations that Plaintiff resided in or was associated with
several residences in the Town of LaGrange in Dutchess County, New York, but Plaintiff had a
Connecticut driver’s license; (5) Trooper Reiser knew that an incarcerated individual had
communicated with Plaintiff about brokering a large amount of cocaine from the incarcerated
individual’s girlfriend to a third party, and Trooper Reiser had conducted another traffic stop in
relation to those phone calls in which he seized over 100 grams of cocaine from a suspect; (6)
Plaintiff had a South Dakota license plate and registration even though he did not live in South
Dakota; (7) within the prior year, Trooper Reiser had arrested the operator of a stolen Mercedes
with a Wisconsin wholesaler license plate that belonged to Plaintiff’s LLC, Loving Fast Cars,
near the same area in Poughkeepsie; and (8) there was an odometer discrepancy, as Plaintiff’s car
had approximately 180,000 miles on it but it had been reported over a year earlier that the car’s
mileage was 190,000. (Id. ¶ 10.)
As such, Trooper Reiser decided to bring his canine, K-9 Dunn, to sniff around the
outside of Plaintiff’s vehicle. (Id. ¶ 11.) K-9 Dunn was in Defendants’ vehicle at the time of the
stop and was trained to alert his handler, Trooper Reiser, to the presence of narcotic odors. (Id.
¶¶ 2, 11-12.) Although Troopers Viti and Porteus had either been K-9 handlers themselves or
observed K-9 handlers in their careers, (ECF No. 44-7 (“Porteus Depo.”) at 11:8-14; ECF No.
44-2 (“Viti Depo.”) at 9:6-8), only a K-9’s assigned handler can determine whether a K-9 alerts,
(Ds’ 56.1 Stmt. ¶ 13). Trooper Reiser walked K-9 Dunn around the outside of Plaintiff’s vehicle
and observed K-9 Dunn’s tail start flailing up and down, a change in his breathing pattern, and
quick snapping movements back and forth by the driver’s side door seam. (Id. ¶¶ 14-15.)
Defendants allege that Trooper Reiser also observed K-9 Dunn scratch on the driver’s side door
seam, which would constitute a final response to the presence of a narcotic odor, (id. ¶ 14), but
Plaintiff disputes this allegation, (P’s 56.1 Resp. ¶¶ 14-15). Trooper Viti, Trooper Porteus and
Plaintiff were all on the other side of the car from K-9 Dunn at the time of the scratch, and thus
Defendants allege they could not see the scratch. (Ds’ 56.1 Stmt. ¶ 16.)
Following the alleged scratch, Defendants searched Plaintiff’s vehicle but did not find
any drugs. (Id. ¶ 17.) Defendants did not issue any tickets, and Plaintiff was allowed to leave.
(Id.) The stop lasted approximately forty minutes. (Id. ¶ 18.)
Procedural History
Plaintiff filed his complaint on August 1, 2024. (ECF No. 4.) After Defendants
answered on November 20, 2024, (ECF No. 11), Plaintiff filed an amended complaint on
February 5, 2025, (ECF No. 15 (“AC”)). Defendants answered on March 24, 2025, (ECF No.
30), and the Court held an initial conference on April 23, 2025, (see Minute Entry dated Apr. 23,
2025). Following discovery, Defendants filed a pre-motion letter in anticipation of their motion
for summary judgment. (ECF No. 39.) The Court held a pre-motion conference on October 30,
2025. (See Minute Entry dated Oct. 30, 2025.) The instant motion followed. (ECF No. 41.)
After Plaintiff filed his opposition, Defendants requested that the Court strike Plaintiff’s
Exhibit 3 as its use in this case violated a Confidentiality Stipulation and Protective Order in
another matter. (ECF No. 50.) The Court granted Defendants’ request and ruled that it would
disregard the exhibit in deciding the motion. (ECF No. 53.)
II. LEGAL STANDARD
Summary judgment is appropriate when “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). “[T]he dispute about a material fact is ‘genuine’ . . . if the evidence is such that
a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).2 A fact is “material” if it “might affect the outcome of the suit
under the governing law . . . . Factual disputes that are irrelevant or unnecessary will not be
counted.” Id. On a motion for summary judgment, “[t]he evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255; see Jeffreys v.
City of N.Y., 426 F.3d 549, 553 (2d Cir. 2005) (“When considering a motion for summary
judgment, a court must construe the evidence in the light most favorable to the nonmoving party,
drawing all inferences in that party’s favor.”). “Assessments of credibility and choices between
2 Unless otherwise indicated, all case quotations omit internal citations, quotation marks,
alterations and footnotes.
conflicting versions of the events are matters for the jury, not for the court on summary
judgment.” Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996).
The movant bears the initial burden of demonstrating “the absence of a genuine issue of
material fact,” and, if satisfied, the burden then shifts to the non-movant to “present evidence
sufficient to satisfy every element of the claim.” Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d
Cir. 2008) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). “The mere existence of a
scintilla of evidence in support of the [non-movant’s] position will be insufficient; there must be
evidence on which the jury could reasonably find for the [non-movant].” Anderson, 477 U.S. at
252. Moreover, the non-movant “must do more than simply show that there is some
metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986), and he “may not rely on conclusory allegations or unsubstantiated
speculation,” Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423, 428 (2d Cir. 2001).
“A party asserting that a fact cannot be or is genuinely disputed must support the
assertion by . . . citing to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations, stipulations . . . ,
admissions, interrogatory answers, or other materials . . . .” Fed. R. Civ. P. 56(c)(1). Where a
declaration is used to support or oppose the motion, it “must be made on personal knowledge, set
out facts that would be admissible in evidence, and show that the . . . declarant is competent to
testify on the matters stated.” Id. 56(c)(4); see Major League Baseball Props., Inc. v. Salvino,
Inc., 542 F.3d 290, 310 (2d Cir. 2008). “If a party fails . . . to properly address another party’s
assertion of fact as required by Rule 56(c), the court may . . . consider the fact undisputed for
purposes of the motion” or “grant summary judgment if the motion and supporting materials –
including the facts considered undisputed – show that the movant is entitled to it.” Fed. R. Civ.
P. 56(e).
III. DISCUSSION
Initial Traffic Stop
Defendants argue that they are entitled to summary judgment on Plaintiff’s false arrest
claim based on the initial traffic stop. (ECF No. 42 (“Ds’ Mem.”) at 6-8; see AC ¶¶ 13-24
(alleging initial stop was not based on probable cause).) Plaintiff argues that Defendants are not
entitled to summary judgment because they did not have probable cause to stop Plaintiff’s
vehicle and there are genuine issues of material fact as to the reason for the stop. (ECF No. 46
(“P’s Opp.”) at 11-12.)
“The temporary detention of an individual during a traffic stop is subject to limitation
under the Fourth Amendment as a ‘seizure’ of the person.” Holeman v. City of New London, 425
F.3d 184, 189 (2d Cir. 2005). “An officer needs reasonable suspicion of a traffic violation to
make a traffic stop.” United States v. Burt, No. 23-6020, 2024 WL 3244380, at *2 (2d Cir. July
1, 2024) (summary order). “The reasonable suspicion standard is not high and is less demanding
than probable cause,” United States v. Martinez-Rodriguez, 798 F. Supp. 3d 289, 295 (N.D.N.Y.
2025), but nevertheless “requires more than an inchoate suspicion or mere hunch,” United States
v. Overton, No. 24-CR-2071, 2025 WL 2753628, at *1 (2d Cir. Sept. 29, 2025) (summary order).
“Reasonable suspicion demands specific and articulable facts which, taken together with rational
inferences from those facts, provide detaining officers with a particularized and objective basis
for suspecting legal wrongdoing.” United States v. Wallace, 937 F.3d 130, 138 (2d Cir. 2019).
Thus, “in assessing reasonable suspicion, courts look at the totality of the circumstances through
the eyes of a reasonable and cautious police officer on the scene, whose insights are necessarily
guided by his experience and training.” Overton, 2025 WL 2753628, at *1.
Defendants Reiser and Viti testified that they stopped Plaintiff because they believed that
his vehicle’s windows were illegally tinted. (Viti Depo. at 15:3-15, 33:20-22, 50:4-6; ECF No.
44-1 (“Reiser Depo.”) at 23:21-24:17.) “Driving a car with excessively tinted windows is illegal
under New York Law.” United States v. Garcia, 279 F. Supp. 2d 294, 299 (S.D.N.Y. 2003)
(citing N.Y. Veh. & Traf. L. § 375(12-a)(b) (windshield and front and rear side windows on
sedan must have light transmittal of at least 70%)). Thus, “officers have probable cause to arrest
an individual for excessively tinted windows [or to stop their vehicle] when they reasonably
believe that the windows are excessively tinted and provide facts on which that conclusion is
based.” Smith v. City of New Rochelle, No. 24-CV-9899, 2026 WL 776028, at *9 (S.D.N.Y.
Mar. 19, 2026).
Testimony that an officer, based on his training and experience, believed that the
windows were illegally tinted because he could not see into the vehicle is sufficient to establish
an objectively reasonable belief. See People v. Biggs, 175 N.Y.S.3d 117, 121 (App. Div. 2022);
Forbes v. Doe, No. 18-CV-6700, 2024 WL 329080, at *5 (W.D.N.Y. Jan. 29, 2024); Mohamed
v. Town of N. Greenbush, No. 13-CV-428, 2016 WL 3448616, at *10 (N.D.N.Y. June 20, 2016);
see also Djangmah v. Falcione, No. 08-CV-4027, 2013 WL 208914, at *11 (S.D.N.Y. Jan. 18,
2013) (officer’s testimony that he believed window tint to be in violation of traffic law because
in his experience vehicle is unlikely to be in compliance if tint is visible from distance was
sufficient to demonstrate objectively reasonable belief), report and recommendation adopted,
2013 WL 1195261 (S.D.N.Y. Mar. 25, 2013); Flowers v. Rustand, No. 11-CV-1801, 2012 WL
4567596, at *3-4 (E.D.N.Y. Oct. 1, 2012) (defendants entitled to summary judgment even
though plaintiff claimed windows were only mildly tinted because plaintiff conceded windows
were tinted and officers are allowed to make reasonable judgment call in concluding tinted
windows were sufficient to warrant stop). Trooper Reiser testified that he observed dark side
tinted windows that he believed were in violation of New York’s traffic laws based on his
training on visually identifying illegal tints and the fact that he could not clearly see the interior
of the vehicle through the windows. (See Reiser Depo. at 10:9-13:5, 23:21-24:17.) Trooper Viti
testified similarly. (See Viti Depo. at 12:5-13:1 (explaining experience with traffic stops and
identifying illegal window tints); id. at 15:3-7 (describing the window tints as “very dark”); id. at
50:4-10 (Viti believed Plaintiff’s windows were illegally tinted based on experience).) Thus,
Defendants provided specific facts on which their conclusion that the windows were excessively
tinted was based, which is sufficient to demonstrate the reasonableness of their belief.
Nevertheless, Plaintiff contests the reasonableness of Defendants’ belief – and
consequently whether Defendants had reasonable suspicion of a traffic violation – because he
disputes the opacity of the tints. Plaintiff and his partner, Cleopatra Sharp, testified that one can
see into the car despite the tints, (ECF No. 45 at 7-28 (“Sharp Depo.”) at 20:22-21:5 (windows
not tinted to point that one cannot see driver)3; ECF No. 45 at 3-6 (“P’s Decl.”) ¶¶ 2, 12 (tint
does not prevent visibility into vehicle)), but that is not sufficient to create a genuine issue of
material fact. First, that the tint was not so dark as to wholly prevent visibility into the vehicle
does not mean that it allowed light transparency of 70% or more, or that an officer, observing the
vehicle from a distance, would not reasonably suspect that it did not. See Djangmah, 2013 WL
3 References to ECF No. 45 generally refer to the page numbers generated by the Court’s
Electronic Case Filing system. Citations to the Sharp Deposition, on pages 7-28 of ECF No. 45,
use the internal pagination of the deposition transcript. Citations to Plaintiff’s Declaration, on
pages 3-6 of ECF No. 45, use the internal paragraph numbers.
208914, at *11; Flowers, 2012 WL 4567596, at *3-4. Second, the body-worn camera footage
from the stop4 specifically shows that the tints were so dark that the interior of the vehicle was
not clearly visible5 and that instead the officers’ reflections were visible in the windows. (See,
e.g., Reiser Body Cam at 19:18:44-52, 19:27:43-45, 19:28:40-29:58, 19:30:44-54, 19:31:11-17,
19:36:36-38; ECF No. 44-5 (“Viti Body Cam”) at 19:18:48-57, 19:36:55-37:49; ECF No. 44-6
(“Porteus Body Cam”) at 19:27:44-46, 19:27:49-51, 19:28:26-27, 19:28:48-49, 19:29:05-09,
19:36:02-03.) This evidence is consistent with the officers’ testimony and is sufficient to
overcome Plaintiff’s and his partner’s testimony that generally one could see into the interior
through the windows. See Monahan v. City of N.Y., No. 20-CV-2610, 2022 WL 954463, at *4
(S.D.N.Y. Mar. 30, 2022) (“[V]ideo evidence may be so clear and unambiguous that a court
deciding a summary judgment motion may rely solely on the video, and need not afford weight
to conclusory or non-credible assertions that are inconsistent with the blatant video evidence.”),
reconsideration denied, 2023 WL 2138535 (S.D.N.Y. Feb. 21, 2023); Tyus v. Newton, No. 13-
CV-1486, 2016 WL 6090719, at *11 (D. Conn. Oct. 18, 2016) (stop did not violate Fourth
Amendment where video established that officer could see that plaintiff had tinted windows);
Bartels v. Inc. Vill. of Lloyd Harbor, 97 F. Supp. 3d 198, 216 (E.D.N.Y. 2015) (granting
summary judgment where photos indisputably supported defendants’ testimony), aff’d sub nom.,
Bartels v. Schwarz, 643 F. App’x 54 (2d Cir. 2016) (summary order); cf. United States v.
Brandon, No. 22-CR-239, 2023 WL 6961937, at *17 (D. Md. Oct. 19, 2023) (officer had
4 The encounter occurred in the early evening in July while it was still light out and the
quality of the footage is good.
5 Indeed, as he approached the car, Trooper Reiser asked Plaintiff to roll down the rear
windows, (ECF No. 44-4 (“Reiser Body Cam”) at 19:18:44-53), apparently to be able to see if
anyone else was in the car. (Citations to the officers’ body camera videos use the time-of-day
stamp in the top right-hand corner of the videos.)
reasonable, articulable suspicion that tint did not comply with state law where photo of vehicle
showed tinting consistent with defendant’s description and body camera video showed officer’s
reflection in window), aff’d, No. 24-4422, 2026 WL 483440 (4th Cir. Feb. 20, 2026) (per
curiam); United States v. Pullen, No. 20-CR-195, 2022 WL 4586177, at *3-4 (E.D. Cal. Sept.
29, 2022) (officers had reasonable suspicion vehicle had illegally tinted windows where videos
from body cam footage and photos showed tinting and officers testified that they could not see
clearly into vehicle and only saw silhouettes), aff’d, No. 23-10036, 2024 WL 2843036 (9th Cir.
June 5, 2024).6
Plaintiff also argues that Defendants stopped him not because of his tints, but because he
is a Black man and because they recognized him and decided to pull him over to search him.
(P’s Opp. at 6, 11-12; P’s Decl. ¶¶ 5, 10-13.) As an initial matter, that Defendants stopped
Plaintiff because of his race is pure speculation. See Hereford v. City of Hemet, 791 F. Supp. 3d
1126, 1145-46 (C.D. Cal. 2025) (that plaintiff was “a black man driving a newer car in a
predominately African American neighborhood” was not sufficient to dispute defendant’s
uncontroverted testimony that he noticed plaintiff’s missing license plate when he drove past
him); cf. Brannon v. Delta Airlines, Inc., 434 F. Supp. 3d 124, 134 (S.D.N.Y. 2020) (plaintiff
“relies on pure speculation and conjecture to assert that, because he is an African-American man,
the [defendants’] actions . . . must have been motivated by their discriminatory biases against
African Americans”). And it is undisputed that Troopers Reiser and Viti had never met Plaintiff
before this stop, and that Trooper Reiser, who initiated the stop, did not know what Plaintiff
6 Even if one could see into Plaintiff’s car if one peered inside from close up, that would
not render unreasonable the officers’ suspicion based on what they could perceive while the
vehicle was in motion and they decided to initiate the stop. But in any event, the video footage
makes clear that even close up, the windows were so dark that they reflected the officers’ images
even in daylight.
looked like before he pulled him over. (See Reiser Depo. at 31:9-13; ECF No. 44-3 (“P’s
Depo.”) at 51:10-18.) Thus, there is no evidence to support Plaintiff’s claim that Defendants
initiated the stop because they saw him through the windows or recognized him. (See P’s Decl.
¶¶ 5, 12.) Although Trooper Porteus had interacted with Plaintiff before this stop, (P’s Depo. at
17:3-22:20; Porteus Depo. at 16:19-25), he was not present when the other Defendants initiated
the stop, (P’s Depo. at 22:3-13, 33:18-24; Reiser Depo. at 35:14-36:14).7 Plaintiff simply has no
facts supporting his allegation that his skin color motivated the stop. See Viator v. City of
Rochester, No. 02-CV-6453, 2005 WL 1876064, at *6 (W.D.N.Y. Aug. 8, 2005) (“No
reasonable inference can be made from [the fact plaintiff is Black] alone that the sole reason for
the traffic stop was the color of his skin.”).
To the extent Plaintiff contends that the officers recognized Plaintiff and wanted to search
him or his car for evidence of a crime based on “prior encounters” or “the information they had
on [him],” (P’s Decl. ¶¶ 10, 13), “the actual reason [Plaintiff] was stopped by the police is
irrelevant to determining whether adequate probable cause supported the stop, as whether a
traffic stop is reasonable under the Fourth Amendment does not depend on the actual motivations
of the individual officers involved,” United States v. Lucas, No. 19-3937-CR, 2021 WL
3700944, at *1 n.1 (2d Cir. Aug. 20, 2021) (summary order). As such, “a vehicle stop is
constitutionally reasonable when an officer has observed a traffic violation, even if the officer
subjectively held an ulterior motive to make the stop” – in other words, even if the stop is
pretextual. Robles v. Salvati, 640 F. Supp. 3d 224, 229 (D. Conn. 2022) (citing Whren v. United
7 Trooper Porteus is also entitled to summary judgment on Plaintiff’s false arrest claim
based on the initial stop because he was not personally involved in the decision to stop Plaintiff,
as it is undisputed that he did not arrive on scene until later. (P’s Depo. at 22:3-8, 33:18-24;
Reiser Depo. at 35:14-36:14; Porteus Depo. at 16:12-15; P’s Opp. at 5.)
States, 517 U.S. 806, 810, 813 (1996)); see Forbes, 2024 WL 329080, at *5 (“[S]topping a
vehicle based upon probable cause or reasonable suspicion that a vehicle is being operated with
tinted windows in violation of § 375(12-a)(b)(2), even if the officers’ true motivations are driven
by a desire to investigate other illegal activity, complies with the Fourth Amendment.”).
Accordingly, because no reasonable jury could find that Defendants did not have at least
reasonable suspicion that Plaintiff’s windows were tinted in violation of New York’s traffic laws,
the initial stop would not violate Plaintiff’s Fourth Amendment rights even if it were a pretext to
investigate something else.
In the alternative, even if Defendants lacked reasonable suspicion of a traffic violation,
they are entitled to qualified immunity.
A defendant is entitled to qualified immunity if (1) the defendant’s conduct does
not violate clearly established statutory or constitutional rights of which a
reasonable person would have known, or (2) it was objectively reasonable for the
defendant to believe that his actions were lawful at the time of the challenged act.
Brandon v. Kinter, 938 F.3d 21, 39 (2d Cir. 2019). “‘Clearly established law’ should not be
defined ‘at a high level of generality,’” and while the court does not need to identify a case
“directly on point, . . . existing precedent must have placed the statutory or constitutional
question beyond debate.” White v. Pauly, 580 U.S. 73, 79 (2017) (quoting Ashcroft v. al-Kidd,
563 U.S. 731, 742 (2011)). “In determining if a right is clearly established, this Court looks to
whether (1) it was defined with reasonable clarity, (2) the Supreme Court or the Second Circuit
has confirmed the existence of the right, and (3) a reasonable defendant would have understood
that his conduct was unlawful.” Nat’l Rifle Ass’n of Am. v. Vullo, 144 F.4th 376, 390 (2d Cir.
2025). “An official is thus qualifiedly immune from liability unless, under the particular
circumstances the official faced, any reasonable official would have known for certain that the
conduct was unlawful under then-existing precedent.” Id. Thus, “‘[w]hen properly applied,
[qualified immunity] protects all but the plainly incompetent or those who knowingly violate the
law.’” Matusak v. Daminski, 165 F.4th 702, 711 (2d Cir. 2026) (quoting al-Kidd, 563 U.S. at
743); see Berg v. Kelly, 897 F.3d 99, 109 (2d Cir. 2018). “[Q]ualified immunity’s protections
apply regardless of whether the government official’s error is a mistake of law, a mistake of fact,
or a mistake based on mixed questions of law and fact. Any mistake, however, must be
reasonable.” Matusak, 165 F.4th at 711.
When police officers “conduct a limited investigative detention, they have qualified
immunity so long as they had at least arguable reasonable suspicion to warrant the limited
detention.” See Kistner v. City of Buffalo, No. 21-CV-526, 2023 WL 144915, at *5 (W.D.N.Y.
Jan. 10, 2023) (emphasis in original), appeal dismissed, No. 22-3058, 2024 WL 2525332 (2d
Cir. May 24, 2024) (summary order); Ozga v. Elliot, 150 F. Supp. 3d 178, 189 (D. Conn. 2015)
(same).
A police officer has arguable reasonable suspicion if either (a) it was objectively
reasonable for the officer to believe that reasonable suspicion existed, or (b)
officers of reasonable competence could disagree on whether the
reasonable suspicion test was met. Put another way, an arresting officer will find
protection under the defense of qualified immunity unless no reasonably
competent officer could have concluded, based on the facts known at the time of
arrest, that reasonable suspicion existed.
Stewart v. Davis, 738 F. Supp. 3d 361, 368 (S.D.N.Y. 2024). Here, the body camera footage
shows that the windows were dark enough that it was objectively reasonable for the officers to
believe reasonable suspicion of a traffic violation existed. Cf. Holeman, 425 F.3d at 191 n.2
(tinted windows would justify stop if so dark that officer, acting reasonably, would have
suspected traffic violation). Thus, Defendants had at least arguable reasonable suspicion and are
entitled to qualified immunity.
Defendants are therefore entitled to summary judgment on Plaintiff’s Fourth Amendment
claim based on the initial stop.
Extension of Traffic Stop - Dog Sniff
Plaintiff also challenges Defendants’ conduct beyond the initial stop, as he alleges
Defendants unreasonably prolonged the stop, including through the dog sniff, in violation of the
Fourth Amendment. (P’s Opp. at 12-13, 16-17.) Defendants argue they are entitled to summary
judgment on this claim because they had reasonable suspicion of criminal activity which justified
the extension of the traffic stop. (Ds’ Mem. at 8-9.)
“A seizure justified only by a police-observed traffic violation[] . . . becomes unlawful if
it is prolonged beyond the time reasonably required to complete the mission of issuing a ticket
for the violation.” Rodriguez v. United States, 575 U.S. 348, 350-51 (2015). A traffic stop may
only be extended for investigatory purposes beyond traffic-related tasks if an officer develops
reasonable suspicion of criminal activity supported by specific and articulable facts. See United
States v. Foreste, 780 F.3d 518, 523 (2d Cir. 2015); United States v. Caraballo, No. 20-CR-137,
2024 WL 1521614, at *4 (D. Conn. Apr. 9, 2024). “[A] dog sniff is not fairly characterized as
part of [an] officer’s traffic mission,” and instead “is a measure aimed at detecting evidence of
ordinary criminal wrongdoing.” Rodriguez, 575 U.S. at 355-56. Thus, in order to conduct a dog
sniff of a vehicle following the conclusion of the traffic-related tasks, officers must have
reasonable suspicion of criminal activity. See United States v. Zayas, No. 22-CR-178, 2022 WL
16737223, at *8 (S.D.N.Y. Nov. 7, 2022); United States v. Frith, No. 02-CR-733, 2017 WL
2266986, at *2 (S.D.N.Y. May 1, 2017).
Defendants do not dispute that the dog sniff here extended the stop beyond the time
required to complete the tasks related to the justification for the stop: the window tints. Instead,
Defendants argue they had reasonable suspicion to extend the stop to complete the K-9 sniff
based on the following facts: (1) Plaintiff had illegally tinted windows; (2) Plaintiff’s vehicle
had an electronically-operated license plate cover, which Trooper Reiser testified is commonly
used by people who commit crimes; (3) Plaintiff’s route of travel did not make sense to Trooper
Reiser; (4) Plaintiff had a Connecticut driver’s license but Trooper Reiser knew that Plaintiff
resided in or was associated with several residences in the Town of LaGrange, New York; (5) an
incarcerated individual had communicated with Plaintiff about brokering a large amount of
cocaine from the incarcerated individual’s girlfriend to a third party, and Trooper Reiser
conducted another traffic stop in relation to those phone calls in which he seized a suspect with
over 100 grams of cocaine; (6) Plaintiff had a South Dakota license plate and registration; (7) in
the same area less than a year prior, Trooper Reiser had arrested the operator of a stolen
Mercedes bearing a Wisconsin wholesaler license plate belonging to Plaintiff’s LLC; and (8)
there was an odometer discrepancy, which Trooper Reiser testified is a sign of criminal activity.
(Ds’ Mem. at 2-3, 8-9.) Plaintiff does not dispute these facts, but rather argues that his plate
cover, route of travel, Connecticut license plate, and place of residence, as well as the odometer
discrepancy, are not themselves illegal, and Defendants did not have any alert that Plaintiff’s
vehicle was stolen. (P’s Opp. at 13; see P’s 56.1 Resp. ¶ 10 (denying allegation that Trooper
Reiser gained reasonable suspicion based on these facts but stating only that plate cover is not
illegal and illegal tint does not provide reasonable suspicion to search).)
As explained, “[r]easonable suspicion must be based on specific and articulable facts, and
courts must look at the totality of the circumstances of each case to see whether the detaining
officer has a particularized and objective basis for suspecting legal wrongdoing.” Frith, 2017
WL 2266986, at *2. “While the court cannot merely defer to police officers’ judgment in
assessing reasonable suspicion, it must view the totality of the circumstances through the eyes of
a reasonable and cautious police officer on the scene.” United States v. Lloyd, No. 17-CR-119,
2018 WL 4627149, at *6 (W.D.N.Y. Apr. 9, 2018), report and recommendation adopted sub
nom., United States v. Dunnigan, No. 17-CR-119, 2018 WL 3196953 (W.D.N.Y. June 29, 2018);
see Zayas, 2022 WL 16737223, at *9 (“Factors that give rise to reasonable suspicion are
considered and weighed not in terms of library analysis by scholars, but as understood by those
versed in the field of law enforcement.”). Factors that are not illegal by themselves may provide
reasonable suspicion when taken together. United States v. Sokolow, 490 U.S. 1, 9 (1989).
First, Plaintiff’s illegal tints and electronic plate covers support reasonable suspicion of
criminal activity beyond the traffic violation itself. Tinted windows may contribute to a finding
a reasonable suspicion. See, e.g., Forbes, 2024 WL 329080, at *6 (on plaintiff’s motion for
summary judgment, defendants set forth facts showing genuine issue as to whether officers had
reasonable suspicion of criminal activity where they could not see the occupants of vehicle
through tinted windows); United States v. Holloway, No. 24-CR-238, 2025 WL 2977120, at *20
(M.D. Pa. Oct. 21, 2025) (“[A d]ark window tint and obscured license plates can help
establish reasonable suspicion that the vehicle contains drugs or other contraband.”). And courts
in other circuits have found that license plate covers support a finding of reasonable suspicion
where officers testify that, based on their experience, such covers are used to evade law
enforcement. See Holloway, 2025 WL 2977120, at *20; United States v. Glenn, 204 F. Supp. 3d
893, 903 (M.D. La. 2016), aff’d, 931 F.3d 424 (5th Cir. 2019); see also Frith, 2017 WL
2266986, at *3 (that plaintiff was driving car with bar code sticker removed from rental car
window supported finding of reasonable suspicion where officer testified that in his experience,
people who remove such stickers do so to avoid scrutiny). Here, Trooper Reiser testified that
tinted windows and Plaintiff’s electronic plate covers are indicators that a vehicle is being used
in connection with criminal activity. (Reiser Depo. at 27:3-9, 42:19-22.) Although Trooper Viti
testified that the tints did not play a role in establishing reasonable suspicion for the dog sniff,
(Viti Depo. at 49:24-50:3), he did testify that electronic plate covers are indicators of criminal
activity, (id. at 30:5-25, 31:13-17, 32:7-17), and later testified that the other factors in
combination with the tinted windows led to a higher level of suspicion, (id. at 50:11-17).8 Thus,
these factors reasonably contributed to the officers’ suspicion.
Plaintiff’s route of travel also reasonably contributed to Defendants’ reasonable
suspicion. The Second Circuit has “long recognized that reasonable suspicion may be based, at
least in part, on an implausible story, an implausible explanation of the purpose of a trip, or a
story that simply does not ring true.” United States v. Santillan, 902 F.3d 49, 57 (2d Cir. 2018).
Although an illogical travel route standing alone has been found insufficient to establish
reasonable suspicion, see United States v. Parks, No. 19-CR-87, 2022 WL 1819383, at *10
(W.D.N.Y. June 3, 2022) (no reasonable suspicion where only fact officer considered suspicious
was illogical travel route), it may contribute to a finding of reasonable suspicion when
considered together with other factors, see, e.g., United States v. Gonzalez, No. 22-CR-40119,
2023 WL 6058876, at *9 (D.S.D. Sept. 18, 2023) (“[A] confusing or illogical itinerary may give
rise to reasonable suspicion to extend a stop and deploy a drug dog.”), aff’d, 133 F.4th 819 (8th
Cir. 2025); United States v. Rizzo, 839 F. App’x 164, 165-66 (9th Cir. 2021) (reasonable
suspicion supported by fact that defendant took route appearing inconsistent with possible
innocent explanation); United States v. Torres, 786 F. App’x 726, 738 (10th Cir. 2019) (totality
8 Trooper Viti also testified that he was not the officer responsible for making the
determination about whether to use the K-9. (See Viti Depo. at 27:4-16, 33:4-12; see also
Porteus Depo. at 35:13-14 (stating it was up to Trooper Reiser on how stop was conducted).)
of circumstances including that defendant was traveling on an unusually southerly route to reach
state believed to be his destination based on state listed on driver’s documents may provide
officer reasonable suspicion); Moore v. Bitca, No. 19-CV-35, 2020 WL 5821378, at *17-19 (D.
Vt. Sept. 30, 2020) (totality of circumstances, which included route of travel officer found
illogical, established that defendant had reasonable suspicion and lawfully prolonged stop).
Thus, Trooper Reiser’s assessment that Plaintiff was taking an unusual or illogical route to reach
his stated destination contributes to reasonable suspicion. (See Reiser Depo. at 27:10-22; Viti
Depo. at 34:23-35:9, 49:5-10.)
Similarly, that Plaintiff had a Connecticut driver’s license and represented to Trooper
Reiser that he lived in Connecticut when Trooper Reiser had reason to believe he lived in New
York, (Reiser Depo. at 44:3-8), contributed to the officers’ reasonable suspicion, see Santillan,
902 F.3d at 57 (reasonable suspicion may be based on story that does not ring true); Walker v.
Carrozzo, 664 F. Supp. 3d 490, 511 (S.D.N.Y. 2023) (defendant’s lies about travel which
officers knew to be false combined with other factors may contribute to reasonable suspicion to
warrant detention); cf. Chambers v. Lombardi, No. 17-CV-7557, 2020 WL 2097558, at *8
(S.D.N.Y. May 1, 2020) (officer had probable cause to search vehicle based on surveillance and
answers plaintiff gave to officers regarding origin and destination of his trip which officers knew
to be false); United States v. Dunnigan, No. 17-CR-119, 2019 WL 5257572, at *8 (W.D.N.Y.
Oct. 17, 2019) (officers had probable cause to search vehicle based on totality of circumstances
including defendant’s statements about his travel plans that law enforcement knew to be false),
aff’d, No. 23-6353, 2025 WL 470300 (2d Cir. Feb. 12, 2025) (summary order).
Further, Trooper Reiser testified that he was aware that an incarcerated individual had
communicated with Plaintiff about brokering a large amount of cocaine from the incarcerated
individual’s girlfriend to a third party. (Reiser Depo. at 45:6-13.) Investigative knowledge
combined with other factors supports reasonable suspicion. See United States v. Churchill, 792
F. App’x 39, 41-42 (2d Cir. 2019) (summary order) (decision to extend traffic stop to investigate
burglary supported by numerous objective facts including that defendant had previously been
investigated and arrested in connection with property crimes); United States v. Hernandez, No.
23-CR-109, 2025 WL 3647876, at *6 (W.D.N.Y. Oct. 10, 2025) (officers had reasonable
suspicion based on knowledge that defendants may have been traveling for purpose of
transporting narcotics plus officers’ observations and thus extension of stop to conduct K-9
search was lawful), report and recommendation adopted, 2025 WL 3643698 (W.D.N.Y. Nov. 6,
2025); Zayas, 2022 WL 16737223, at *9-10 (investigative knowledge plus defendants’ nervous
behavior supported reasonable suspicion and extension of stop for K-9 search). Trooper Reiser’s
knowledge of a previous narcotics investigation involving Plaintiff, combined with the other
factors, could reasonably contribute to his reasonable suspicion of criminal activity.
Additionally, out-of-state license plates, in combination with other factors, may also
contribute to reasonable suspicion. See, e.g., Brace v. Johnson, No. 22-590, 2023 WL 2027274,
at *1-2 (2d Cir. Feb. 16, 2023) (summary order) (officers had reasonable suspicion to stop truck
where it had out-of-state license plate despite New York state sticker in window and officers
testified that it was common for stolen vehicles to have out-of-state plates); United States v.
Bayless, 201 F.3d 116, 133-34 (2d Cir. 2000) (sometimes innocuous factor of out-of-state license
plates took on added significance when joined to furtive loading of car and strengthened
likelihood of drug transaction). This fact takes on added significance here where Trooper Reiser
knew that Plaintiff lived in New York but had a Connecticut driver’s license and South Dakota
plates, and Trooper Reiser had recently arrested another individual in the same area in a stolen
car with out-of-state wholesaler license plates owned by Plaintiff’s LLC. (Reiser Depo. at 28:23-
29:11, 43:21-44:8, 45:13-17.) It is reasonable for an officer to infer from knowledge of illicit
activity in the area that an individual found in similar circumstances may also be engaged in that
same unlawful activity. Cf. Moore, 2020 WL 5821378, at *17 (tip from month prior about
suspected drug dealing in same area where plaintiff was found with another vehicle was
sufficient to support reasonable concern that plaintiff may have been present for drug dealing
purposes).
It was also reasonable for the officers to rely on the odometer discrepancy as a factor
contributing to reasonable suspicion. Courts have found that discrepancies in a vehicle’s mileage
may provide an officer with reasonable suspicion, cf. United States v. Herrera, No. 10-CR-37,
2011 WL 739088, at *9 (M.D. Ala. Feb. 24, 2011) (high mileage on newly registered vehicle,
among other factors, provided officer with reasonable suspicion justifying prolonged traffic
stop), and the Second Circuit has upheld a finding of reasonable suspicion where officers
testified that they believed the plaintiff’s vehicle exhibited signs of a stolen vehicle or other
criminal activity based on their training and experience, see Brace, 2023 WL 2027274, at *2
(officers reasonably concluded vehicle violated traffic code where they testified that in their
experience plaintiff’s vehicle exhibited signs of stolen vehicle). Similarly, here, the officers
testified that based on their experience, an odometer discrepancy is a sign of a stolen vehicle or
other related crimes. (Reiser Depo. at 29:12-30:6; see Viti Depo. at 36:4-24.) Plaintiff offers no
facts to dispute the odometer discrepancy or the officers’ testimony.9
9 While the suspicions about the car being stolen would not justify the dog sniff, which is
aimed at narcotics activity, it would justify extending the stop for further inquiry.
Although Plaintiff argues that it is not illegal to do many of the things that Defendants
cite to support reasonable suspicion, “the availability of an innocent explanation does not create
an issue of fact as to the reasonableness of the suspicion.” Sutton v. Duguid, No. 05-CV-1215,
2007 WL 1456222, at *6 (E.D.N.Y. May 16, 2007); see Churchill, 792 F. App’x at 42 (“Conduct
that is as consistent with innocence as with guilt may provide the basis for reasonable suspicion
where there is some indication of possible illicit activity.”). When taken together, such facts
provide a sufficient basis for finding reasonable suspicion. See Lilly v. Town of Lewiston, 449 F.
Supp. 3d 190, 198 (W.D.N.Y. 2020) (“It is sometimes the case that a police officer may observe
a series of acts, each of them perhaps innocent in itself, but which taken together warrant further
investigation.”); Frith, 2017 WL 2266986, at *3 (even though facts may be susceptible to
innocent explanation and not dispositive on their own, taken together they provide sufficient
basis for finding reasonable suspicion). Accordingly, based on the facts outlined by Trooper
Reiser and explained above, there is no genuine dispute as to whether the officers had reasonable
suspicion to prolong the stop and undertake the K-9 sniff.
Plaintiff also argues that the facts Trooper Reiser listed as his basis for reasonable
suspicion were unrelated to the prolongation of the stop because this was a “walled-off” stop.
(P’s Opp. at 15.) “A ‘walled-off’ stop occurs when a police officer lawfully stops a vehicle for a
traffic violation but does so at the request of narcotics investigators who suspect that the
occupants are involved in drug trafficking.” See Caraballo, 2024 WL 1521614, at *2 n.1. Even
if the actual motivation of the officers was relevant, which (as discussed above) it is not, there is
no evidence that this was a walled-off stop. None of the Defendants testified that they stopped
Plaintiff pursuant to a narcotics investigation and Plaintiff provides nothing to back up this
allegation.
Additionally, Plaintiff argues that the officers did not have reasonable suspicion because
they testified that they had “founded suspicion” rather than reasonable suspicion to detain
Plaintiff. (P’s Opp. at 14-16.)10 But this testimony is irrelevant, because “the [reasonable
suspicion] inquiry is an objective one, so that the issue is not centered on [Defendants’]
subjective motivation but rather whether a reasonable officer would suspect unlawful activity
under the totality of the circumstances.” Forbes, 2024 WL 329080, at *7. Courts are not bound
by the beliefs of the arresting officers as to whether they had reasonable suspicion. Cf. United
States v. Tramontana, 460 F.2d 464, 466-67 (2d Cir. 1972) (finding, based on the facts available
to the officers at the moment of arrest, that “[the officer’s] suspicions properly rose to
the level of probable cause, regardless of his own legal characterization of his actions”);
Sentementes v. Lamont, No. 20-CV-1826, 2023 WL 1818544, at *4 (D. Conn. Feb. 8, 2023)
(“[A]n officer’s subjective belief as to whether probable cause existed is irrelevant.”); Ashley v.
City of N.Y., No. 14-CV-5559, 2017 WL 2972145, at *6 n.5 (E.D.N.Y. July 12, 2017)
(“[Defendant]’s subjective belief as to whether, and at what point, he had probable cause to make
the arrest is irrelevant . . . .”), aff’d in part, vacated in part, remanded, 992 F.3d 128 (2d Cir.
2021); DiStefano v. Sedita, No. 11-CV-1125, 2014 WL 349251, at *7 (E.D.N.Y. Jan. 31, 2014)
(that officer did not believe he had probable cause to arrest was irrelevant because an officer’s
subjective belief is immaterial to the court’s probable cause inquiry). Thus, that Defendants
testified they had “founded suspicion” does not create a genuine issue of material fact as to
whether they in fact had reasonable suspicion.
10 Under New York state law, “founded suspicion” permits an officer to inquire about
possible criminal activity without using force, whereas reasonable suspicion is required for a
forcible stop and detention of a suspect. People v. De Bour, 40 N.Y.2d 210, 223 (1976). New
York law is irrelevant here, as Plaintiff brings only federal claims.
But even if Defendants did not have reasonable suspicion to prolong the stop by bringing
K-9 Dunn to sniff the exterior of the vehicle, they at least had arguable reasonable suspicion to
do so, and are therefore entitled to qualified immunity. (See Ds’ Mem. at 12 (arguing
Defendants entitled to qualified immunity).) As discussed above, when police officers “conduct
a limited investigative detention, they have qualified immunity so long as they had at least
arguable reasonable suspicion to warrant the limited detention.” See Kistner, 2023 WL 144915,
at *5 (emphasis in original); Ozga, 150 F. Supp. 3d at 189 (same). “Certainly no clearly
established case law holds that the combination of the[] facts [relied upon by Trooper Reiser] is
not enough; and many cases find [reasonable suspicion] where the police draw comparable
inferences from facts of comparable suggestiveness.” Holeman, 425 F.3d at 191; see Lilly v.
Stafford, No. 18-CV-2, 2021 WL 3741590, at *7 (W.D.N.Y. Aug. 24, 2021) (“There is no
clearly established law such that would compel every reasonable officer to conclude that
[Defendant] lacked arguable reasonable suspicion on the circumstances presented and violated
Plaintiff’s Fourth Amendment rights.”). Thus, for the reasons explained above, there is no
genuine issue of material fact as to whether Trooper Reiser’s belief that he had a sufficient basis
to conduct a K-9 sniff was objectively reasonable. At the very least, officers of reasonable
competence could disagree on whether the reasonable suspicion test was met.
Plaintiff argues that Defendants are not entitled to qualified immunity because they acted
in bad faith by targeting Plaintiff and extending the stop without reasonable suspicion or even
founded suspicion. (P’s Opp. at 17.) He appears to argue that the officers acted in bad faith
because they used the standard of founded suspicion while knowing that they needed reasonable
suspicion. (Id. at 16.) But as already explained, the officers’ subjective belief about whether
they had reasonable suspicion is irrelevant to the objective reasonable suspicion inquiry, and the
standard for qualified immunity is likewise objective. Thus, that Defendants testified that they
had founded suspicion does not suggest bad faith, negate reasonable suspicion, or disqualify
them from qualified immunity.
Accordingly, for the reasons set forth above, Defendants are entitled to summary
judgment on Plaintiff’s false arrest claim based on the extension of the stop and the dog sniff.
Search of Plaintiff’s Vehicle
Plaintiff also brings claims for false arrest and unreasonable search and seizure based on
the search of his vehicle. (See, e.g., AC ¶¶ 37-38, 51-67.)11 Defendants argue they are entitled
to summary judgment on this claim because K-9 Dunn alerted to the presence of a narcotic odor,
giving the officers probable cause to search the vehicle. (Ds’ Mem. at 9-12.) Plaintiff argues
there is no evidence that K-9 Dunn alerted and that Defendants are acting in bad faith by falsely
claiming that he did. (P’s Opp. at 13-14, 15-17.)
Under the automobile exception to the warrant requirement, police may conduct a
warrantless search of a vehicle if probable cause exists to believe it contains contraband or other
evidence of a crime. See United States v. Gaskin, 364 F.3d 438, 456 (2d Cir. 2004). “A canine’s
positive indication for narcotics is sufficient to provide probable cause.” Zayas, 2022 WL
16737223, at *10; see Florida v. Harris, 568 U.S. 237, 246-47 (2013) (“If a bona fide
organization has certified a dog after testing his reliability in a controlled setting, a court can
presume (subject to any conflicting evidence offered) that the dog’s alert provides probable
cause to search.”).
11 The false arrest claim seems to be based on Plaintiff’s detention during the search of
the car following the dog sniff.
Trooper Reiser testified that K-9 Dunn alerted to the presence of a narcotic odor. (Reiser
Depo. at 33:6-16, 39:2-25.) Specifically, Trooper Reiser testified that K-9 Dunn’s tail pointed
straight up and wagged, his head snapped backwards, he did a more detailed search around the
door seam of Plaintiff’s vehicle, and he then scratched at the bottom of the door seam. (Id. at
33:6-16, 39:2-40:21.) It is undisputed that K-9 Dunn was a member of the New York State
Police Canine Unit and was trained to alert his handler, Trooper Reiser, to the presence of
narcotic odors. (Ds’ 56.1 Stmt. ¶¶ 12, 19; see ECF No. 44-9 (detailing K-9 Dunn’s training and
certifications).) But Plaintiff disputes that K-9 Dunn scratched the door seam, arguing that no
scratch can be seen on the body camera footage, and that the other Defendants did not observe an
alert when they watched the video. (P’s 56.1 Resp. ¶¶ 14-17; P’s Opp. at 16-17.)
Plaintiff is correct that the dog’s scratch is not visible on Trooper Reiser’s body cam
video, but his argument that Defendants did not observe an alert is misleading. Trooper Porteus
testified that he did not see K-9 Dunn scratch when he watched the body camera footage at his
deposition, but he explained that he could not see all of K-9 Dunn’s body because the video is
cut off. (See Porteus Depo. at 42:23-43:2, 44:10-20, 45:24-46:5.) Trooper Porteus further
testified that he was not able to discern whether K-9 Dunn alerted because “it’s K-9 specific to
[his] handler.” (Id. at 45:16-23; see id. at 26:10-12, 30:11-24.) Trooper Reiser similarly testified
that only a K-9’s certified handler can determine whether the dog alerts, and that the scratch was
not captured in the frame of the video. (Reiser Depo. at 17:8-18:2, 40:22-41:4, 47:6-18.)
Indeed, neither the dog’s paws nor the bottom of the car door, where the dog allegedly scratched,
(see Reiser Depo. at 39:2-25), are visible on the body cam footage at the relevant time, (see
Reiser Body Cam. at 19:31:26-29). Further, although Trooper Viti testified that he did not see
K-9 Dunn scratch when he reviewed the video, he also testified that he was speaking only in the
sense of a regular dog scratch and that he was not qualified to testify as to whether a K-9 had
alerted because he was not trained in such alerts. (Viti Depo. at 20:23-21:10, 43:4-25, 46:13-
47:4.) Plaintiff offers no evidence to rebut any of this testimony.
And while the Court may not weigh evidence or make credibility findings, and thus must
disregard evidence favorable to the moving party that a jury is not required to believe, such as
the testimony of an interested witness like Trooper Reiser, Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 151 (2000); Moll v. Telesector Res. Grp., Inc., 94 F.4th 218, 227-28
(2d Cir. 2024), a Court may nonetheless grant summary judgment where the non-moving party
offers no evidence to counter that testimony or otherwise create a genuine issue of material fact,
see Bassi v. N.Y. Med. Coll., No. 19-CV-7542, 2023 WL 2330478, at *10 n.4 (S.D.N.Y. Mar. 2,
2023) (“[T]he testimony of an interested witness does not necessarily preclude a grant of
summary judgment, especially where that testimony is uncontradicted and unimpeached.”), aff’d,
No. 23-278, 2024 WL 3717317 (2d Cir. Aug. 8, 2024) (summary order); Keeney v. Brinkman,
No. 16-CV-167, 2019 WL 580586, at *2 (W.D.N.Y. Feb. 13, 2019) (“[N]ot every motion
for summary judgment based solely on testimony from interested witnesses must be denied.
Rather, the party opposing summary judgment must be able to point to some facts which may or
will entitle him to judgment, or refute the proof of the moving party in some material portion.”);
Kendrick v. Greenburgh Hous. Auth., No. 07-CV-5859, 2011 WL 1118664, at *8 (S.D.N.Y.
Mar. 22, 2011) (plaintiff’s claim must fail even if court disregards testimony of interested
witnesses because plaintiff did not set forth any evidence to support his claim). The non-moving
party “may not rely on mere speculation or conjecture as to the true nature of the facts,” and
must do more than “recite the incantation, ‘Credibility,’ and have a trial on the hope that a jury
may disbelieve factually uncontested proof.” Keeney, 2019 WL 580586, at *2-3; see Valenzuela
v. Putnam County, No. 17-CV-8923, 2020 WL 5370195, at *5 (S.D.N.Y. Sept. 8, 2020) (“The
non-movant must do more than simply show that there is some metaphysical doubt as to the
material facts, and may not rely on conclusory allegations or unsubstantiated speculation.”).
Here, Plaintiff testified that he did not see K-9 Dunn scratch the car, (P’s Depo. at 24:4-7,
127:16-128:5), but he does not dispute that he was standing on the other side of the car such that
he was unable to see K-9 Dunn at the time of the alleged scratch, (P’s 56.1 Resp. ¶ 16), and it
seems clear from the body camera footage that Plaintiff would not have been able to see K-9
Dunn from where he was standing, (see Viti Body Cam at 19:34:53, 19:44:42 (showing view of
car and Trooper Reiser behind car from sidewalk where Plaintiff was standing)). The video also
shows that Plaintiff was not looking at the car for the duration of the dog sniff, (see Porteus Body
Cam at 19:30:37-31:35), including when Trooper Reiser says the dog alerted, (compare id. at
19:31:08-28 (Plaintiff not looking at car), with Reiser Body Cam at 19:31:08-28 (showing when
K-9 allegedly alerted).) He does not present any other evidence to refute Trooper Reiser’s
testimony; he merely argues that Defendants misrepresented that K-9 Dunn scratched, which is
insufficient. See Keeney, 2019 WL 580586, at *3 (“Simply asserting that a party is lying is
insufficient to create a genuine issue of material fact.”). Although Plaintiff also points to the
video, the video does not refute Trooper Reiser’s testimony, because K-9 Dunn is not fully
visible during the entire exterior sniff. (See Reiser Body Cam. at 19:30:36-31:29.) Thus, that the
video does not show the scratch does not mean it did not occur or that Trooper Reiser
misrepresented the facts, and Plaintiff’s hope that the jury might disbelieve Trooper Reiser’s
testimony does not create an issue of fact. See Anderson, 477 U.S. at 256-57 (“discredited
testimony” not normally sufficient basis for drawing contrary conclusion; “[i]nstead, the plaintiff
must present affirmative evidence in order to defeat a properly supported motion for summary
judgment”); Gill v. Arab Bank, PLC, 893 F. Supp. 2d 542, 553 (E.D.N.Y. 2012) (Weinstein, J.)
(inference based on disbelief of witness does not alone satisfy party’s burden to produce facts
necessary to defeat motion for summary judgment); Brawner v. Allstate Indem. Co., No. 07-CV-
482, 2008 WL 2157011, at *3 (E.D. Ark. May 21, 2008) (“[D]isbelief alone does not provide the
substantive factual evidence required to sustain . . . a . . . claim on summary judgment.”).
The Fourth Circuit held that a defendant officer was entitled to summary judgment in a
similar case in which the plaintiff failed to present evidence rebutting the officer’s testimony that
a K-9 alerted on his vehicle. See Varner v. Roane, 981 F.3d 288, 294-95 (4th Cir. 2020). There
the officer testified that his K-9 gave a positive alert by pressing his nose against the car, which
is how the dog was trained to alert to drugs. See id. at 294. The plaintiff asserted, however, that
the dog only alerted when the officer slapped the side of the vehicle. See id. The court found
that plaintiff’s assertion was speculative and unsupported, because he knew nothing about drug-
sniffing dogs generally nor about this particular K-9’s training and was not standing in a position
where he could even see the alert that the officer testified had occurred. See id. Because
plaintiff’s assertion was not based on personal observation, his unsupported speculation could
not rebut the officer’s testimony that the K-9 alerted on the side of the car facing away from the
plaintiff. See id. at 294-95. The court thus held that the plaintiff had failed to create a genuine
dispute of material fact and affirmed the district court’s grant of summary judgment to
defendants. See id. at 295.
The same reasoning applies here. Plaintiff’s assertion that K-9 Dunn did not alert is not
based on his personal observation but rather unsupported speculation, which is insufficient to
rebut Trooper Reiser’s testimony. Plaintiff has failed to establish that a genuine issue of material
fact exists as to whether K-9 Dunn alerted to the presence of a narcotic odor. Accordingly,
Plaintiff has also failed to create a genuine dispute of material fact as to whether the officers had
probable cause to search Plaintiff's vehicle. Thus, Defendants are entitled to summary judgment
on Plaintiffs false arrest and unlawful search and seizure claims based on the search of his
vehicle.”
IV. CONCLUSION
For the foregoing reasons, Defendants’ motion for summary judgment is GRANTED.
The Clerk of Court is respectfully directed to terminate the pending motion, (ECF No. 41), enter
judgment in favor of Defendants, and close the case.
SO ORDERED.
Dated: June 22, 2026
White Plains, New York | ae fh AaskeR
CATHY S#IBEL, U.S.D.J.
'2 Moreover, even if there were a genuine dispute as to whether K-9 Dunn alerted,
Troopers Viti and Porteus would be entitled to summary judgment on the illegal search/false
arrest claim. Viti and Porteus were entitled to act based on Trooper Reiser’s representation that
K-9 Dunn alerted to the vehicle, (Porteus Depo. at 13:24-14:13; Viti Depo. at 46:19-47:4),
because “police officers are entitled to rely on the allegations of fellow police officers in making
a probable cause determination,” McKinley v. Crevatas, No. 20-CV-3606, 2023 WL 4364182, at
*6 (S.D.N.Y. July 6, 2023). Although an officer may not rely on another officer’s statements
“when he harbors significant doubts about the credibility of those statements,” id., there is no
evidence in the record that either officer had or should have had such doubts, (see Porteus Depo.
at 45:10-15). Accordingly, Troopers Viti and Porteus are entitled to qualified immunity. See
Ramos v. City of N.Y., No. 15-CV-6085, 2017 WL 3267736, at *7 (S.D.N.Y. July 31, 2017)
(officers entitled to qualified immunity on unreasonable search and seizure claim where they
relied on another officer’s observations and report), on reconsideration, 2017 WL 3575697
(S.D.N.Y. Aug. 17, 2017); Alicea v. City of N.Y., No. 13-CV-7073, 2016 WL 2343862, at *6
(S.D.N.Y. May 3, 2016) (officer entitled to qualified immunity because he was entitled to rely on
representations of fellow officers when verifying arrest such that no reasonable jury could find
officer’s actions unreasonable); Campanaro v. City of Rome, 999 F. Supp. 277, 281 n.6
(N.D.N.Y. 1998) (officers entitled to qualified immunity because it would be reasonable for
them to rely on representations of fellow officer as to existence of probable cause to arrest).
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