Hon. Brenda K. Sannes, United States District Judge:
Plaintiff Ramel M. Towns brings this action under 42 U.S.C. § 1983 alleging that New York State Troopers Theresa Stannard, Matthew Carniglia, Timothy Mallory, Senior Investigator Karl Meybaum, and Investigator William Shea (collectively "Defendants"), violated his constitutional rights when they detained and searched him following a traffic stop on September 8, 2014 in Warren County, New York. (Dkt. No. 1).
Presently before the Court are the parties' cross-motions for summary judgment. (Dkt. Nos. 40, 41). Defendants move for summary judgment on all of Plaintiff's claims. (Dkt. No. 40). Plaintiff moves for partial summary judgment on his Fourth Amendment claims for (1) illegal detention and (2) unlawful search and seizure. (Dkt. No. 41).
For the following reasons, Defendants' motion is granted as to the equal protection claim and otherwise denied, and Plaintiff's motion is denied.
On September 8, 2014, at approximately 10:00 a.m., Plaintiff and James Hairston, both African American, were traveling in a Pontiac Grand Am north along Interstate 87 ("the "Northway"), from the Bronx, New York to Burlington, Vermont (Dkt. No. 45-1, ¶¶ 1-3; Dkt. No. 41-2, ¶ 1). While Plaintiff disputes Defendants' assertion that radar clocked the vehicle's speed at 80 mph, Plaintiff, who was in the passenger
After Stannard pulled over the Pontiac, she asked Hairston for his license and registration. (Dkt. No. 45-1, ¶ 7). After Hairston provided his license, Stannard asked "where he was going." (Dkt. No. 40-2, ¶ 9). Hairston replied that "he was driving [Plaintiff] up to Vermont," (Dkt. No. 43-2, at 32, 42), but that "[h]e did not know where in Vermont" and that "the passenger was telling him where to go." (Dkt. No. 40-2, ¶ 9). Stannard "ran Hairston's license and registration and discovered that his license was suspended and that his registration had lapsed for lack of insurance." (Id. ¶ 10). Stannard returned to the vehicle, "explained that [Hairston's] license was suspended," and advised Hairston that he would be arrested for aggravated unlicensed operation of a motor vehicle and taken to court for arraignment. (Dkt. No. 45-1, ¶ 9; Dkt. No. 40-2, ¶ 11).
Stannard then asked Plaintiff for his identification; Plaintiff, who did not have a driver's license, provided his "New York State issued Non-Driver Identification." (Dkt. No. 45-1, ¶¶ 10-11). According to Stannard, approximately fifteen minutes had passed from when she "saw Hairston speeding" until she asked Plaintiff for identification. (Dkt. No. 40-2, ¶ 14). During that time, she became suspicious that they might be engaged in some type of criminal activity because "[t]he driver and the passenger did not really know each other, the driver did not know where they were going in Vermont, they provided conflicting information and they seemed to have no purpose for their trip." (Id. ¶ 14). Stannard asserts that Hairston and Plaintiff "exhibited suspicious behavior" because "Hairston was not a taxi driver or anything like that" and because driving from the Bronx to Vermont "is not really a quick trip." (Dkt. No. 43-2, at 42-43). Plaintiff disputes that there was any conflicting information provided and denies that they had provided no reason for their trip.
Next, Stannard requested assistance from New York State Troopers. (Dkt. No. 45-1, ¶ 19; Dkt. No. 40-2, ¶ 16). According to Stannard, she needed assistance to transport Plaintiff off the Northway while she transported Hairston to the barracks to be processed, because pedestrians are prohibited from walking along the highway. (Dkt. No. 40-2, ¶¶ 16-17). While she waited for assistance, Stannard processed the tickets she issued to Hairston for his traffic infractions. (Dkt. No. 45-1 ¶ 25; Dkt. No. 40-2, ¶ 18). Hairston and Plaintiff remained
Defendants Shea, Maybaum and Mallory arrived approximately 15 to 20 minutes after Stannard's request for assistance. (Dkt. No. 45-1, ¶ 26; Dkt. No. 40-2, ¶ 19; Dkt. No. 40-6, ¶ 4). Stannard informed the responding officers that she had stopped the Pontiac for speeding and "discovered the driver's license was suspended" and "the vehicle registration had lapsed." (Dkt. No. 45-1, ¶ 27). Shea approached Hairston, "asked him basic questions, such as where he was headed, and had the impression he was not truthful." (Dkt. No. 40-3, ¶ 8).
At this point, according to both Mallory and Plaintiff, Shea questioned Plaintiff about his trip. (Dkt. No. 40-6, ¶ 9; Dkt. No. 45-3, ¶ 10). Here, the parties' versions of events diverge. Plaintiff states that after he was questioned by Shea, "approximately 30-40 minutes after the traffic stop began," Shea ordered Mallory to "handcuff[] [Plaintiff] with [his] hands behind [his] back." (Dkt. No. 45-3, at ¶¶ 10-11). Plaintiff was then "removed from the [Pontiac], patted-down," and told to sit on the front of a trooper's car. (Dkt. No. 42-2, at 109). Plaintiff asserts that he remained handcuffed until his arrest at 1:48 p.m. (Dkt. No. 45-3, ¶ 11; Dkt. No. 45-1, ¶ 61). Plaintiff asserts that the way in which he was handcuffed caused him "significant wrist and shoulder pain," and that his request to have his hands cuffed in front were denied, along with requests for water and to use the bathroom. (Dkt. No. 45-3, ¶ 19). According to Defendants, however, while Plaintiff was talking with Shea, he was outside, not in a car, and not handcuffed. (Dkt. No. 40-6, ¶¶ 9-10). The parties agree that Plaintiff was placed in Mallory's patrol car before the inventory search of the Pontiac but dispute whether he was handcuffed at that time. (Dkt. No. 45-1, ¶ 32; Dkt. No. 40-6, ¶ 10).
Stannard and Shea conducted an inventory search of Hairston's Pontiac incident to Hairston's arrest and in anticipation of towing the car from the Northway. (Dkt. No. 45-1, ¶ 33).
At approximately 12:00 p.m., Stannard requested a tow truck to have the vehicle removed from the Northway.
Carniglia then searched the glove box where Dale had "indicated" and found no contraband there. (Id. at 47-48). Carniglia then retrieved Dale from the police vehicle to search the interior of the Pontiac a second time. (Dkt. No. 41-2, ¶ 32). Dale entered through the passenger door of the Pontiac and "sniffed around the interior in the car." (Dkt. No. 41-2, ¶ 32). Dale alerted to the car's "front passenger seat" and then "indicated on the center of the passenger seat by scratching." (Dkt. No. 41-2, ¶ 32). Dale never searched Plaintiff's person. (Dkt. No. 43-1, at 66).
Carniglia then spoke with Plaintiff—although disputed, Defendants claim that still at this point, "Towns was not handcuffed or in custody at the time but was being detained," (Dkt. No. 40-5, ¶ 10)—and "advised him that he had conducted a K-9 search and that the drug dog alerted on the front passenger seat." (Dkt. No. 41-2, ¶ 34; Dkt. No. 43-3, at 58). Carniglia asked Plaintiff if he was in possession of any marijuana or narcotics in his "back pockets or clothing, which [Plaintiff] denied." (Dkt.
The events that subsequently unfolded are in dispute. According to Defendants, Carniglia "told [Plaintiff] that a search of his person was warranted," based on the dog's alert to the passenger's seat, and that "we would be going to a State Police barracks where he would be thoroughly searched." (Dkt. No. 40-5, ¶ 13). Plaintiff denied having anything and said that he did not want to go to a police station. (Id.). Carniglia told Plaintiff, that "if he could show ... he [was] not in possession of drugs within his clothing, there would be no need to go to a police station," and Plaintiff "volunteered to be searched at the scene." (Id.).
Carniglia then "conducted a pat-down search of [Plaintiff's] outer clothing and back pockets, the inside of his legs into his groin area, his front pockets and his waistband." (Id. ¶ 14). Carniglia "did not discover" any contraband "during the pat-down." (Id.). Carniglia then "opened the front and rear passenger doors on the passenger side of a patrol car creating an area which offered [Plaintiff] appropriate and adequate privacy, entirely shielding him from other members of the [New York State Patrol] and the public during the search." (Dkt. No. 40-5, ¶ 15). He asked Plaintiff "to pull the front of his pants out so that [he] could look down into them. [Plaintiff] complied and in doing so exposed his genitalia to [Carniglia]." (Id.). Carniglia "looked down his pants and could see that nothing was concealed in that area." (Id.). He then asked Plaintiff "to turn around so [he] could view [Plaintiff's] back. [Plaintiff] again said he did not have anything" and Carniglia "advised [Plaintiff] that [they] could go to a State Police Station if he would be more comfortable." (Id.). According to Carniglia, "[Plaintiff] declined that offer again and continued with the search." (Id.).
Carniglia then told Plaintiff "it was necessary" to view "the area of his buttocks, and also the area where his upper legs meet his buttocks. [Plaintiff] first pulled his waistband back and [Carniglia] looked down the back of [Plaintiff's] pants," but Carniglia "could not see the area [he] needed to see." (Id.). While Carniglia "did not suspect that Towns had drugs in his anus or rectum," he did suspect drugs were "concealed in his butt cheeks near the anus, the area that would be in proximity to the seat of the car where the dog had alerted." (Id.). Plaintiff then "exposed the upper and middle portions of his buttock" but Carniglia could still "not see the area [he] needed to see." (Id.). Plaintiff then "put his hands on his butt cheeks and feigned pulling them apart," but Carniglia noticed that Plaintiff was actually "clenching his buttocks together." (Id.). Carniglia "told [Plaintiff] to stop clenching and asked him to lean forward." (Id.). When Plaintiff leaned forward, Carniglia "saw a bag wrapper concealed in the lower portion of [Plaintiff's]' buttocks, the area near his anus." (Id.). Carniglia "advised [Plaintiff] that [he] could see the package and had [Plaintiff] pull his pants back up." (Id.). Carniglia "asked [Plaintiff] to remove the package and [Plaintiff] reached down the front of his pants beneath his scrotum and effortlessly removed the package." (Id. ¶ 16). Carniglia states that the "package was not in [Plaintiff's] anus or rectum." (Id.).
Plaintiff's account of the search differs sharply. According to Plaintiff, Carniglia told Plaintiff that he "was going to check the front and back of [Plaintiff's] underwear." (Dkt. No. 43-1, at 67). Plaintiff "was
Carniglia then told Plaintiff that he had to pull his pants and underwear down "to an area below [Plaintiff's] knees." (Id. ¶ 23). "Because of the number of officers surrounding [Plaintiff] and the fear that they might hit or strike [him]," Plaintiff complied. (Id.). Plaintiff felt he "had no choice." (Id.). Plaintiff feared that if he did not comply with Carniglia's demands, that he would "be hurt by the defendants and then arrested for resisting arrest." (Id.). Plaintiff asserts that Carniglia "was ordering, not asking, me to comply and had said that I had no choice." (Id.). Plaintiff was again told to drop his pants to a point right above his knees and to "bend over and lean against one of the State Trooper vehicles, which was parked on the shoulder of the Northway." (Id. ¶ 24.). Plaintiff remained in a leaned over position with his hands spreading his buttock cheeks for approximately four or five minutes while Carniglia searched the area between his buttock cheeks, "as well as [Plaintiff's] rectum and anus." (Id. ¶ 26). As Carniglia looked up Plaintiff's buttocks, Carniglia "yelled at [Plaintiff] to bend over further" and made Plaintiff spread his buttock cheeks "from top to bottom so that he could see inside [Plaintiff's] buttocks and up into [his] rectum and anus." (Id. ¶ 27).
Carniglia then asked his colleagues for a glove. (Id. ¶ 28). Carniglia told Plaintiff "if you make me go in there and get it ..." which Plaintiff understood to be a threat that if Plaintiff did not remove the object himself, Carniglia would either strike or injure Plaintiff. (Id.). Plaintiff replied, "You don't have to go inside me, please just don't hit me." (Id.). Feeling "degraded and scared and humiliated," Plaintiff complied. (Id. ¶ 29). Plaintiff reached back and pulled a small plastic string attached to a package in his rectum; Plaintiff then placed that package into a bag held by one of the State Troopers. (Id.). After withdrawing the package, Plaintiff asked Defendants not to hit him. (Id. ¶ 30). The package contained 15 grams of crack cocaine. (Dkt. No. 45-1, ¶ 59).
Defendants then allowed Plaintiff to use the bathroom on the side of the road. (Dkt. No. 45-3, ¶ 31). According to Plaintiff, as he urinated, one of the officers on the scene made jokes about the size of Plaintiff's penis, saying, in substance, "I thought we were supposed to be the white guys." (Id.). Plaintiff interpreted this as "a racist joke meant to mean that because [he] was black [he] was supposed to have a large penis." (Id.). At another point, Plaintiff's telephone rang. (Id. ¶ 18). One of the officers joked that he "was going to answer
Under Federal Rule of Civil Procedure 56(a), summary judgment may be granted only if all the submissions taken together "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party bears the initial burden of demonstrating "the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323, 106 S.Ct. 2548. A fact is "material" if it "might affect the outcome of the suit under the governing law," and is genuinely in dispute "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505; see also Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005) (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505). The movant may meet this burden by showing that the nonmoving party has "fail[ed] to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. 2548.
If the moving party meets this burden, the nonmoving party must "set out specific facts showing a genuine issue for trial." Anderson, 477 U.S. at 248, 250, 106 S.Ct. 2505; see also Celotex, 477 U.S. at 323-24, 106 S.Ct. 2548; Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). "When ruling on a summary judgment motion, the district court must construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant." Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir. 2003). "Assessments of credibility and choices between conflicting versions of the events are matters for the jury, not for the court on summary judgment." Jeffreys, 426 F.3d at 553-54 (quoting Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996)).
When considering cross-motions for summary judgment, a court "must evaluate each party's motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration." Hotel Emp. & Rest. Emp. Union, Local 100 of New York, N.Y. & Vicinity v. City of New York Dep't of Parks & Recreation, 311 F.3d 534, 543 (2d Cir. 2002) (quoting Heublein v. United States, 996 F.2d 1455, 1461 (2d Cir. 1993) (internal quotation marks omitted)).
Defendants argue that Plaintiff "cannot establish a Fourth Amendment claim
The Fourth Amendment "guarantees `[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.'" United States v. Gomez, 877 F.3d 76, 85-86 (2d Cir. 2017) (quoting U.S. Const. amend. IV) (alteration in original). Traffic stops constitute the "seizure of persons within the meaning of [the Fourth Amendment]." Gomez, 877 F.3d at 86 (quoting Whren v. United States, 517 U.S. 806, 809-10, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996)). "Therefore, traffic stops must satisfy the Fourth Amendment's reasonableness limitation, which `requires that an officer making a traffic stop have probable cause or reasonable suspicion that the person stopped has committed a traffic violation or is otherwise engaged in or about to be engaged in criminal activity.'" Id. (quoting United States v. Stewart, 551 F.3d 187, 191 (2d Cir. 2009)). However, a stop that is "reasonable at its inception ... can violate the Fourth Amendment if it is `prolonged beyond the time reasonably required to complete that mission.'" Id. "[T]asks not related to the traffic mission, such as dog sniffs or on-scene investigations into other crimes, are unlawful if they prolong the stop absent independent reasonable suspicion." Id. at 89 (internal quotation marks omitted). In Gomez, the Second Circuit held that the law enforcement officers' "investigative inquiries" concerning drugs and firearms during a five-minute stop for traffic violations prolonged the stop in violation of the Fourth Amendment. Id. at 90-91.
As an initial matter, Plaintiff concedes the Pontiac Hairston was driving "may have been a few miles [per hour] ... above the speed limit." (Dkt. No. 43-1, at 100-01). Thus, the undisputed evidence shows that when stopping the Pontiac, Stannard had probable cause to believe a traffic violation had occurred. See Whren, 517 U.S. at 810, 116 S.Ct. 1769 ("As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred."). Beyond determining whether to issue a traffic ticket, "an officer's mission includes `ordinary inquiries incident to [the traffic] stop.'" Rodriguez, 135 S. Ct. at 1615 (quoting Illinois v. Caballes, 543 U.S. 405, 408, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005)). Typically, such inquiries "involve checking the driver's license, determining whether there are outstanding warrants against the driver, and inspecting the automobile's registration and proof of insurance." Id.
Here, when Stannard ran Hairston's information, she discovered that Hairston's "license was suspended," which accordingly gave Stannard probable cause to arrest Hairston for aggravated unlicensed operation of a motor vehicle. (Dkt. No. 45-1, ¶ 9; Dkt. No. 40-2, ¶ 11). See
Shea, Mallory, and Maybaum responded to Stannard's request for assistance. (Dkt. No. 45-1, ¶ 27). Stannard and Shea arrested and searched Hairston. (Id. ¶¶ 30, 32). At this point, Plaintiff challenges his continued detention, arguing that he should have been "transported off the Northway." (Dkt. No. 45, at 3). The Court disagrees. A traffic stop is reasonable for the amount of time it takes to complete "the seizure's mission—to address the traffic violation that warranted the stop ... and attend to related safety concerns." Rodriguez, 135 S.Ct. at 1614. The passengers may be detained for the duration of a valid traffic stop, including a "pending inquiry into a vehicle violation." Arizona v. Johnson, 555 U.S. 323, 327, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009). Here, it is undisputed that Plaintiff could not legally drive the Pontiac; as a result, it had to be inventoried and towed. The mission of the traffic stop, therefore was not complete until those tasks were completed. See United States v. Gurule, 935 F.3d 878, 884 (10th Cir. 2019), as revised (Oct. 10, 2019) (explaining that where "[n]one of the vehicle's occupants possessed a valid driver's license ... the efforts on the part of law enforcement to help locate a licensed driver cannot be characterized as unconstitutionally extending this traffic stop."); United States v. Yancey, 928 F.3d 627, 631 (7th Cir. 2019) (finding detention during traffic stop reasonable where officers "had yet to verify if [the defendant] had a valid driver's license and could legally drive the car"); United States v. Vargas, 848 F.3d 971, 974 (11th Cir. 2017) (finding officer's attempts to find a licensed driver for a vehicle that the occupants could not drive were taken in the lawful discharge of his duties," and "fairly characterized as part of [his] traffic mission." (citing Rodriguez, 135 S.Ct. at 1615)).
At the time of Hairston's arrest for traffic violations, Plaintiff also argues that there was not reasonable suspicion to prolong the stop. Reasonable suspicion is relevant to the extent that the stop was prolonged for reasons unrelated to the seizure's mission—the traffic violations— in the approximately 35-40-minute period after the arrival of the officers, and before
The length of time between the inventory search and the end of the stop would appear to fall within the legitimate scope of an investigatory stop supported by reasonable suspicion, and then probable cause. Defendants found marijuana when they searched Hairston for a second time during the inventory search, which Hairston attributed to Plaintiff. (Dkt. No. 45-1, ¶ 35). The odor of marijuana in the vehicle and the presence of marijuana in Hairston's mouth then made it reasonable for Carniglia to conduct a dog sniff of the Pontiac. See United States v. Green, No. 14-cr-6038, 2018 WL 1136928, at *3, 2018 U.S. Dist. LEXIS 34640, at *8-9 (W.D.N.Y. Mar. 2, 2018) (finding it reasonable to "conduct a dog sniff" where an officer noticed an "overwhelming smell of marijuana emitting from the vehicle"). At this point, even considering the facts in the light most favorable to Plaintiff, Defendants had "develop[ed] a reasonable suspicion of criminal activity supported by specific and articulable facts."
There are, however, material factual issues with respect to the duration of the stop because the record does not reflect what happened in the time period after Hairston's arrest and before the inventory search, and because there are triable issues of fact as to whether the Defendants had reasonable suspicion of criminal activity at this time.
The Court also finds that Plaintiff's assertions regarding the use of handcuffs and repeated patfrisks raise triable issues of fact relating to the scope of Plaintiff's detention.
Although "handcuffs are not ordinarily part of a traffic stop, [handcuffs] may be reasonable where the officer suspects the target of the stop to be armed and dangerous." Ramdath v. Favata, No. 11-cv-0395, 2014 WL 12586843, at *7, 2014 U.S. Dist. LEXIS 196540, at *21 (N.D.N.Y. July 23, 2014); see also Johnson, 555 U.S. at 327, 129 S.Ct. 781 ("To justify a patdown of the driver or a passenger during a traffic stop, however, just as in the case of a pedestrian reasonably suspected of criminal activity, the police must harbor reasonable suspicion that the person subjected to the frisk is armed and dangerous.").
Here, according to Plaintiff, he was handcuffed at the side of the Northway after Hairston "was placed under arrest" for traffic infractions. (Dkt. 45-3, at ¶ 13). Multiple officers were on the scene, and Plaintiff asserts that Defendants "searched [him] repeatedly." (Id. at ¶ 12). On the other hand, Mallory, who stayed with Towns during the inventory search, and Carniglia, who conducted the strip search and visual body cavity search, both state that Plaintiff was not handcuffed. (Dkt. No. 40-6, ¶¶ 9-10; Dkt. No. 40-5, ¶ 12). Defendants have not argued that the scope of the detention was warranted if, as Plaintiff claims, he was handcuffed from the time he was placed in Mallory's car. Accordingly, the Court finds a material dispute of fact as to whether Defendants "exceeded the permissible scope of a Terry stop." See Bailey, 743 F.3d at 332.
Because material issues of fact remain with respect to the duration and scope of Plaintiff's detention, the Court denies both parties' motions for summary judgment as to this claim.
"The overriding function of the Fourth Amendment is to protect personal
To determine whether the search conducted here was reasonable, the Court, as a preliminary matter, considers the kind of search that occurred. The classification is important because more intrusive searches are subject to a stricter standard. Monroe v. Gould, 372 F.Supp.3d 197, 205 (S.D.N.Y. 2019); see also People v. Hall, 10 N.Y.3d 303, 309, 856 N.Y.S.2d 540, 886 N.E.2d 162 (2008).
Defendants argue that the search here "was not an actual strip search involving the complete removal of any items of clothing" and that none of the Defendants "touched Plaintiff during the search." (Dkt. No. 40-9, at 16). Plaintiff, by contrast, argues that the search performed here rises to the level of a "manual body cavity search" because Defendants made Plaintiff "bend over and spread his buttock cheeks," and retrieve a package from his rectum. (Dkt. No. 45, at 25-26). That is, according to Plaintiff, because Plaintiff was acting at Defendant's direction it is immaterial whether any of the defendants actually touched him and that the search should therefore be considered a manual cavity search. (Id.). The Court notes that there is a disputed issue of fact as to whether the package of crack cocaine was in the cheeks of Plaintiff's buttocks or in his anal cavity (See Dkt. No. 45-3, 4; Dkt. No. 40-5, ¶ 15).
In any event, it appears based on the undisputed evidence that Carniglia performed a strip search and a "visual body cavity search." Gonzalez v. City of Schenectady, 728 F.3d 149, 158 (2d Cir. 2013). "[A] `strip search' occurs when a suspect is required to remove his clothes." Id. A visual body cavity search "is one in which the police observe the suspect's body cavities without touching them." Id. The search is best classified as a visual cavity search even where, as here, the officers instruct the plaintiff to take certain actions. Id. (explaining that a search is a visual body cavity search where officers "hav[e] a suspect" bend over or squat and cough (citing Hall, 10 N.Y.3d at 306-07, 856 N.Y.S.2d 540, 886 N.E.2d 162)). At least one court has found that a search is a visual body cavity search where an officer instructs a person to remove something from his buttocks. See United States v. Awer, No. 06-cr-061S, 2007 WL 172258, at *2, 6-7, 2007 U.S. Dist. LEXIS 5175, at *4-5 (D. R.I. Jan. 23, 2007) (classifying a search as a "visual body cavity search"
"So long as the police do not coerce consent, a search conducted on the basis of consent is not an unreasonable search" and does not violate the Fourth Amendment. United States v. Garcia, 56 F.3d 418, 422 (2d Cir. 1995). "The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of `objective' reasonableness—what would the typical reasonable person have understood by the exchange between the officer and the suspect?" Garcia, 56 F.3d at 423 (quoting Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991)) Defendants argue that Plaintiff consented to what they describe as the "limited search of his person." (Dkt. No. 40-9, at 23). Plaintiff counters that he "did not consent to the search of his body cavities, and only acquiesced in the search out of intimidation, fear, and coercion." (Dkt. No. 45, at 10).
"Whether an individual has consented to a search is a question of fact to be determined by the `totality of all the circumstances.'" United States v. Wilson, 11 F.3d 346, 351 (2d Cir. 1993) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)). Consent must be "a product of that individual's free and unconstrained choice, rather than a mere acquiescence in a show of authority." Id. (citations omitted). Consent "may be granted either explicitly or implicitly, and it may be inferred from an individual's words, gestures, or conduct." United States v. Wilson, 914 F.Supp.2d 550, 558 (S.D.N.Y. 2012) (citing United States v. Buettner-Janusch, 646 F.2d 759, 764 (2d Cir. 1981)). "[K]nowledge of the right to refuse consent is one factor to be taken into account" when determining whether consent was voluntarily given. Schneckloth, 412 U.S. at 227, 93 S.Ct. 2041; see also United States v. Drayton, 536 U.S. 194, 206-07, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002). Other relevant factors include "whether the defendant was in custody and in handcuffs, whether there was a show of force, whether the agents told the defendant that a search warrant would be obtained ... and whether the defendant
Here, there are disputed issues of fact as to whether Plaintiff consented to the search. On Plaintiff's account, by the time of Carniglia's search, he had been "subjected to repeated searches of [his] person," detained, and handcuffed for hours. (Dkt. No. 45-3, at ¶ 20). When asked to consent to the search, Plaintiff asked whether he "had to comply," and more than one of the officers surrounding Plaintiff simultaneously answered "yes." (Dkt. No. 45-3, at ¶ 21). Courts have noted that when police "represent[] ... that they have authority to search whether or not [the suspect] consents, a permissive statement by the defendant cannot be deemed a voluntary consent." United States v. Sanchez, 635 F.2d 47, 59 (2d Cir. 1980) (citing Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968)).
Defendants, on the other hand argue that Plaintiff consented to the search at the side of the Northway rather than going to the police station. (Dkt. No. 47, at 8). Although Carniglia states that he told Plaintiff that, Plaintiff "would be going to a State Police barracks where he would be thoroughly searched," Carniglia also informed Plaintiff that a search was warranted because of the dog alert on the passenger seat. (Dkt. No. 40-5, ¶ 13). Whether these statements were coercive under these circumstances here is a factual issue for the jury. See, e.g., United States v. Munoz, 987 F.Supp.2d 438, 445 (S.D.N.Y. 2013) (distinguishing "truthful advice about the likely sequence of events," which does not vitiate consent, from a statement that "becomes coercive because it wrongly suggests that a search is inevitable"); see also United States v. Faruolo, 506 F.2d 490, 495 (2d Cir. 1974) (explaining that, where there "were grounds for the issuance of a search warrant" "the well founded advice of a law enforcement agent that, absent a consent to search, a warrant can be obtained does not constitute coercion ... There was in fact, here, a fair and sensible appraisal of the realities facing the defendant"). Carniglia further explained that with the use of the police car doors, he gave Plaintiff as much privacy as possible, and when it appeared Plaintiff may have been withdrawing his consent, Carniglia made sure that Plaintiff wished to proceed with the search. (Dkt. No. 40-5, ¶ 15).
Accordingly, the Court finds material disputes of fact as to whether Defendants had "a reasonable basis for believing that there had been consent to the search." Garcia, 56 F.3d at 423. These material issues of fact preclude summary judgment on this issue for either party.
Court have recognized the highly intrusive and degrading nature of the search conducted here. See Sloley v. VanBramer, 945 F.3d 30, 38 (2d Cir. 2019) (noting that strip searches are "uniquely intrusive" and the "invasive and degrading" nature of visual body cavity searches, which are "even more intrusive"). Recently the Second Circuit ruled that a visual body cavity search incident to arrest "must be based on reasonable suspicion to believe that the arrestee is secreting evidence inside the body cavity to be searched." Id. at 39.
Defendants have not cited any authority concerning the reasonableness of a warrantless strip search or visual body cavity search of an individual who is not under arrest but only detained in an investigatory stop. The caselaw analyzing such
As noted above, it would appear that, even viewing the evidence in the light most favorable to Plaintiff, the dog alert on the front passenger seat gave Defendants probable cause to believe Plaintiff was secreting narcotics or marijuana on or in his body. (Dkt. No. 41-2, ¶ 23). Defendants have not argued that there were exigent circumstances here; they assert that they only needed probable cause. However, the Court notes that in addition to the material issue of fact as to whether the Plaintiff consented to the search there are, as described below, material issues of fact as to whether the manner and place in which the search was conducted was reasonable. Wilson v. Aquino, 233 F. App'x 73, 76 (2d Cir. 2007) ("Assuming defendants lawfully arrested [the plaintiff], the reasonableness of any search incident thereto still depended on the manner in which it was conducted."). In light of the material factual issues regarding this search, and the parties' failure to address the applicable standard, the Court does not now rule on the justification required for such a search.
Even if there were adequate justification for the search there are material disputes of fact as to whether the search was conducted "in an unreasonable manner or at an unreasonable location." Cotto v. City of Middletown, 158 F.Supp.3d 67, 80 (D. Conn. 2016). Determining whether a search is reasonable requires balancing "the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted." Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979).
A strip search "in a public place, even if justified by reasonable suspicion, has been
Here, even viewing the evidence in the light most favorable to Defendants, there are material issue of fact. Since Plaintiff denies being given a choice to do the search at the police barracks, (Dkt. No. 43-2, at 98), there are factual disputes as to whether the search occurred in a reasonable place. Defendants have not argued that there were exigent circumstances. They do not maintain, for instance, that they feared Plaintiff would destroy the contraband in his possession. See Wilson, 233 F. App'x at 76 (finding no exigent circumstances justified "a need to transport [the plaintiff] to a private office location rather than to the police precinct to conduct any further search"). The Second Circuit has held that "in some circumstances, police may transport a suspect short distances in aid of a Terry stop." United States v. McCargo, 464 F.3d 192, 198 (2d Cir. 2006).
Carniglia states that he conducted the search after creating a space between the open front and rear passenger doors of a patrol car, "entirely shielding" Plaintiff from the other officers and the public. (Dkt. No. 40-5, ¶ 15). Plaintiff, on the other hand, denies that doors were opened to give him privacy. (Dkt. No. 43, at 84). On Plaintiff's account, Plaintiff was "surrounded" by "[f]our State Troopers" during the search, (Dkt. No. 45-3, ¶ 25), on the "shoulder of the Northway." (Id. ¶¶ 24-25). Plaintiff testified that the officers did not give him any privacy and that there was "a lot of traffic" passing by. (Dkt. No. 43-1, at 84). Accordingly, the Court finds material issues of fact as to whether the visual body cavity search of Plaintiff was conducted in an "unreasonable location" and in "an unreasonable manner." Cotto, 158 F. Supp. 3d at 80. Both parties' summary judgment motions are denied as to this claim.
Defendants seek summary judgment on Plaintiff's equal protection claim. The Fourteenth Amendment's Equal Protection Clause mandates that all persons "similarly situated ... be treated alike." City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). To establish a violation of equal protection based upon selective enforcement, a plaintiff may show that he was (1) selectively treated as compared
Here, Plaintiff argues that he was "subjected to racial comments suggesting that the defendant State Troopers were engaged in a racially motivated traffic stop." (Dkt. No. 45, at 15). He argues first that he was subject to racial discrimination when the Pontiac was pulled over. (Id. at 14-15). Plaintiff also argues that he was subject to impermissible racial discrimination during the subsequent search of his person when Defendants allegedly made racially derisive remarks. (Id. at 16). The Court analyzes each in turn.
Defendants argue summary judgment is proper because "there is no factual support for Plaintiff's allegation that Trooper Stannard stopped the Pontiac because [Plaintiff] and [Hairston] are African American." (Dkt. No. 40-9, at 20). In response, Plaintiff cites statistics indicating that "African Americans are arrested and prosecuted for drug offenses at hugely disproportionate rates than Caucasians." (Dkt. No. 45).
The Court finds Plaintiff's evidence as to the traffic stop itself insufficient to avoid summary judgment. Plaintiff offers "no evidence indicating that [Hairston's] car was selectively stopped over other vehicles traveling" on the Northway and moreover, "there is nothing in the record demonstrating that [Stannard] pulled [Hairston] over because of an impermissible consideration." Gonzalez v. City of New York, No. 99-cv-9128, 2000 WL 1678036, at *4, 2000 U.S. Dist. LEXIS 16153, at *14 (S.D.N.Y. Nov. 8, 2000), aff'd, 38 F. App'x 62 (2d Cir. 2002). Moreover, courts in this Circuit have granted summary judgment where, as here, a plaintiff relies on statistical evidence external to his case to show discriminatory intent. See Miller v. Terrillion, 391 F.Supp.3d 217, 223-24 (E.D.N.Y. 2019) (granting defendants summary judgment where the plaintiff drew "on a 2013 decision... in which the plaintiff's there established through statistical ... evidence `that the NYPD implements its policies regarding stop and frisk in a manner that intentionally discriminates based on race.'" (quoting Floyd v. City of New York, 959 F.Supp.2d 540, 663 (S.D.N.Y. 2013))). That evidence fails to establish that in this case "the traffic stop was motivated by discriminatory intent." Id. at 225. Moreover, apart from this statistical evidence, Plaintiff cites no caselaw to support his racial discrimination claim as to the stop. Accordingly, the Court finds summary judgment appropriate on his equal protection claim as to the traffic stop itself.
Plaintiff also argues that he was "subjected to racial comments suggesting that the defendant State Troopers were engaged in racially motivated traffic stop and treated differently because of his race." (Dkt. No. 45, at 15). Plaintiff cites three instances during the traffic stop. First, upon questioning why he was being repeatedly searched, Plaintiff alleges that the State Trooper searching him responded,
"[V]erbal harassment alone does not amount to a constitutional deprivation." Ali v. Connick, 136 F.Supp.3d 270, 276 (E.D.N.Y. 2015) (citing Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir. 1986) (holding that name-calling without "any appreciable injury" did not violate a prisoner's constitutional rights)). While racially-charged language may be considered in assessing the reasonableness of a search, see, e.g., Evans v. Stephens, 407 F.3d 1272, 1281-82 (11th Cir. 2005); Cotto, 158 F. Supp. 3d at 80, "[m]ere verbal abuse or the use of racial slurs or epithets reflecting racial prejudice, although reprehensible, does not form the basis of a claim pursuant to [Section] 1983," Baskerville v. Goord, No. 97-cv-6413, 2000 WL 897153, at *3, 2000 U.S. Dist. LEXIS 9242, at *10 (S.D.N.Y. July 6, 2000). Accordingly, Defendants' motion for summary judgment is granted as to Plaintiff's equal protection claim.
Defendants claim they are entitled to qualified immunity, arguing that "it cannot be said that
At the summary judgment stage, claims of qualified immunity are evaluated "using a two-part inquiry: (1) whether the facts, taken in the light most favorable to the party asserting the injury show that the officer's conduct violated a federal right" and (2) whether the right in question was clearly established at the time of the violation." Sloley, 945 F.3d at 36 (quoting Tolan v. Cotton, 572 U.S. 650, 655-56, 134 S.Ct. 1861, 188 L.Ed.2d 895 (2014) (per curiam)). The Court has discretion to decide which of the two prongs should be addressed first. Id. (citing Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)). Under either prong of the qualified immunity analysis, the Court "may not resolve genuine disputes of fact in favor of the party seeking summary judgment." Tolan, 572 U.S. at 656, 134 S.Ct. 1861.
The question here, then, is whether it was clearly established on September 8, 2014, that an officer could not conduct a visual body cavity search, with probable cause but without a warrant or exigent circumstances, of a suspect who was not under arrest, in view of others on the side of the road during a traffic stop.
Courts both in this Circuit and across the country agree with the following two propositions: first, a strip search violates the Fourth Amendment if it is conducted in an unreasonable place and manner. Wilson v. Aquino, 233 F. App'x 73, 76 (2d Cir. 2007) (denying qualified immunity and holding that it was "objectively unreasonable for the defendants to think that their ... method of conducting the challenged strip search was lawful"). Second, that "it is unreasonable to conduct a strip search in full view of the public without exigent circumstances." Cotto, 158 F. Supp. 3d at 85-86; see also, e.g., Lafayette, 462 U.S. at 645, 103 S.Ct. 2605 (explaining, in the context of the search of an "arrestee's person," that "[p]olice conduct that would be impractical or unreasonable—or embarrassingly intrusive—on the street can more readily—and privately—be performed at the station."); Campbell, 499 F.3d at 718 (finding search incident to arrest was conducted in an unreasonable manner where "[h]aving decided, legitimately, to conduct this type of search, the police inexplicably did not even afford [the plaintiff] the dignity of doing it in a private place"); Hill v. Bogans, 735 F.2d 391, 393-94 (10th Cir. 1984) (finding the manner of a strip search of an arrestee unreasonable where it was conducted in a police station lobby area with "ten to twelve people ... milling about"); Logan v. Shealy, 660 F.2d 1007, 1014 (4th Cir. 1981) ("We think that, as a matter of law, no police officer in this day and time could reasonably believe that conducting a strip search in an area exposed to the general view of persons known to be in the vicinity whether or not any actually viewed the search is a constitutionally valid governmental invasion of
Moreover, district courts in this Circuit have denied qualified immunity when confronted with unreasonable strip searches of arrestees in public.
Here, Plaintiff was not under arrest when he was searched. The line of cases finding Fourth Amendment violations as applied to arrestees subject to intrusive searches would have given any reasonable officer fair notice that a visual body cavity search in the manner allegedly conducted here violated Plaintiff's clearly established constitutional rights. See Edrei v. Maguire, 892 F.3d 525, 540, 542-43 (2d Cir. 2018), cert. denied, ___ U.S. ___, 139 S.Ct. 2614, 204 L.Ed.2d 263 (2019) (explaining that qualified immunity's "fair notice" requirement can be met in novel factual contexts). Accordingly, the Court denies qualified immunity as to the strip and visual body cavity search at this stage.
For these reasons, it is hereby
