Seifert et al v. Rivera et al

Filing 25

ORDER granting 20 Motion for Summary Judgment. See attached memorandum of decision. The Clerk is directed to enter judgment in favor of the Defendants and close the case. Signed by Judge Vanessa L. Bryant on 3/19/2013. (Fernandez, Melissa)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

LINDA SEIFERT, TIMOTHY SEIFERT,
AND LAURA SEIFERT
Plaintiffs,
v.
ORLANDO RIVERA AND KENNETH
BORER,
Defendants.

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CIVIL ACTION NO.
3:10-cv-1326 (VLB)
MARCH 19, 2013

MEMORANDUM OF DECISION GRANTING DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT [Dkt. #20]
The Plaintiffs Linda Seifert (“Linda”), Timothy Seifert (“Timothy”), and
Laura Seifert (“Laura”) bring this action against City of Waterbury Detectives
Defendants Orlando Rivera (“Detective Rivera”) and Kenneth Borer (“Detective
Borer”), alleging two federal law claims under 42 U.S.C. §1983 for unlawful entry
and seizure, and for false imprisonment, and one state law claim for negligent
infliction of emotional distress owing to the their home detention by the
Defendants while the officers awaited the issuance of a search warrant for the
home. Before the Court is Defendants’ motion for summary judgment as to all of
the Plaintiffs’ claims.

For the following reasons, the Court GRANTS the

Defendants’ motion for summary judgment.
Facts
The following facts are undisputed unless otherwise noted.1 Defendants

1

The Court notes before setting forth the factual background that Plaintiffs’ Local
Rule 56(a)2 Statement in response to Defendants’ Local Rule 56(a)1 Statement
1

Rivera and Borer were Waterbury Police Department Detectives. [Dkt. # 20-1,
Local Rule 56(a)(1) Statement, ¶1]. On December 18, 2007 Michael Seifert
(“Michael”) husband of Plaintiff Linda Seifert and father of Plaintiffs Timothy
Seifert and Laura Seifert, confessed to the Waterbury Police Department that he
committed numerous bank robberies between the time period of February 2007
and December 2007. [Dkt. # 20-1, Local Rule 56(a)(1) Statement, ¶10].
Approximately thirteen of these bank robberies were committed in the State of
Connecticut and in the State of New York, including an August 10, 2007 robbery
of the TD BankNorth on 1254 W. Main Street in Waterbury. Id. at ¶3. Police
investigations revealed that all of these bank robberies had a common suspect
description and the same suspect vehicles, including a red Ford Expedition, a
black Chevy Colorado, and an Oldsmobile Bravada. Id. at ¶3.
An investigation conducted by Detective David McKnight of the Waterbury
Police Department of the August 10, 2007 robbery revealed that an individual by
the name of Michael Seifert matched the physical description of the suspect of
the numerous bank robberies, and that Michael Seifert also had access to all of
the vehicles utilized by the suspect. Id. at ¶3. On December 17, 2007 Detective
McKnight contacted the State of Connecticut Department of Motor Vehicles and
obtained information for all 1998-2000 red Ford Expeditions registered in the
State of Connecticut. [Dkt. # 20-3, Exhibit E, Aff. & Appl. for Search & Seizure

admits all of the factual allegations except one regarding whether consent was
given by the Plaintiffs to enter and search their home. The only evidence the
Plaintiffs have proffered to create a genuine dispute as to the material fact of
consent is Laura Seifert’s deposition testimony.

2

Warrant, at 24]. Detective McKnight analyzed the list to determine whether any of
the registered owners also had a black Chevy Colorado registered to their
address, which led Detective McKnight to Michael Seifert’s information. Id.
Detective McKnight was able to obtain Michael Seifert’s driver’s license photo
and compared it to the surveillance photos taken during the robberies, and
determined the two had very similar characteristics. Id.
On December 18, 2007, the Plaintiffs and Michael Seifert resided at 69
Bonnie Vu Lane, in New Milford, Connecticut. [Dkt. # 20-1, Local Rule 56(a)(1)
Statement, ¶¶5,6].

Waterbury Detectives traveled to the Seifert residence to

inquire about Michael Seifert’s whereabouts. Id. at ¶8. When detectives arrived at
the Seifert residence they observed a black Oldsmobile Bravada in the driveway
and interacted with Laura and Timothy Seifert. [Dkt. # 20-3, Exhibit D, Arrest
Warrant Aff., at 20].

After talking to Timothy Seifert, the detectives drove to

Michael Seifert’s workplace in Windsor and located the red Ford Expedition that
matched the description of the witnesses’ reports. Id.
At approximately 4:00 p.m. on December 18, 2007, Waterbury Detectives
transported Michael Seifert from his place of employment in Windsor to the
Waterbury Police Department. [Dkt. # 20-1, Local Rule 56(a)(1) Statement, ¶9].
Michael Seifert provided a Voluntary Statement to the Waterbury Police
Department confessing to the commission of the string of bank robberies in
Connecticut and New York, including the bank robbery in Waterbury, Connecticut
on August 10, 2007. Id. at ¶10.

In his statement, he admitted to using three

vehicles that belonged to members of the Seifert household to commit the bank

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robberies, including the red 1998 Ford Expedition which belonged to him, his
son’s black 2005 Chevy Colorado and his wife’s 2000 Oldsmobile Bravada. Id. at
¶11; see also [Dkt. # 20-3, Ex. C, Michael Seifert Voluntary Statement, p. 11-13].
Michael Seifert also admitted that while he committed the bank robberies he wore
sunglasses, a baseball cap, a jacket, a green windbreaker, a scarf, a button-down
shirt, and a khaki coat. [Dkt. # 20-1, Local Rule 56(a)(1) Statement, ¶12]. He
further admitted to carrying a black laptop bag that contained a BB gun and bank
teller demand notes. Id. at ¶12. He stated that the black laptop bag and BB gun
used in the robberies were still at his house, along with the clothing he used
during the robberies. Id. at ¶13. Defendants Detective Rivera and Detective Borer
were asked by their supervisor to go to Michael Seifert’s residence to stand by
pending the issuance and to assist in the execution of a search and seizure
warrant. Id. at ¶14. At about 5:30 p.m. the same day, Detectives Rivera and Borer
left the Waterbury Police Department to travel to the Seifert residence. Id. at ¶14.
That same day Timothy Seifert left the Seifert residence at around 5:30 p.m.
to pick up his mother, Linda Seifert, in the Oldsmobile Bravada. Id. at ¶16. While
Timothy Seifert drove to pick up his mother, Laura Seifert was present at the
residence alone. Id. at ¶17. Laura Seifert heard either the doorbell or knocking at
the front door of the Seifert residence and opened the door. Id. at ¶18.
The Defendants contend that Laura Seifert opened the front door and was
informed by Detectives Rivera and Borer that they were with the Waterbury Police
Department and were waiting on a warrant for the house. Id. at ¶19. At the time
Laura was opening the door, she was holding onto the family dog as the dog was

4

trying to exit the house and when the Detectives shifted their weight, she
physically backed up out of the open door space with the dog and moved back
into the house allowing the Detectives to enter. Id. at ¶¶20-21.

After the

Detectives entered, Laura shut the front door and the Detectives identified
themselves to her and showed her a police badge. Id. at ¶¶22-23. Laura then
asked the Detectives to sit in the living room until her mother came home. Id. at
¶24. The Defendants contend that they believed Laura consented to their entry
into and presence at the home.
The Plaintiffs dispute that Laura consented to their entry and contend that
the Officers used physical force to enter the residence. [Dkt. # 24-2, Pl.’s Rule
56(a)2 Statement, Disputed Issues of Material Fact, ¶¶1-2]. They rely exclusively
on Laura’s deposition testimony to create genuine disputes of material fact.
Laura testified to the follow regarding her interaction with the Detectives:
“Q: What happened?
A: [I]t was either the doorbell or knocking, I’m not sure which, but two men
were at my front door and made themselves known that way.
Q; Okay. So I take it then you responded to the door and you opened the
door?
A: I did. I opened the door and I had to hold the dog because he was trying
to get out, and Detective Borer and Rivera were at my front door. And as
opposed to in the afternoon, they were now at the top of the front steps
directly in front of me.
Q: Okay. So at that time, you stated that you also were trying to keep the
dog, and what kind of dog was it?
A: He is a bearded collie.
Q: And he’s a large dog?
A: He’s about fifty-five pounds. So he comes just past my knees.
Q: At that time when you opened the door and saw two men standing there,
I assume, did they tell you who they were? Did they identify themselves?
A: They said they were with the Waterbury Police Department and that they
were waiting on a warrant for the house.
Q: At that point in time, did they show you any badge?
A: Not until they came into the house.
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Q: Can you describe for me how that happened? How did they come into
the house?
A: I was bent over holding the dog; they’re standing in front and above me.
And they shifted their weight and came toward me. So I had to back up and
they came into the house that way.
Q: And when they came into the house, where were they standing? Is there
a foyer?
A: Yeah, in our front entryway.
Q: How about yourself at this time? What were you doing when they
actually made it inside the house?
A: Once they came in the house, I shut the door so the dog couldn’t get
out.
Q: And then what happened?
A: At that time they identified themselves to me. One of them showed me a
badge, and I asked them to sit in our living room until my mother came
home.
Q: All right. And did they sit in the living room them?
A: They did.” [Dkt. # 24-1, Laura Seifert’s Dep., at 14-16].
Laura asserts that when the police initially entered, they told her she could
not call anyone. [Dkt. # 24-2, Pl.’s Rule 56(a)2 Statement, Disputed Issues of
Material Fact, ¶5].

After asking the Detectives to sit in the living room, Laura

went back into the kitchen to prepare dinner while the Detectives sat in the living
room. [Dkt. # 24-1, Laura Seifert’s Dep., at 16-17]. Laura testified that when she
went back to the kitchen that “seemed to make [the Detectives] uncomfortable
because you can’t see the kitchen from the living room.” Id.

Laura further

testified that she was “allowed to stay in the kitchen at that time” while the
Detectives stayed in the living room. Id. at 17.
At the end of Linda Seifert’s shift at 6:00 p.m., Timothy Seifert arrived at her
place of employment, to pick her up and take her to their residence. [Dkt. # 20-1,
Local Rule 56(a)(1) Statement, ¶27]. The drive from Linda Seifert’s place of
employment to the Seifert residence took approximately twenty minutes that day
and when they arrived, Timothy Seifert drove up the driveway into the garage. Id.
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at ¶27. A black Chevy Colorado pick-up truck was also parked in the garage at
that time. Id. at ¶28. Timothy and Linda Seifert entered the house through the
door in the garage and spoke to Laura Seifert, they then went to see Detectives
Rivera and Borer who were still sitting in the living room. Id. at ¶29. Linda Seifert
asked the Detectives why they were there and Detective Rivera responded that
they were there to secure the house in advance to the issuance of a search
warrant and that her husband Michael Seifert was at the Waterbury Police
Department. Id. at ¶30. The Plaintiffs claim that they asked whether they could
leave the house, and they were told by the Detectives that they could not leave
the house. Id. at ¶31. Timothy Seifert had nowhere specifically to go that evening
and had no pre-made plans that evening. Id. at ¶32. Linda Seifert did not have premade plans to go anywhere that evening either. Id. at ¶33. Laura Seifert had plans
and asked the Detectives if she could leave the house to go to the movies with a
friend that night. Id. at ¶34. She was told she could not leave the house nor was
she allowed to call her friend to cancel the plans. Id. at ¶34. However, Laura
Seifert text messaged her friend to inform her that she was not able to meet with
her that night. Id. at ¶34. During the time that Detectives Rivera and Borer were
inside the Plaintiff’s house Laura, Timothy and Linda Seifert were in possession
of a cell phone. Id. at ¶¶35, 36, 37. Timothy and Linda Seifert did not ask to use
their cell phones. Id. at ¶¶36, 37. There was also a landline phone in the kitchen of
the house. Id. at ¶38.
During the period Defendants Detective Rivera and Borer were in the
Plaintiffs’ house, Linda Seifert asked Detective Borer if she could go upstairs to

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the second floor and change her clothing. Id. at ¶39. Linda Seifert was given
permission to do so, and then went upstairs alone and changed her clothing. Id.
at ¶39. She also had access to the bathroom facilities and utilized them. Id. at
¶39. Linda Seifert also went from the family room to the kitchen to get a glass of
water. Id. at ¶39. During this time period, Plaintiff Timothy Seifert also had free
access to the bathroom and kitchen and used them both. Id. at ¶40. During the
period Detectives Rivera and Borer were in the Seifert residence, Linda, Timothy
and Laura Seifert went into the family room to sit together and talk, while the
Detectives remained in the living room. Id. at ¶41. While the Plaintiffs sat together
in the family room they turned on the television. Id. at ¶41. Laura Seifert states
that she watched the New York Rangers hockey game to distract herself. [Dkt. #
20-5, Exhibit Q, Pls.’ Resp. to Def.’s Interrog. No. 5, at 60].
At 7:34pm that same night, Michael Seifert’s Voluntary Statement was
completed and the police prepared an arrest warrant for him along with two
Search and Seizure Warrants. [Dkt. # 20-1, Local Rule 56(a)(1) Statement, ¶42]. At
9:32 p.m. the Arrest Warrant and the two Search and Seizure Warrants were
signed by a Judge of the Connecticut Superior Court. Id. at ¶42. At approximately
10:38 p.m., Michael Seifert was arrested at the Waterbury Police Department and
formally charged with the robbery of TD Banknorth in Waterbury, Connecticut. Id.
at ¶45.
Between 9:30 p.m. and 11:00 p.m. Detectives Rivera and Borer went into
the family room and told Linda, Laura, and Timothy Seifert that Michael Seifert
was in custody at the Waterbury Police Department and had confessed to the

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commission of bank robberies and that a search warrant had been secured. Id. at
¶46. During this conversation, the Plaintiffs asked if they could use one of the
cars to leave the house and Detective Rivera responded that the other cars in the
garage had also been used in the robberies and had to be impounded. Id. at ¶47.
Before the Oldsmobile Bravada was impounded, Timothy Seifert asked if he could
remove some personal items from the vehicle and was allowed to do so. Id. at
¶49.
At 11:00 p.m. the Search and Seizure Warrants were executed at the Seifert
residence. Id. at ¶50.

Timothy Seifert went to sleep inside the house at

approximately 1:00 a.m. on December 19, 2007 while Detectives Rivera and Borer
were still present along with other police officers from other jurisdictions and the
crime scene technicians. Id. at ¶51. Laura Seifert also fell asleep in the house
during the time the Search Warrant was in the process of being executed. Id. at
¶52. During the time Detectives Rivera and Borer were inside the Seifert
Residence on December 18, 2007 they were never told to leave the residence by
the Plaintiffs nor did the Plaintiffs ever request them to leave the residence. Id. at
¶53.

Legal Standard
Summary judgment should be granted “if 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). The moving party bears the burden of
proving that no factual issues exist. Vivenzio v. City of Syracuse, 611 F.3d 98, 106

9

(2d Cir.2010). “In determining whether that burden has been met, the court is
required to resolve all ambiguities and credit all factual inferences that could be
drawn in favor of the party against whom summary judgment is sought.” Id.,
(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91
L.Ed.2d 202 (1986); Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). “If there is any evidence in the
record that could reasonably support a jury's verdict for the nonmoving party,
summary judgment must be denied.” Am. Home Assurance Co. v. Hapag Lloyd
Container Linie, GmbH, 446 F.3d 313, 315–16 (2d Cir.2006) (internal quotation
marks and citation omitted).
“A party opposing summary judgment cannot defeat the motion by relying on
the allegations in his pleading, or on conclusory statements, or on mere
assertions that affidavits supporting the motion are not credible. At the summary
judgment stage of the proceeding, Plaintiffs are required to present admissible
evidence in support of their allegations; allegations alone, without evidence to
back them up, are not sufficient.” Welch–Rubin v. Sandals Corp., No.3:03cv481,
2004 WL 2472280, at *1 (D.Conn. Oct. 20, 2004) (internal quotation marks and
citations omitted); Martinez v. State of Connecticut, No. 3:09cv1341 (VLB), 2011
WL 4396704 at *6 (D. Conn. Sept. 21, 2011). Where there is no evidence upon
which a jury could properly proceed to find a verdict for the party producing it
and upon whom the onus of proof is imposed, such as where the evidence
offered consists of conclusory assertions without further support in the record,

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summary judgment may lie. Fincher v. Depository Trust and Clearance Co., 604
F.3d 712 (2d Cir. 2010).
Analysis

I.

Unlawful Entry

The Plaintiffs argue that the Defendants unlawfully entered their residence
as they had not obtained consent to enter. The Fourth Amendment gives an
individual the right to be “free in one’s home from unreasonable searches and
arrests.” Pearson v. Callahan, 555 U.S. 223, 230 (2009) (quoting Callahan v.
Millard Cty., 494 F.3d 891, 898–899 (2007)). A warrantless entry to a home is per
se unreasonable unless it satisfies the established exceptions. Id. Two
exceptions allow police officers to enter the home without a warrant (1) in the
case of exigent circumstances or (2) when consent is given. Id. Although the
Plaintiffs contend that Laura Seifert did not give consent for the Detectives to
enter the residence, the Court finds that either of these two exceptions applicable
in the present case to render the Detectives’ entry into the Seifert residence
lawful under the Fourth Amendment.
A.

Consent

The Fourth Amendment prohibits searches that are objectively
unreasonable, and in the context of a purported consent to search the
determining question is whether, “based on the totality of the circumstances, ‘the
officer had a reasonable basis for believing that there had been consent to the
search.’” Felmine v. City of New York, 09-CV-3768 CBA JO, 2011 WL 4543268, *15
(E.D.N.Y. Sept. 29, 2011) recons. den., 09-CV-3768 CBA JO, 2012 WL 1999863
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(E.D.N.Y. June 4, 2012)(quoting United States v. Garcia, 56 F.3d 418, 423 (2d
Cir.1995)). Furthermore, “[c]onsent must be freely and voluntarily given.” Abdella
v. O'Toole, 343 F. Supp. 2d 129, 134 (D. Conn. 2004) (quoting Schneckloth v.
Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)). In addition,
consent is not merely acquiescence in the presence of lawful authority. Garcia, 56
F.3d at 422.
The Second Circuit has further explained that “[r]ecent Supreme Court
decisions emphasize both that only unreasonable searches are proscribed by the
Fourth Amendment, and that the issue of reasonableness is to be measured by
an objective standard.” Garcia, 56 F.3d at 423. As the Second Circuit
highlighted, the Supreme Court has stated that:
It is apparent that in order to satisfy the “reasonableness”
requirement of the Fourth Amendment, what is generally demanded
of the many factual determinations that must regularly be made by
agents of the government—whether the magistrate issuing a warrant,
the police officer executing a warrant, or the police officer
conducting a search or seizure under one of the exceptions to the
warrant requirement—is not that they always be correct, but that
they always be reasonable.
Illinois v. Rodriguez, 497 U.S. 177, 186-86 (1990) (emphasis added). Therefore,
“[t]he 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?” Florida v. Jimeno, 500 U.S. 248, 251 (1991). And thus, “[t]he Fourth
Amendment is satisfied when, under the circumstances, it is objectively
reasonable for the officer to believe that the scope of the suspect's consent
12

permitted him to [conduct the search that was undertaken].” Id. at 249. “Of
course, this objective standard does not preclude an assessment of the
particularities of the situation that is presented in any given case. On the
contrary, it is still the totality of the circumstances that must be considered.”

Garcia, 56 F.3d at 423. “Nonetheless, the ultimate question presented is whether
‘the officer had a reasonable basis for believing that there had been consent to
the search.’” Id. (quoting U.S. v. Sanchez, 32 F.3d 1330, 1334-35 (8th Cir. 1994)).
Based on the totality of the circumstances in this case Detectives Rivera
and Borer had a reasonable basis for concluding there was consent to enter. The
Second Circuit has consistently held that consent need not be express but may
be implied from “an individual’s words, acts or conduct.” Krause v.Penny, 837
F.2d 595, 597 (2d Cir.1988). “Thus a search may be lawful even if the person
giving consent does not recite the talismanic phrase: You have my permission to
search.” U.S. v. Grant, 375 F. App’x. 79, 80 (2d Cir. 2010) (internal quotation marks
and citation omitted).

As recounted by Laura Seifert herself, she backed up after

the officers shifted their weight as she restrained the dog. When the officers
followed her into the entryway, she shut the door after learning that they were
policemen and then asked them to sit in the living room until her mother came
home. [Dkt. # 24-1, Laura Seifert’s Dep., at 14-16]. Even viewing this testimony in
the light most favorable to the Plaintiffs, the Detectives had a reasonable basis to
interpret Laura Seifert’s conduct of stepping back allowing room for them to
enter, shutting the door after they entered and asking them to sit in the living

13

room until her mother arrived home as an invitation to enter and remain at the
home absent any vocal or other indication to the contrary.
The Plaintiffs attempt to create a genuine issue of material fact in dispute
by focusing on Laura’s intent, arguing that Laura’s conduct in stepping back from
the open door was not an invitation to enter the residence but done because she
was holding onto the family dog and in response to the Detectives’ shifting their
weight. The inquiry under the Fourth Amendment is one of objectiveness
reasonableness, the standard for measuring consent is not the occupant’s intent
but rather whether “a typical reasonable person have understood by the
exchange between the officer and the [occupant]” that consent was given.

Jimeno, 500 U.S. at 251. Further, police officers need not always be correct under
the Fourth Amendment, they only need to be reasonable. Illinois, 497 U.S. at 18686. In view of the totality of the circumstances, it was objectively reasonable for
the Detectives to believe that Laura Seifert had consented to their entry when she
stepped backwards from the open door even if that wasn’t her intent and further
that she invited them to remain at least until her mother came home.
In addition, the Plaintiffs argue that consent could not have been given
because the Detectives used forced to enter the home as evidenced by the fact
that they shifted their weight which prompted Laura to back up. [Dkt. # 24, Pl.’s
Mem. in Opp’n to Def.’s Motion for Summ. J., at 2.]. Even viewing these facts in
the light most favorable to the Plaintiffs, a reasonable person would not conclude
based on this exchange that the Detectives employed force to enter the
residence. For example, there is no evidence that the Detectives lunged at the
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door, obstructed the doorway to prevent closing, had any physical contact with
Laura or the door or even that the Officers took any actual steps forward to
proceed through the doorway. Even in viewing Laura Seifert’s testimony in the
light most favorable to her, it was objectively reasonable for the Detectives to
believe that their conduct in shifting their weight had not coerced her into
allowing them into the residence. Even if the Detectives’ shifting of weight could
be construed as force, the fact that a person “has been subjected to a display of
force does not automatically preclude a finding of voluntariness.” United States
v. Snype, 441 F.3d 119, 131 (2d Cir. 2006) (citing United States v. Ansaldi, 372 F.3d
118, 129 (2d Cir.2004) (holding that use of guns to effectuate arrest and
handcuffing of defendant did not render his consent to search his home
involuntary)). Again as the standard to be used here is the reasonableness of
the officer’s belief that there was consent, the fact that Seifert might have moved
backward in response to the Detective’s shifting their weight does not preclude a
finding that the Detectives’ reasonably perceived her conduct in moving
backwards as consent to enter as opposed to her simply responding to their
shifting of weight.
Given the totality of the circumstances, a typical reasonable person would
have understood that Laura’s nonverbal communication and subsequent actions
indicated her consent for the Defendants to enter and remain in the house.
See,e.g., U.S. v. Grant, 375 F. App’x. 79 (2d Cir. 2010) (finding there was implied
consent where occupant admitted officers into his building and turned towards
his apartment, the officers followed occupant into his apartment without any
15

impediment or objection to their entry); United States v. Zabala, 52 F.Supp.2d 377,
385 (S.D.N.Y.1999) (defendant consented to search of her apartment when police
asked her if “we can take a look inside” and defendant unlocked and opened her
door); United States v. Wilson, 895 F.2d 168, 172 (4th Cir.1990) (individual
consented to search of his person by shrugging his shoulders and extending his
arms); compare Felmine v. City of New York, 09-CV-3768 CBA JO, 2011 WL
4543268, *16 (E.D.N.Y. Sept. 29, 2011) (finding triable issue of fact as to whether
consent was given where plaintiff testified that officers followed her into the
residence after she had turned her back in an attempt to close the door). Here,
Laura Seifert did not attempt to close the door nor did she object to the
Detectives’ entry when they came in. In addition, the reasonableness of the
Detectives’ belief that consent had been given is further bolstered by the
undisputed facts that after they had walked through the doorway, Laura Seifert
closed the door behind them and asked them to sit in the living room.
Lastly, the Plaintiffs contend that the fact that Laura Seifert was silent and
did not object to the Detectives’ presence does not constitute consent. The
Plaintiffs are correct that “mere silence or the failure to object does not constitute
consent unless the totality of circumstances so indicates.” United States v.

Taylor, 279 F.Supp.2d 242, 245 (S.D.N.Y. 2003). However, as discussed above the
totality of the circumstances did indicate that the Officers had a reasonable basis
for believing there was consent when they proceeded into residence after she
had backed up, particularly given her contemporaneous invitation for them to sit
in the living room. It is well established that the validity of an entry or search of a
16

home does not depend on the recitation of any talismanic phrase. Moreover,
Laura Seifert did utter a talismanic phrase to the Officers shortly after they
walked through the doorway asking them to sit in the living room. Even viewing
the facts in the light most favorable to the Plaintiffs, the Detectives had a
reasonable basis for believing that Laura Seifert had given consent for their entry
into the residence and therefore the Court finds that their warrantless entry was
reasonable under the Fourth Amendment.
Although not raised or disputed by the parties, it appears that Laura Seifert
had authority to give consent for the Detectives to enter the Seifert residence.
Consent to search property may be given by the owner of the property or from a
third-party who possesses “common authority over or other sufficient
relationship to the premises or effects sought to be inspected.” Abdella, 343 F.
Supp. 2d at 134 (quoting United States v. Matlock, 415 U.S. 164, 171 (1974)). Here,
Laura Seifert had authority over the residence or other sufficient relationship to
give consent as Laura testified that she resided at the Seifert Residence at the
time of the incident. [Dkt. # 24-1, Laure Seifert Deposition., at 6.]. She further
testified that she had graduated from high school over a year and a half prior to
the incident and was a college student at the time. Id. at 8. In view of the fact that
Laura was not a minor and resided at the premises, it was reasonable for the
Defendants to believe she had the authority to consent to their entry. Moreover,
Laura’s mother, Linda Seifert, clearly acquiesced to the Detectives’ presence
inside the home when she arrived back at the residence. According to Linda
Seifert’s deposition she arrived home and asked why the Defendants were in her
17

home, and the Detectives told her that they were waiting on a warrant. Dkt. #20-5,
Ex. M, Linda Seifert’s Dep.,p. 40]. Linda Seifert did not object to their presence in
her house nor did she ask them to leave at any point. [Dkt. # 20-1, Local Rule
56(a)(1) Statement, ¶53]. She testified that when she came home she spoke to the
officers and then watched television in the family room while the officers stayed
in the living room as Laura Seifert had asked them. For the aforementioned
reasons, summary judgment in favor of the Defendants is warranted as the
Defendants’ warrantless entry was not unreasonable under the Fourth
Amendment.
B.

Exigent Circumstances

Assuming arguendo that the Defendants did not have consent to enter the
Seifert residence, Defendants’ entry to the home was lawful because of the
exigent circumstances in this case. A warrantless entry to a home is lawful when
exigent circumstances exist. See Pearson, 555 U.S. at 230. One well established
exigent circumstance is the need to prevent the imminent destruction of
evidence. Kentucky v. King, 131 S. Ct. 1849, 1852 (2011)2; Abdella, 343 F.Supp. 2d
at 139 (citing United States v. Brown, 52 F.3d 415, 421 (2d Cir. 1995)). The central
requirement in determining whether exigent circumstances justify a warrantless
2

The Supreme Court in Kentucky v. King recently reaffirmed that the need to
prevent the imminent destruction of evidence is a sufficient justification for a
warrantless search but further clarified that the “exigent circumstances rule
applies when the police do not gain entry to premises by means of an actual or
threatened violation of the Fourth Amendment.” 131 S.Ct. at 1862. Here as this
Court has held that the seizure and search of the Plaintiffs and their residence did
not violated the Fourth Amendment, the exigent circumstances rule would apply
to justify the Detective’s conduct in entering the home even if there had not been
consent and their subsequent actions in securing the premises until the search
warrant was obtained. 
18

entry is whether the police officers had an “‘urgent need’ to render aid or to take
action.” Rogers v. Apicalla, 606 F.Supp.2d 272, 286 (D. Conn. 2009) (citing United
States v. MacDonald, 916 F.2d 766, 769 (2d Cir.1990)). “The test for determining
exigent circumstances is an objective one that turns on the totality of the
circumstances confronting law enforcement agents in a particular case.”
Abdella, 343 F.Supp. 2d at 139. The Second Circuit has identified six factors that
should be considered when determining the existence of exigent circumstance:
(1) the gravity or violent nature of the offense the suspect allegedly
committed; (2) whether the suspect is reasonably believed to be
armed; (3) a clear showing of probable cause that the suspect
committed the crime; (4) strong reason to believe the suspect is in
the premises being entered; (5) a likelihood the suspect will escape if
not swiftly captured; and (6) the peaceful circumstances of the entry.

Id. (citing MacDonald, 916 F.2d at 769-770). In addition, “a reasonable belief by
law enforcement officials that the targets of an investigation are armed or that
quick action is necessary to prevent the destruction of evidence can serve to
show exigent circumstances.” Id. These factors are “‘merely illustrative, not
exhaustive, and the presence or absence of any one factor is not conclusive.’” Id.
(quoting MacDonald, 916 F.3d at 770). “Sometimes the presence of a solitary
factor suffices” such as the destruction of evidence in particular. MacDonald,
916 F.2d at 770 (citing United States v. Gallo-Roman, 816 F.2d 76, 79-80 (2d Cir.
1987)).
Consideration of these factors indicate that that there were exigent
circumstances justifying the Officer’s warrantless entry into the Seifert residence
to prevent the destruction of evidence that supported Michael Seifert’s conviction
of a string of armed robberies throughout two states. First, the gravity of the
19

offenses that Michael Seifert was to be charged was serious, he committed
thirteen armed robberies over the span of ten months. [Dkt. # 20-1, Local Rule
56(a)(1) Statement, ¶10]. In addition, there is a clear showing of probable cause
to believe that Michael Seifert committed the crime on the basis of his
confession. Further, the Officers had probable cause to believe that evidence of
Michael Seifert’s crimes were within the residence because he had told the police
the clothing, BB gun, and bag he used during the robberies were at his home and
the Officers’ had observed one of the cars that was used in the robberies at the
residence. Next, there was a likelihood that the occupants of the residence could
escape with the evidence, such as the vehicles, as such property was not
secured. The other residents of the home were immediate family members of
Michael Seifert and as such had a motive to destroy or conceal evidence of the
crimes. Michael Seifert also confessed to using his family members’ cars, which
made them potential accomplices or co-conspirators of the crimes, increasing
their motive to destroy or conceal evidence. Moreover, the entry was eminently
peaceful as the Detectives knocked on the door, waited for Plaintiff Laura Seifert
to answer and politely spoke to her and peacefully entered the home. The
Detectives then waited in the living room as directed to secure the residence and
deter the destruction of any evidence while waiting for the search warrant. The
Detectives allowed the Plaintiffs to use the kitchen to make dinner, use the
bathrooms, and watch television together in the family room and go to sleep at
night.

20

Lastly, quick action was needed to prevent the destruction of evidence.
The Defendants were unaware of who was complicit in the bank robberies and
therefore were justified in securing the property for the preservation of evidence.
At the time the Defendants were sent by their supervisors to the Seifert
residence, they were not informed as to whether Michael Seifert acted alone in
committing the robberies or what kind of evidence was going to be essential to
the prosecution of Michael Seifert and perhaps other family members. It was
further reasonable to suspect that other members of the Seifert family may have
been involved in the robberies as Seifert admitted to using his wife and his son’s
cars during the robberies. Further, given that the police department had visited
the Seifert residence earlier that day, they had put the family on notice that
Michael Seifert was being sought by police. In light of these circumstances, it
was reasonable for the Defendants to anticipate that any member of Seifert’s
family would destroy evidence as they had been alerted that their father’s bank
robbery scheme had been uncovered by the police. See U.S. v. Gallo-Roman, 816
F.2d at 79 (finding that DEA agents’ belief that evidence might be destroyed was
not mere speculation because it was reasonable for DEA agents to conclude that
once suspects had been alerted that their scheme had been uncovered that they
would attempt to destroy evidence.). Consequently, the possible destruction of
evidence at the Seifert residence was imminent and therefore it was reasonable
for the police officers to enter the Seifert residence, even in the absence of
consent, to preserve evidence. Even if consent had not been obtained, the

21

Defendants did not violate the Fourth Amendment by entering the Seifert
residence without a warrant to secure the premises.

II.

False Imprisonment
The Plaintiffs argue that the Defendants’ conduct in detaining them in their

home while waiting to obtain the search warrant and then executing the search
warrant amounted to false imprisonment. When analyzing a false imprisonment
claim courts look to the law of the state in which the arrest occurred. Russo v.
City of Bridgeport, 479 F.3d 196, 203 (2d Cir. 2007) (citing Davis v. Rodriguez, 364
F.3d 424, 433 (2d Cir.2004)).3 Under Connecticut law “‘[f]alse imprisonment, or
false arrest, is the unlawful restraint by one person of the physical liberty of
another.’” Id. at 204 (quoting Outlaw v. City of Meriden, 43 Conn.App. 387, 392,
682 A.2d 1112, 1115 (1996)). “To prevail on a claim of false imprisonment, the
plaintiff must prove that his physical liberty has been restrained by the defendant
and that the restraint was against his will, that is, that he did not consent to the
restraint or acquiesce in it willingly.” Zainc v. City of Waterbury, 603 F.Supp.2d
368, 386 (D. Conn. 2009) (quoting Berry v. Loiseau, 223 Conn. 786, 820, 614 A.2d
414 (1992)). “The restraint must be accomplished through the exercise of force.
A person is not liable for false imprisonment unless his act is done for the
purpose of imposing a confinement, or with knowledge that such confinement

3

Although it is unclear whether the Plaintiffs’ claims are brought under §1983 or
solely under Connecticut law or both, it is immaterial as the analysis of false
imprisonment is the same under §1983 and Connecticut law. Zainc v. City of
Waterbury, 603 F.Supp.2d 368, 386 n.7(D. Conn. 2009) 
22

will, to a substantial certainty, result from it.” Id. (internal quotation marks and
citations omitted).
“In the case of a false imprisonment the detention must be wholly unlawful
....” Lo Sacco v. Young, 20 Conn.App. 6, 19 (1989) (internal quotation marks and
citations omitted). “A Section 1983 claim for false arrest or false imprisonment
‘rest[s] on the Fourth Amendment right of an individual to be free from
unreasonable seizures.’” Oliphant v. Villano, No. 3:09cv862 (JBA), 2011 WL
3902741, at *1 (D. Conn. Sept. 6, 2011) (quoting Weyan v. Okst, 101 F.3d 845, 852
(2d Cir.1996)). Consequently, a “seizure permissible under the Fourth
Amendment is not ‘unlawful’ and therefore cannot sustain a claim of false
imprisonment.” Hamilton v. City of New Haven, 213 F.Supp.2d 125, 133 (D. Conn.
2002) (citing Smith v. City of New Haven, 166 F.Supp.2d 636, 645 (D.Conn.2001)
(arrest supported by probable cause under the Fourth Amendment is not
unlawful)). The Defendants argue that the Plaintiffs cannot establish that their
detention was wholly unlawful as it was permissible under the Fourth
Amendment to detain them while waiting to obtain and then executing a search
warrant. The Defendants argue both that the seizure of the Plaintiffs and their
residence was reasonable under the Fourth Amendment.
“The Fourth Amendment's protection against unreasonable searches and
seizures applies to all seizures of the person, including those that involve only a
brief detention short of traditional arrest.” U.S. v. Bews, 715 F.Supp. 1206, 1209
(W.D.N.Y. 1989) (citing Brignoni-Ponce, 522 U.S. 873, 878 (1976). The brevity and
the exigency of the circumstances may permit a detention for investigative

23

purposed on reasonable suspicion. Terry v. Ohio, 392 U.S. 1, 16-19 (1968); Brown
v. Texas, 443 U.S. 47, 51 (1979) (police may detain a suspect for further
investigation upon reasonable suspicion of criminal wrongdoing). Terry requires
that a police officer have only “reasonable suspicion,” United States v. Scopo, 19
F.3d 777, 781 (2d Cir.1994), that “criminal activity may be afoot” to justify an
investigatory stop. Reasonable suspicion requires considerably less of a
showing than probable cause. See United States v. Arvizu, 534 U.S. 266, 273,
(2002). Here, based on the totality of the circumstances, the officers had a
reasonable basis to suspect that other members of the Seifert family were
complicit in the string of 13 armed bank robberies committed my Michael Seifert
in the prior 10 months. First, the number and frequency of the crimes as well as
his absence at the times they were committed may have alerted them as they
resided with him. Second, he wore the same clothing and used the same
implements to commit each crime and stored them in the home where they
resided. Third, he used his family members’ vehicles to commit the crimes.
Finally, he stated that he robbed the banks because he needed money and his
family may well have realized he had more money than he earned legally. The
court must consider these facts in the aggregate and not in isolation. United
States v. Cortez, 449 U.S. 411, 418 (1981) (“[T]he assessment must be based upon
all the circumstances .... and weighed not in terms of library analysis by scholars,
but as understood by those versed in the field of law enforcement.”). Indeed,
some courts have found detention sustainable in circumstances that are not
dissimilar to from the facts of this case, where the detainee is closely associated

24

with a person suspected of committing a crime. See United States v. Barlin, 686
F.2d 81, 87 (2d Cir.1982) (holding that the search and detention of the defendant
was justified by reasonable suspicion because she “was not innocuously present
in a crowd at a public place” but, instead, “entered [the apartment] in tandem with
[suspects] whose involvement in an ongoing narcotics transaction seemed
apparent”); United States v. Tehrani, 49 F.3d 54, 59-60 (2d Cir.1995) (holding that
a Terry-stop of the defendant at an airport was justified by reasonable suspicion
regarding his traveling companion and inconsistencies between statements made
by the defendant and statements made by his companion in response to
questions posed by law enforcement agents).
Further, the preservation of evidence alone is sufficient to justify the
minimal intrusion on the Plaintiffs. It is well established that a search warrant
“carries with it the limited authority to detain the occupants of the premises while
a proper search is conducted.” Michigan v. Summers, 452 U.S. 692, 705 (1981);
see also Muehler v. Mena, 544 U.S. 93, 98 (2005). The Supreme Court has
explained that an “officer's authority to detain incident to a search is categorical
and does not depend on the quantum of proof justifying detention or the extent of
the intrusion to be imposed by the seizure” Muehler, 544 U.S. at 98 (internal
quotation marks and citation omitted). Further, where there is probable cause
“[t]he connection of an occupant to that home gives the police officer an easily
identifiable and certain basis for determining that suspicion of criminal activity
justifies a detention of that occupant.” Summers, 452 U.S. at 703-04.

25

The Supreme Court has suggested that even in the absence of a warrant, a
temporary seizure supported by probable cause and exigent circumstances to
prevent the destruction of evidence while the police diligently obtain a warrant is
reasonable under the Fourth Amendment. In Summers, the Supreme Court
acknowledged that “[t]he fact that our holding today deals with a case in which
the police had a warrant does not, of course, preclude the possibility that
comparable police conduct may be justified by exigent circumstances in the
absence of a warrant.” Summers, 452 U.S. at 703 n.17. Then in Segura v. United
States, 468 U.S. 796 (1984), the Supreme Court held that “securing a dwelling, on
the basis of probable cause, to prevent the destruction or removal of evidence
while a search warrant is being sought is not itself an unreasonable seizure of
either the dwelling or its contents.” Id. at 810. They concluded that under
circumstances where the securing of premises is “undertaken to preserve the
status quo while a search warrant is being sought” that will not violate the Fourth
Amendment. Id. at 809. In coming to this conclusion, the Supreme Court
considered and relied on its prior decision in Rawlings v. Kentucky, 448 U.S. 98
(1988) where it did not question the admissibility of evidence discovered
pursuant to a later issued warrant where “officers secured, from within, the home
of a person for whom they had an arrest warrant, and detained all occupants
while other officers were obtaining a search warrant.” Id. (citing Rawlings, 448
U.S. at 100).
As the Supreme Court in Summers contemplated that where there are
exigent circumstances, such as the need to prevent the destruction of evidence,

26

police officers may have the limited authority to detain occupants incident to a
search absent a warrant. “It is well established that ‘exigent circumstances,’
including the need to prevent the destruction of evidence, permit police officers
to conduct an otherwise permissible search [or seizure] without first obtaining a
warrant.” Kentucky v. King, 131 S.Ct. 1849, 1853-54 (2011). Therefore, reading

Summers and Segura together indicates that it would not violate the Fourth
Amendment to temporarily seize either a dwelling or any occupants of that
dwelling on the basis of probable cause to prevent the destruction or removal of
evidence while a search warrant is diligently sought. Indeed, the Second Circuit
has suggested that the rationale of Segura “would permit minimal restraint upon
bystander occupants of premises to prevent them from destroying evidence or
otherwise interfering with a search” while waiting to obtain a warrant. Ayeni v.
Mottola, 35 F.3d 680, 690 n. 13 (2d Cir.1994) abrogated on other ground by Wilson
v. Layne, 526 U.S. 603 (1999).
After Summers and Segura, the Supreme Court held that there was no
unreasonable seizure where police officers, who had probable cause to believe a
suspect had hidden marijuana in his home, prevented that suspect from entering
his residence unaccompanied by an officer for about two hours while they
obtained a search warrant. Illinois v. McArthur, 531 U.S. 326 (2001). The Supreme
Court emphasized that “[w]hen faced with special law enforcement needs,
diminished expectations of privacy, minimal intrusions, or the like, the Court has
found that certain general, or individual, circumstances may render a warrantless
search or seizure reasonable.” Id. at 330 (citing Summers, 452 U.S. at 702-705).

27

They explained that a warrantless seizure is not per se unreasonable and “rather
than employing a per se rule of unreasonableness, [courts should] balance the
privacy-related and law enforcement-related concerns to determine if the
intrusion was reasonable.” Id. at 331. The Supreme Court further emphasized
that “[w]e have found no case in which this Court has held unlawful a temporary
seizure that was supported by probable cause and was designed to prevent the
loss of evidence while the police diligently obtained a warrant in a reasonable
period of time” and in particular highlighted that “[i]n various other
circumstances, this Court has upheld temporary restraints where needed to
preserve evidence until police could obtain a warrant.” Id. at 334.
In McArthur, the Supreme Court examined four factors in determining the
reasonableness of the seizure which seek to balance privacy-related and law
enforcement-related concerns: (1) probable cause to believe the home contained
evidence of crime and contraband; (2) good reason to fear that evidence would be
destroyed before they could return with a warrant; (3) reasonable efforts to
reconcile law enforcement needs with right of personal privacy; and (4) restraint
for limited period of time. Id. at 331-33. Moreover, any restraint imposed must be
“both limited and tailored reasonably to secure law enforcement needs while
protecting privacy interests” to satisfy the reasonableness requirement under the
Fourth Amendment. Id. at 337. These factors identified in McArthur comport
with both the Supreme Court’s direction in Summers that detaining occupants
incident to a search may be permissible in the absence of a warrant where there
are exigent circumstances and their holding in Segura that securing the premises

28

on the basis of probable cause to prevent destruction of evidence while obtaining
a search warrant does not violate the Fourth Amendment. See e.g., U.S. v. Yett,
85 F. App’x 471, 474 (6th Cir. 2004) (“Reading Summers and McArthur together”
to conclude that officers’ temporary detention of suspect for one hour while
awaiting the issuance of a search warrant was permissible because the
temporary detention was supported by probable cause and “seizure prior to the
warrant’s issuance was calculated to prevent the loss of evidence and freeze the
status quo” and police were diligently obtaining a warrant that was quickly
granted.”); U.S. v. Pignard, No.06cr718(CM), 2007 WL 431863, at *5 (S.D.N.Y. Feb.
6, 2007) (holding that under McArthur and Segura, the officers “did nothing wrong
by entering and securing the apartment while waiting for the warrant to issue”
and emphasizing that [i]t is also well settled that [police officers] can detain
persons at a crime scene while waiting for a warrant or conducting a search, even
if those persons are not otherwise suspected of committing crimes.”); United
States v. Legette, 260 F. App’x 247, 251 (11th Cir. 2008) (upholding denial of
motion to suppress where officer detained individual in a residence for three to
four hours pending a search warrant”); Chin v. Wilhelm, No.CCV-02-1551, 2006
WL 827343, at *6 (D.Md. Mar. 24, 2006) (finding that the “principle articulated in

Summers has been extended to those situations where, as here, the police detain
individuals while they seek a warrant to search the premises”) (citing McArthur,
531 U.S. 326); Hearn v. Secretary, Dept. of Corrections, No.3:07-cv320, 2010 WL
1462365, at *8 (M.D.Fla. April 13, 2010) (Under McArthur and Segura, “[o]nce they
had probable cause to search the premises, the officers could detain the

29

individuals until they obtained a warrant; could arrest the individuals for
possession of the drug and then obtain a warrant; or obtain consent to enter the
premises.”);see also Gordon Mehler, John Gleeson & David C. James, Federal

Criminal Practice: Second Circuit Handbook, 44-9 ( 12th ed. 2012) (“If a search
warrant is in the process of being obtained officers may detain the occupants of a
residence for a reasonable time to preserve the statue qui.”) (citing Segura and
McArthur).
The Plaintiffs argue that it is not appropriate to apply the holding in
McArthur to the present case because in McAthur the detention occurred outside
the home and the occupant was only permitted to enter the home accompanied
by an officer whereas here the Plaintiffs were detained inside the home and not
permitted to leave. However, this is a distinction without a difference favoring
the Plaintiffs’ position. The restraint here is less onerous than the one in
McAthur because in McAthur the detainee was denied access to his home and
the Plaintiffs were allowed unfettered use of their home. In addition, here the
officers reasonably believed that there was consent to enter and remain in the
home in the first instance and the officers reasonably feared that the Plaintiffs
would leave the residence with evidence – namely their cars which Michael
Seifert had confessed he used to commit his string of armed bank robberies. See
United. Legette, 260 F. App’x at 251 (“Although in McArthur the detention
occurred outside the home and here Legette was detained inside his home, this
distinction is not dispositive where the defendant granted permission to the
officers to enter his home.”). The Court therefore finds the McArthur factors

30

appropriate to consider in determining whether the Officers’ detention of the
Plaintiffs while waiting to obtain a search warrant was reasonable under the
Fourth Amendment. These factors are appropriate to consider in both examining
whether the “seizure” of the Plaintiffs as well as the “seizure” of their home by
the Defendants prior to obtaining the search warrant was permissible under the
Fourth Amendment as such factors purposefully balance the privacy-related and
law enforcement-related concerns central to the Fourth Amendment inquiry. See
McArthur, 531 U.S. at 330 (the Fourth Amendment’s “‘central requirement’ is one
of reasonableness. In order to enforce that requirement, this Court has
interpreted the Amendment as establishing rules and presumptions designed to
control conduct of law enforcement officers that may significantly intrude upon
privacy interests”) (citation omitted); Lauro v. Charles, 219 F.3d 202, 209 (2d Cir.
2000) (“Thus, a Fourth Amendment examination of a search or seizure like the
one in this case requires a contextualized reasonableness analysis that seeks to
balance the intrusion on privacy caused by law enforcement against the
justification asserted for it by the state.”) (citing Graham v. Connor, 490 U.S. 386,
396 (1989)).
An application of the McArthur factors to the present case indicates that
the restraints imposed on the Plaintiffs and their residence while the Defendants
diligently sought and obtained a search warrant were reasonable under the
Fourth Amendment. First, Defendants Detectives Rivera and Borer had probable
cause to believe that the Seifert residence contained evidence of the thirteen
bank robberies committed by Michael Seifert throughout the state of Connecticut

31

and New York. “Whether probable cause existed is a question that may be
resolved as a matter of law on a motion for summary judgment if there is no
dispute with regard to the pertinent events and knowledge of the officer.”
Weinstock v. Wilk, 296 F. Supp.2d 241, 256 (D. Conn. 2003) (citing Weyant v. Okst,
101 F.3d 845, 852 (2d Cir. 2003)). “[U]nder both federal and state law, probable
cause to search is demonstrated where the totality of the circumstances indicates
a ‘fair probability that contraband or evidence of a crime will be found in a
particular place.’” Walczyk v. Rio, 496 F.3d 139, 156 (2d Cir. 2007) (quoting Illinois
v. Gates, 462 U.S. 213, 238 (1983)). “Probable cause is to be assessed on an
objective basis.” Zellner v. Summerlin, 494 F.3d 344, 369 (2d Cir. 2007). The
Second Circuit has consistently stated that:
Courts should look to the totality of the circumstances and must be aware
that probable cause is a fluid concept—turning on the assessment of
probabilities in particular factual contexts—not readily, or even usefully,
reduced to a neat set of legal rules.
Fabrikant, 691 F.3d at 215 (citations omitted). “In assessing probabilities, a
judicial officer must look to the factual and practical considerations of everyday
life on which reasonable and prudent men, not legal technicians, act.” Walczyk,
496 F.3d at 156 (internal quotation marks and citation omitted). In sum, probable
cause “requires only such facts as make wrongdoing or the discovery of
evidence thereof probable.” Id. at 157.
The Plaintiffs argue that the Officer did not have probable cause when they
detained the Plaintiffs at 5:30p.m. because the warrants were not signed until
9:32p.m. and were not executed until 11p.m. “Probable cause exists when [one]
ha[s] knowledge of, or reasonably trustworthy information as to, facts and

32

circumstances that are sufficient to warrant a person of reasonable caution in the
belief that an offense has been or is being committed by the person to be
arrested.” Williams, 535 F.3d 71, 79 (2d Cir. 2008) (internal quotation marks
omitted). That is distinct from a judicial finding of probable cause prerequisite to
the issuance of a warrant. See U. S. ex rel. Rogers v. Warden of Attica State
Prison, 381 F.2d 209, 216 (2d Cir. 1967) (“It is not the magistrate's function,
therefore, merely to determine whether the official seeking the warrant believes
that probable cause exists; rather, the magistrate must ask whether the facts
presented persuade him that there is probable cause.”). A judicial finding of
probable cause is only necessary where a warrantless search or seizure is
impermissible. See U.S. v. Moreno, 701 F.3d 64, (2d Cir. 2012) (“It is well-settled,
as we have repeatedly said, ‘that the warrant requirement of the Fourth
Amendment must yield in those situations in which exigent circumstances
require law enforcement officers to act without delay’”) (quoting United States v.

Gordils, 982 F.2d 64, 69 (2d Cir. 1992)).
Even if probable cause was required, it is undisputed that the Detectives
had probable cause when they arrived to secure the premises because the
Waterbury Police Department discovered that the bank robberies were committed
using vehicles, which were registered at the Seifert residence. [Dkt. # 20-3,
Exhibit E, Aff. & Appl. for Search & Seizure Warrant, at 24]. Additionally, when
the officers arrived at the Seifert residence earlier that day they observed one of
the vehicles used my Michael Seifert in the robberies parked in the driveway.
[Dkt. # 20-3, Exhibit D, Arrest Warrant Appl., at 20]. Lastly, the officers were

33

dispatched to the residence because Michael Seifert confessed to committing the
robberies and informed the police that the bag, clothing, BB gun he used during
the robberies were at his residence. Based on these undisputed facts the totality
of the circumstances indicated that there was a fair probability that evidence of
Michael Seifert’s crimes were to be found at the Seifert residence at the time
Detectives Rivera and Borer arrived at the residence to secure the premises.
The undisputed facts also demonstrate that the second McArthur factor
has been satisfied as the Defendants had good reason to fear that evidence
would be destroyed before they could return with a warrant. As discussed above
in reference to the Terry stop analysis, when the Detectives arrived at the Seifert
residence, they did not know whether any of the family members had participated
or were complicit in the robberies. Further, the Waterbury Police had earlier in
the day spoken with Timothy and Laura Seifert seeking the whereabouts of their
father and thus they were on notice that their father’s scheme had been
uncovered by the police. On this basis, the Defendants had good reason to fear
that members of the Seifert household would act to destroy the evidence needed
to convict Michael Seifert of the robberies. Furthermore as the two of the primary
pieces of evidence sought by the police were the cars Michael Seifert had used to
commit the string of robberies, the Police had good reason to fear that members
of the Seifert family would abscond with one of the cars. 4

4

Indeed, the exigencies relating to searching automobiles has long been
recognized as a permissible exception to the warrant requirement. See Carroll v.
U.S., 267 U.S. 132, 153 (1925) (“[T]he guaranty of freedom from unreasonable
searches and seizures by the Fourth Amendment has been construed, practically
since the beginning of Government, as recognizing a necessary difference
34

Third, the officers made reasonable efforts to reconcile their law
enforcement needs with the demands of personal liberty and privacy of the
Plaintiffs to satisfy the third McArthur factor by allowing the detainees virtually
unfettered use of the property. Here, the Defendants refrained from actually
searching the residence for evidence until the warrants had been obtained. They
merely secured the residence to prevent the destruction of evidence by
preventing the Plaintiffs from leaving the residence and from making any phone
calls. See Legette, 260 F. App’x at 251 (“The police here respected Legette's
privacy needs by not arresting him nor fully searching the premises without a
warrant”). Otherwise, the Plaintiffs were permitted to go about their normal
routines at home without supervision from the Detectives who remained in the
living room as Laura Seifert had asked. Indeed, Laura Seifert cooked dinner while
the officers sat in the living room. [Dkt. # 24-1, Laura Seifert’s Dep., at 16-17].
Linda Seifert was allowed to change her clothing and use the bathroom without
supervision from the police officers. [Dkt. # 20-5, Exhibit M, Linda Seifert’s Dep.,
at 16]. Timothy Seifert has access to and used the bathroom and kitchen. [Dkt. #
20-5, Exhibit L, Timothy Seifert’s Dep., at 31]. Plaintiffs also watched a hockey
between a search of a store, dwelling house or other structure in respect of which
a proper official warrant readily may be obtained, and a search of a ship, motor
boat, wagon or automobile, for contraband goods, where it is not practicable to
secure a warrant because the vehicle can be quickly moved out of the locality or
jurisdiction in which the warrant must be sought.”) (emphasis added); California
v. Carney, 471 U.S. 386, 391 (“The mobility of automobiles, we have observed,
creates circumstances of such exigency that, as a practical necessity, rigorous
enforcement of the warrant requirement is impossible.”) (internal quotation marks
and citations omitted). Therefore, the Defendants’ fear that the cars themselves
and any evidence in the cars would be destroyed due to the inherent mobility of
cars is substantiated by the long recognized “automobile exception” to the
Fourth Amendment warrant requirement.

35

game in the family room while the officers waited in the living room. [Dkt. # 20-5,
Exhibit Q, Pls.’ Resp. to Def.’s Interrog. No. 5, at 60]. When the Plaintiffs asked if
they could use the cars, the Officers explained that since the cars had been used
in the robberies they had to be impounded as evidence. Further, it is well
established that property may be held for a brief time where there is reasonable
suspicion that that it contains evidence of a crime. See United States v. Martin,
157 F3d 46, 54 (2d Cir. 1998) (Property could be held 11 days pending issuance of
a warrant where probable cause existed); United States v. Ohio, 494 U.S. 541, 542
(1990) (acknowledging that the “Fourth Amendment may permit a brief detention
of property on the basis of only ‘reasonable, articulable suspicion’”). The officers
therefore balanced the competing interests of law enforcement and the demands
of personal liberty and privacy of the Plaintiffs. This balance is demonstrated by
the fact that Timothy Seifert was allowed to remove his personal belongings from
one of the cars that was going to be impounded as evidence. Further, it was
imminently reasonable for the Defendants to restrain the Plaintiffs from leaving
the residence as all of their cars had been used in the robberies and were
therefore evidence. There is no evidence in the record that the Plaintiffs had
other means of transportation that they could have utilized to leave the premises
besides the cars which had been used in the robberies.
Fourth, the Defendants restrained the Plaintiffs only for the time period that
the Police Department worked diligently to obtain the warrants. The Plaintiffs
were detained in their residence for approximately four hours prior to the
Defendants obtaining the warrant and five and half hours prior to the execution of
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the warrant at the residence. Such a limited period of restraint was reasonable
under the Fourth Amendment as there is no evidence that the Defendants
unreasonably delayed or failed to diligently pursue obtaining the warrant. See
Segura, 468 U.S. at 812-13 (holding that a 19-hour home seizure while obtaining a
search warrant was not per se unreasonable as half the delay occurred between
10 p.m. and 10 a.m. the following day “when it is reasonable to assume that
judicial officers are not as readily available for consideration of warrant
requests.”); Legette, 260 F. App’x at 251 (finding that detention of four hours
while warrant was obtained was reasonable under the Fourth Amendment); U.S.
v. Christie, 570 F.Supp.2d 657, 668 (D.N.J. 2008) (finding pre-warrant detention of
seven hours reasonable under the rationale of McArthur).
In sum, the restraints the Defendants imposed on the Plaintiffs in
restraining them from leaving the residence and making phone calls as well as
their conduct in waiting in the living room to secure the premises until the
warrant was obtained was both limited and tailored reasonably to secure law
enforcement needs while protecting the Plaintiffs’ privacy interests. These
restraints could very well be seen as less restrictive then the restraint imposed in
McArthur where the suspect was prevented from entering his residence at all
unless accompanied by police officers. In the present case, the Plaintiffs were
not only permitted to remain in their residence but were allowed access to areas
of the residence unaccompanied and unsupervised by the Detectives. An
examination of the McArthur factors indicate that the seizure of the Plaintiffs and
their residence was reasonable under the Fourth Amendment as it struck a liberal
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balance between privacy-related and law enforcement-related concerns favoring
the Plaintiffs. Further, the undisputed facts demonstrate that there was probable
cause and the exigent need to prevent destruction of evidence which the
Supreme Court in Summers and Segura has suggested would justify the
imposition of minimal restraints on occupants of premises such as the ones
imposed here to prevent the destruction of evidence while a warrant was
obtained. Lastly, the continued detention of the Plaintiffs after the warrant had
been obtained and was being executed was clearly reasonable under Summers
as the search warrant carried with it the “limited authority to detain the occupants
of the premises while a proper search [was] conducted.” Summers, 452 U.S. at
705. As the seizure of the Plaintiffs and their residence was permissible under
the Fourth Amendment, it was not unlawful and therefore cannot sustain a claim
of false imprisonment. The Court therefore grants summary judgment on the
Plaintiffs’ false imprisonment claim in favor of Defendants.

III.

Qualified Immunity
Defendants also argue that they are entitled to the protection of qualified

immunity as any reasonable officer would have believed their conduct was lawful.
When reviewing a claim of qualified immunity, a court must consider “whether
the facts that the plaintiff has alleged (See Fed. Rules Civ. Porc. 12 (b)(b)(6), (c))
or shown (see Rule 50, 56) make out a violation of a constitutional [or statutory]
right,” and “whether the right at issue was ‘clearly established’ at the time of
defendant’s alleged misconduct.” Pearson v. Callahan, 555 U.S. 223, 232 (2009).

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Although previously the Supreme Court prescribed a mandatory two-step
analysis, considering first the constitutional violation prong and then the clearly
established prong, the Court has since recognized that this rigid procedure
“sometimes results in a substantial expenditure of scarce judicial resources on
difficult questions that have no effect on the outcome of the case,” as “[t]here are
cases in which it is plain that a constitutional right is not established but far from
obvious whether in fact there is a constitutional right.” Pearson, 555 U.S. at 23637. Thus, the Supreme Court has provided district courts with the discretion to
decide the order in which the two prongs of the qualified immunity analysis are
applied. Id. at 243. In providing the lower courts with the discretion to determine
the order of qualified immunity analysis to be applied to a given case, the
Supreme Court explicitly acknowledged that “there will be cases in which a court
will rather quickly and easily decide that there was no violation of clearly
established law before turning to the more difficult question of whether the
relevant facts make out a constitutional question at all.” Id. at 239.
Qualified immunity “protects government officials from liability where the
officials’ conduct was not in violation of a ‘clearly established’ constitutional
right.” Sudler v. City of New York, 11-1198-cv (L), 11-1216-cv (con), 2012 WL
3186373, at *10 (2d Cir. Aug. 7, 2012). “If the conduct did not violate a clearly
established constitutional right, or if it was objectively reasonable for the [official]
to believe that his conduct did not violate such a right, then the [official] is
protected by qualified immunity.” Id. (quoting Doninger v. Niehoff, 642 F.3d 334,
345 (2d Cir. 2011)). “Qualified immunity thus shields government officials from

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liability when they make ‘reasonable mistakes’ about the legality of their actions,
and ‘applies 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.” Id.
(internal citations omitted) (quoting Pearson, 555 U.S. at 231).
Here, the Court agrees that the Defendants would be entitled to the
protections of qualified immunity for both the Plaintiffs’ unlawful entry and false
arrest claims. For the reasons already discussed, it was objectively reasonable
for the Defendants to believe they have been given consent to enter and therefore
an objectively reasonable officer would believe his actions in entering a premise
with consent did not violate the Fourth Amendment. Even if the Defendants made
a mistake of fact as to whether consent had been given, qualified immunity would
still shield them for making such a reasonable mistake of fact. Furthermore, it
was objectively reasonable for the officers to believe that exigent circumstances
made their entry lawful. At the point the Defendants departed to the Seifert
residence all of the facts regarding the numerous bank robberies had not
surfaced and Michael Seifert was still in the process of giving his voluntary
statement. Given Michael Seifert’s use of his family’s vehicles to commit the
robberies it was reasonable for the officers to believe that the family members
were complicit in the crimes and therefore justified the need to prevent the
destruction of the evidence. The Defendants are therefore entitled to qualified
immunity on the Plaintiffs’ unlawful entry claim.
The Defendants are likewise entitled to qualified immunity on the Plaintiffs’
false arrest claim. It is not clearly established that imposing minimal restraints

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upon occupants of a premises, on the basis of probable cause, to prevent them
from destroying evidence while seeking a warrant is a violation of the Fourth
Amendment in view of the Supreme Court’ s decisions in Terry, Summers,
Segura, and McArthur. Consequently, an objectively reasonable officer would
believe his conduct did not violate the Plaintiffs’ constitutional rights particularly
where the Supreme Court in Summers indicated that “comparable police conduct
[detaining resident incident to search] may be justified by exigent circumstances
in the absence of a warrant.” 452 U.S. at 702 n. 17. See Lane v. Manning, No.4:08cv467-A, 2009 WL 1097832, at *3 (N.D.Tex. April 21, 2009) (holding that officers
entitled to qualified immunity where plaintiff claimed that the officers detained
him for hours before obtaining a search and arrest warrant as officers of
reasonable competence could differ on the lawfulness of the defendant’s action
in view of the Supreme Court’s decisions in Summers and Segura). The Court
therefore finds that the Defendants are also entitled to qualified immunity on the
Plaintiffs’ false arrest claim.

IV.

Negligent Infliction of Emotional Distress
Lastly, the Defendants argue the summary judgment should be granted in

their favor on Plaintiffs’ negligent infliction of emotional distress claim as it is
barred by the applicable statute of limitations. The Plaintiffs concede that they
have brought their claim outside of the limitations period, but have not withdrawn
the claim and therefore the Court grants summary judgment on this claim as well.

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Conclusion
For the foregoing reasons, the Court GRANTS Defendants’ [Dkt. #20]
motion for summary judgment on all of the Plaintiffs’ claims.

The Clerk is

directed to enter judgment in favor of the Defendants and close the case.

IT IS SO ORDERED.
_______/s/ ___________
Hon. Vanessa L. Bryant
United States District Judge

Dated at Hartford, Connecticut: March 19, 2013

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