Santos et al v. Zabbara et al

Filing 32

MEMORANDUM & ORDER granting 27 Defendants' Motion for Summary Judgment. See attached Memorandum & Order. This Court dismisses with prejudice all claims against Defendants. The parties shall bear their own costs and fees. The Clerk of the Court is directed to enter judgment accordingly. Ordered by Judge Pamela K. Chen on 10/28/2013. (Lo, Justin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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JOSE M. SANTOS, et al.,
Plaintiffs,
MEMORANDUM & ORDER
-against-

11-CV-2516 (PKC)

JOSEPH ZABBARA, et al.,
Defendants.
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PAMELA K. CHEN, United States District Judge:
This case is all about chickens: at the crack of dawn, officers from the Suffolk County
Police Department (the “SCPD”) searched Plaintiff Jose M. Santos’s (“Santos”) residence for
“chickens,” code for cocaine, and instead seized actual chickens. (Dkt. No. 1 (“Compl.”) ¶¶ 1435; Dkt. Nos. 27-3–27-8 (“Defs. Exs.”), Ex. D, at 115 ¶ 164, 117 ¶ 169.) Santos, along with his
wife and children (collectively, the “Plaintiffs”), brought suit under 42 U.S.C. § 1983 (“Section
1983”) against several of the SCPD officers in the Narcotics Section 1 (the “Defendants”) for
their role in issuing and executing the warrant for this search and subsequent seizure, 2 claiming

1

These officers are Joseph Zabbara, Raul Mercado, Robert Strecker, and Calvin Powell.
(Compl. ¶¶ 8-11.)
2

Plaintiffs also sued “John/Jane Doe(s)” from the SCPD and the Suffolk County Society
for the Prevention of Cruelty to Animals (the “SCPA”). (Compl. ¶¶ 12-13.) This Court,
however, dismisses the Section 1983 claims against the “John/Jane Doe(s)” as time-barred,
because Plaintiffs did not attempt to amend their Complaint by naming any of the “John/Jane
Doe(s)” within the applicable three-year statute of limitations period. See Barrow v.
Wethersfield Police Dep’t, 66 F.3d 466, 470 (2d Cir. 1995) (holding that the Section 1983 claims
against the individual officers were time-barred, in light of “[the plaintiff’s] listing of ten ‘John
Does’ in [the operative complaint], . . . because he did not know the arresting officers’ names”

violations of their Fourth Amendment rights to be free from unreasonable searches and seizures. 3
(Compl. ¶¶ 1, 37-44.)
Defendants now move for summary judgment dismissing Plaintiffs’ Section 1983 claims
(the “Motion”). (Dkt. No. 27.) This Court grants the Motion, for the reasons set forth below.
I.

Background
A. The Facts 4
On May 5, 2009, Judge James C. Hudson of the Supreme Court of New York, Suffolk

County (“New York Supreme Court”), issued a warrant to search the “entire premises” of
Santos’s residence at 105 Homestead Drive in Coram, New York, 5 without knocking and
announcing prior to entry. (Defs. 56.1 ¶¶ 1, 5.) The search warrant described Santos’s residence
as a two-story house with a tan-and-gray-stone exterior and covered patio with white columns,

and his filing of an amended complaint “identifying six police officers by name” only “after the
statute of limitations had run”), modified on other grounds, 74 F.3d 1366 (2d Cir. 1996); see also
Tapia-Ortiz v. Doe, 171 F.3d 150, 151-52 (2d Cir. 1999) (per curiam) (“Although [the plaintiff]
filed his complaint naming the defendant officers as ‘John Does’ within the three-year statute of
limitations period, ‘[i]t is familiar law that ‘John Doe’ pleadings cannot be used to circumvent
statutes of limitations because replacing a ‘John Doe’ with a named party in effect constitutes a
change in the party sued.’”) (quoting Aslanidis v. U.S. Lines, Inc., 7 F.3d 1067, 1075 (2d Cir.
1993)).
3

To be accurate, as Defendants are state and not federal officers, Plaintiffs’ rights are
“under the Fourth Amendment, as applied to the States under the Fourteenth Amendment[’s]
Due Process Clause.” Southerland v. City of N.Y., 680 F.3d 127, 132 n.1 (2d Cir. 2012)
(quotations omitted; modification in original).
4

This Court construes any disputed facts in the light most favorable to Plaintiffs, as the
non-moving parties, for purposes of the Motion. See Adickes v. S.H. Kress & Co., 398 U.S. 144,
157-59 (1970) (Harlan, J.). However, where Plaintiffs either (i) admit or (ii) deny without citing
to admissible evidence certain of the facts alleged in Defendants’ Statement Pursuant to Local
Rule 56.1 (Dkt. No. 27-1 (“Defs. 56.1”)), this Court shall deem any such facts undisputed. See
Local Rules of the United States District Courts for the Southern and Eastern Districts of New
York 56.1(c)-(d). Standalone citations to “Defs. 56.1” denote that this Court has deemed certain
of Defendants’ alleged facts undisputed.
5

Coram is located in Suffolk County.

2

sitting on property surrounded by a chain-link fence. (Defs. Ex. C, at 1.) The search warrant
was based on the affidavit submitted by Defendant Joseph Zabbara (“Officer Zabbara”). 6 (Id.
¶ 1.)
The affidavit represented that an investigation by the SCPD, starting in July 2008,
revealed a web of drug organizations in Coram involving various participants in the sale and
resale of cocaine and prescription drugs. (Defs. Ex. D, at 54-56 ¶ 59, 159-60 ¶ 250.) This
investigation also revealed that three of these participants were Santos’s own brothers: Jose E.
Santos (“Jose”), Guillermo Santos (“Guillermo”), and Danny Santos (“Danny”) (collectively, the
“other Santos brothers”). (Id. at 83 ¶ 103, 89-90 ¶ 117; Pls. Ex. G, at 16.)
According to the affidavit, the SCPD’s investigation, through telephonic intercepts and
direct surveillance, suggested that these drug organizations were operating out of several
different properties. (Defs. Ex. D, at 159-60 ¶ 250.) The affidavit cited particularized findings
from this investigation to support its theory that the organization to which the other Santos
brothers belonged “operated, in part, out of [Santos’s] residence at 105 Homestead [Drive],
Coram, Suffolk County, New York”; and that this organization used Santos’s residence “to store
quantities of cocaine, to meet with other coconspirators and to conduct their sales of cocaine and
prescription pills” (id. at 89-90 ¶ 117):
•

On March 5, 2009, around 8 PM, the SCPD recorded a telephone call between
Jose and Danny: the two brothers agreed to meet “over at Marcel’s . . . where the
roosters are,” 7 after Danny asked about “ten more hard.” The SCPD confirmed

6

Defendant Raul Mercado (“Officer Mercado”) suggested that he had assisted in drafting
some of the affidavit, possibly the portions relating to Santos’s residence. (Dkt. Nos. 28-1–28-4
(“Pls. Exs.”), Ex. I, at 22-23.)
7

The SCPD subsequently seized fighting roosters from Santos’s residence. See infra.
Elsewhere, however, the affidavit cited conversations among other participants in the drug
organization that referenced “chickens” as code for cocaine. (See, e.g., Defs. Ex. D, at 116-17
3

this meeting by subsequently observing that Danny’s car arrived at and departed
from 105 Homestead Drive, and that Jose’s car was already parked outside.
According to the affidavit, the brothers met at Santos’s, “aka Marcel’s,”
residence, so that Jose could supply Danny “a quantity of crack cocaine, which
they referred to as ‘ten hard.’” (Id. at 82-84 ¶¶ 102-104.)
•

On March 29, 2009, in the late afternoon, the SCPD recorded several telephone
calls between Jose and Jorge Corona (“Jorge”). On the first call, Jorge reported
that he had remaining “four balls, nine hard and thirteen softies,” and Jose
suggested that they would thus require more of the “hard.” Both men agreed to
“see each other at Marcel’s.” Shortly after Jorge arrived at “Marcel’s,” Jose said,
on another call, “don’t you guys go in there, get out.” The affidavit represented
that the two men were planning to meet at Santos’s, “aka Marcel’s,” residence,
because Jorge, who worked for Jose, had sold certain amounts of cocaine and
specifically needed more crack cocaine. Jose, however, became worried about the
police watching Santos’s residence, and so he instructed Jorge to stay outside.
(Id. at 84-86 ¶¶ 105-108.)

•

On April 9, 2009, around 1:30 PM, the SCPD recorded a telephone call, during
which Guillermo asked his brother Jose whether he was going “[t]o where Marcel
is to pick up the stuff.” The affidavit represented that the “stuff” referred to some
“quantity of cocaine” at Santos’s, “aka Marcel’s,” residence. (Id. at 86-87 ¶¶ 10910.)

•

On April 28, 2009, in the late afternoon and early evening, the SCPD recorded
several telephone calls and text messages between Danny and Chris Caro
(“Chris”), another alleged participant. Danny texted Chris saying, “I’ve got you
45 10s for now.” Chris later called to see if Danny had “anything more than that
tonight,” and informed Danny that, although “I’ll pick those up now, I’m
definitely going to need more.” The two men conversed again in an hour, at
which time Danny directed Chris to turn left onto “Homestead drive.” After Chris
turned onto Homestead Drive, Danny said, “I’m at one oh five, just uh go down
the road.” According to the affidavit, Danny directed Chris to meet him at
Santos’s residence to pick up the “45 10s,” meaning 45 Percocet pills. (Id. at 8789 ¶¶ 111-16.)

The affidavit thus claimed that the SCPD had “probable cause” to search—among the
properties implicated by this investigation—the residence at 105 Homestead Drive, which was
“occupied by Jose M. Santos aka Marcel and other persons as yet unknown” but used by “Jose E.

¶¶ 168-69 (“Listen, the the chicken has been out since, since, since ten in the morning”; affiant
opining, based on the investigation, that “chicken” refers to cocaine).)

4

Santos . . . and his co-conspirators” to operate their drug organization. (Id. at 145 ¶ 224, 152-53
¶ 239, 168 ¶ 264.)

Such a search could potentially produce relevant evidence, including

(i) cocaine and prescription drugs, (ii) supplies for storing, weighing, and packaging these drugs,
and/or (iii) proceeds and records from the sale of these drugs. 8 (Id.)
Plaintiffs, however, allege that the affidavit omitted information showing that Santos
“was not connected in any way to the alleged drug transactions or conspiracy,” which they argue
would have defeated the New York Supreme Court judge’s probable cause determination (Dkt.
No. 29 (“Pls. Br.”), at 4-6):

8

New York law provides that “[t]he application [for a search warrant] may also
contain[] . . . [a] request that the search warrant authorize the executing police officer to enter
premises to be searched without giving notice of his authority and purpose, upon the ground that
there is reasonable cause to believe that (i) the property sought may be easily and quickly
destroyed or disposed of, or (ii) the giving of such notice may endanger the life or safety of the
executing officer or another person[].” N.Y.C.P.L. § 690.35(4)(b); see also Richards v. Wis.,
520 U.S. 385, 396 n.7 (1997) (Stevens, J.) (“A number of States give magistrate judges the
authority to issue ‘no-knock’ warrants . . . . The practice of allowing magistrates to issue noknock warrants seems entirely reasonable when sufficient cause to do so can be demonstrated
ahead of time.”).
To substantiate no-knock searches of Santos’s residence and the remaining properties, the
affidavit additionally represented that the specific drug organizations being investigated by the
SCPD, including the one to which the other Santos brothers belonged, demonstrated a significant
“degree of cautiousness”; for instance, these organizations only sold cocaine and prescription
drugs to the participants’ personal acquaintances. (Defs. Ex. D, at 172-73 ¶ 271.) The affidavit
also represented that these organizations sold cocaine and prescriptions drugs which were “easily
disposed [of],” and that their participants were characteristically “paranoid and suspicious.” (Id.
at 174-75 ¶¶ 273-74.) Finally, the affidavit represented that Danny, in particular, had
participated in certain recorded conversations about obtaining a handgun. (Id. at 174 ¶ 272.)
For these reasons, the affidavit claimed that “the objectives of this investigation could be
jeopardized by giving advanced warning of the execution of these search warrants to the
occupants of the previous described residence located at . . . [inter alia] 105 Homestead Drive,
Coram, Suffolk County, New York.” (Id. at 172-73 ¶ 271.) Specifically, “advanced warning”
could result in relevant evidence being destroyed beforehand and also endanger the lives of the
SCPD officers. (Id. at 175 ¶ 275.)

5

•

The SCPD recorded telephone calls on which Santos participated, including calls
with the other Santos brothers. None of these calls involved conversations
regarding, or the use of code for, drugs. (Pls. Ex. G, at 15-20.)

•

The SCPD had not observed Santos at any of the “undercover buys” or “hand-tohand transactions” during its investigation. (Id. at 23, 31.)

•

The SCPD’s surveillance of Santos’s residence and the store where Santos
worked did not conclusively show that he was present for any drug-related
“meets” at either location. (Id. at 31-34, 47-48.)

•

The SCPD lacked probable cause to arrest Santos on any basis relating to its
investigation, before searching his residence, whereas it had probable cause to
arrest the other Santos brothers “regardless of the search.” (Id. at 30-31, 36-37.)

•

The SCPD reviewed records for Santos’s bank accounts and wire transfers; these
records were “inconclusive” as to any suspicious transactions which could suggest
that he was concealing proceeds from the sale of drugs. (Id. at 93-96.)

During his deposition, Officer Zabbara acknowledged the omission of the above information
about the SCPD’s investigation, but observed that such information was not “relevant
to . . . establishing probable cause” to search Santos’s residence. (Id. at 20.)
On May 8, 2009, around 4:50 AM, Officer Mercado and Defendant Robert Strecker
(“Officer Strecker”), along with other SCPD officers in the Narcotics and Emergency Services
Sections, executed the previously-issued search warrant for Santos’s residence, pursuant to a
“tactical plan.” 9 (Defs. 56.1 ¶ 3; Defs. Ex. E, at 1-2; Pls. Ex. I, at 30.) According to Officer
Mercado, he and other officers in the Narcotics Section met ahead of time to review the
“information that we would pass on to our emergency service section”—mainly, safety issues
and objectives relating to this search—and relayed that information to the officers in the
Emergency Services Section. (Pls. Ex. I, at 30-32.) The record reflects conflicting testimony

9

Defendant Calvin Powell (“Officer Powell”) played no role in issuing or executing this
search warrant. (Defs. 56.1 ¶ 4.) Accordingly, this Court dismisses all claims against Officer
Powell, as they are undisputedly without any factual basis.

6

over whether Officer Mercado or Officer Zabbara controlled the logistics for safely and
effectively carrying out this search. (Compare Pls. Ex. I, at 30, 32 with Pls. Ex. G, at 59-60, 97.)
On the actual day of this search, the officers in the Narcotics and Emergency Services Sections
assembled 20 minutes in advance to make last-minute preparations. (Defs. Ex. E, at 1.)
To execute the search warrant, the SCPD officers in the Emergency Services Section
began by entering Santos’s residence, without knocking or otherwise announcing their presence,
and proceeded to secure the entire premises. (Defs. Ex. E, at 2; Pls. Ex. I, at 32-33.) According
to Santos, these officers broke in and threw “bombs” that caused the floors to “come[] up” and
dislodged the nails in the ceiling. (Pls. Ex. H, at 44-45.) These officers also aimed their guns at
Santos and his wife and three children who were also at the residence. (Defs. Ex. E, at 2; Pls.
Ex. H, at 56.) Santos also stated that the initial execution of the search warrant “messed up the
house” and traumatized his children. (Pls. Ex. H, at 44, 49.)
Only after the SCPD officers in the Emergency Services Section secured the entire
premises did Officers Mercado and Strecker, along with other officers in the Narcotics Section,
conduct the search itself. (Defs. Ex. E, at 2; Pls. Ex. I, at 32-33.) Officer Mercado and “one
other detective” in the Narcotics Section, whose name Officer Mercado could not recall,
continued the search into the backyard of Santos’s residence. 10

(Defs. Ex. F, at 42, 44.) The

backyard was approximately less than a half-acre in size. (Id. at 50.)
In the backyard, Officer Mercado saw an extension cord that ran from the residence to an
outdoor shed, which “seemed odd” and potentially the source of something illegal. (Id. at 43.)
Officer Mercado decided to search the shed. (Id. at 44.) Officer Mercado did not recall

10

Defendants, in their reply brief, concede that the “other detective” was Officer Strecker.
(Dkt. No. 27-10 (“Defs. Reply”), at 5.)

7

“breaking into” the shed, and later recounted that he had been able to see the “roosters in the
shed” from the outside. (Id. at 44, 49.) Upon entering the shed, Officer Mercado observed that
the roosters were in boxes, and they had waddles which were “surgically removed” and wore
bracelets with razors around their legs. (Id. at 44-45.) Based on these observations, and his
experience on other investigations involving animal fighting, Officer Mercado concluded that
these roosters “were the fighting type . . . for obvious reasons.” (Id. at 44-46; Defs. 56.1 ¶ 8.)
The SCPD arrested Santos solely for possessing fighting roosters on the premises. 11
(Defs. Ex. E, at 2.) At the SCPD’s request, the SCPA subsequently came and removed 14 of
these roosters. (Defs. Ex. E, at 3; Defs. Ex. F, at 47.) The SCPD also seized two cellular
telephones, cash, and a case of assorted papers from the kitchen and master bedroom inside
Santos’s residence. (Defs. Ex. E, at 2-3.) Ultimately, however, nothing that the SCPD seized
supported the drug-related activities it had been investigating. (Pls. Ex. G, at 25.)
B. Procedural History
On May 25, 2011, Plaintiffs filed the Complaint in this “civil rights action” under Section
1983.

(Compl. ¶ 1.)

The Complaint claims that Defendants violated Plaintiffs’ Fourth

Amendment rights, alleging that (i) Officer Zabbara obtained the search warrant by submitting
the affidavit which “contained information that Zabbara knew or should have known was false”
and ultimately lacked probable cause (id. ¶¶ 14-16, 37-38); (ii) Defendants, when executing the
search warrant without knocking or otherwise announcing their presence, “excessively searched”
Santos’s residence, in that they “forcibly entered the residence by breaking down the door,”
threw a “smoke bomb,” and brandished their guns (id. ¶¶ 19-27, 39-41); and (iii) Defendants

11

Santos insisted at his deposition that “[m]y brother had [the roosters] there. I don’t know
what he had them there for.” (Pls. Ex. H, at 47.)

8

searched the “backyard of the premises” and then unlawfully seized the roosters found in the
shed (id. ¶¶ 32-34, 42). 12
On July 21, 2011, Defendants answered the Complaint. (Dkt No. 3, at 1.) The “doctrines
of qualified and/or absolute governmental immunity for discretionary acts” were among
Defendants’ affirmative defenses. (Id. ¶¶ 20-24.)
On May 13, 2013, Magistrate Judge E. Thomas Boyle certified that discovery was
complete. (Dkt. No. 20.) Accordingly, with this Court’s permission, the parties proceeded to
brief the Motion, pending before this Court. (Orders, dated June 7, 2013 and June 12, 2013.)

12

The Complaint also appears to assert claims directly against Suffolk County, the SCPD,
and the SCPA under Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978), based on purported
“policies and customs” that violated Plaintiffs’ Fourth Amendment rights. (Compl. ¶¶ 45-49.)
These Monell claims, however, are not properly asserted, as none of these entities are even
named as defendants in this case. See Pinero v. Casey, No. 10 Civ. 4803, 2012 WL 832509, at
*13 (S.D.N.Y. Mar. 13, 2012) (Francis, M.J.) (holding that “[t]he plaintiff does not name
Rockland County or the Town of Haverstraw as a defendant,” and alternatively holding that,
even if his complaint were to be “construed to allege Monell liability” against these entities, such
claims would still fail), report-recommendation adopted by, 2012 WL 1059674 (S.D.N.Y. Mar.
29, 2012) (Rakoff, J.).
Nor could any such claims be brought against the SCPD and the SCPA, as mere
“department[s] of [Suffolk] County.” See Manning v. Cnty. of Westchester, No. 93 Civ. 3366,
1995 WL 12579, at *2 (S.D.N.Y. Jan 5, 1995) (“[T]he caption of this action is amended to
remove the ‘Westchester County Police Department’ since the real party in interest, the County
of Westchester, is already a named defendant [in this Section 1983 case].”); see also Fanelli v.
Town of Harrison, 46 F. Supp. 2d 254, 257 (S.D.N.Y. 1999) (“Under New York law,
departments such as the Town of Harrison Police Department, which are merely administrative
arms of a municipality, do not have a legal identity separate and apart from the municipality and
cannot sue or be sued. . . . The Town of Harrison is named as a Defendant in this [Section 1983]
action, and the Town is the real party in interest.” (citations omitted)).
Even if the Complaint properly asserted a Monell claim against Suffolk County, Plaintiffs
have otherwise failed to adduce actual evidence of any Suffolk County “policy” that resulted in
the “single incident of unconstitutional activity” in which Defendants were allegedly involved.
City of Okla. City v. Tuttle, 471 U.S. 808, 823-24 (1985) (Rehnquist, J.). Rather, the actual
evidence solely relates to the alleged “incident” itself.

9

II.

Discussion
A. Standard of Review
1.

Summary Judgment

To obtain summary judgment in their favor on a “claim or defense” in this case,
Defendants, as the moving parties, must demonstrate that “there is no genuine dispute as to any
material fact,” and that they are “entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
This standard imposes the initial burden on Defendants to show the absence of any disputes
involving facts relevant to that claim or defense, which would allow a “reasonable jury” to
“return a verdict for” Plaintiffs, as the non-moving parties. 13 Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986) (White, J.); see Adickes, 398 U.S. at 159-60 (the moving party’s
“initial burden”). In other words, Defendants satisfy their burden by showing that the facts
favoring Plaintiffs are insufficient to establish a “genuine issue for trial,” because no possible
jury would find in Plaintiffs’ favor with respect to that claim or defense. Anderson, 477 U.S. at
249.

Facts which are “merely colorable” or “not significantly probative,” or amount to a

“scintilla . . . in support of [Plaintiffs’] position,” are insufficient. Id. at 249, 252. Where,
however, “reasonable minds” of a jury might “differ as to the import of the evidence,” and thus
disagree over which party should prevail on that claim or defense, summary judgment in
Defendants’ favor is improper. Id. at 250-51.

13

With respect to a claim for which Plaintiffs “bear the burden of proof at trial,” such a
showing as to any “essential element” of that claim “necessarily renders all other facts
immaterial,” Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986) (Rehnquist, J.), and entitles
Defendants to summary judgment, unless Plaintiffs subsequently “com[e] forward with evidence
that would be sufficient, if all reasonable inferences were drawn in [their] favor, to establish the
existence of that element at trial,” Turtur v. Rothschild Registry Int’l, Inc., 26 F.3d 304, 309 (2d
Cir. 1994).

10

Once Defendants meet their burden, Plaintiffs must “do[] more than simply rely on the
contrary allegation[s] in [their] complaint,” Adickes, 398 U.S. at 160, and must “go beyond the
pleadings and . . . designate ‘specific facts showing that there is a genuine issue for trial,’”
Celotex, 477 U.S. at 324 (quoting Fed. R. Civ. P. 56(e)). Plaintiffs “may not rely on mere
conclusory allegations nor speculation, but instead must offer some hard evidence showing that
[their] version of the events is not wholly fanciful.” D’Amico v. City of N.Y., 132 F.3d 145, 149
(2d Cir. 1998) (collecting cases).
2. Qualified Immunity
Qualified immunity shields Defendants, as “government officials performing
discretionary functions,” from liability for damages under Section 1983 “insofar as their conduct
does not violate clearly established statutory or constitutional rights of which a reasonable person
would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (Powell, J.). It is an
affirmative defense that Defendants bear the burden of proving. Id. at 815.
In determining whether this defense applies, courts often conduct a two-step analysis:
first considering whether there has been no “violation of a constitutional right”; and only then
considering the “qualified immunity” question of whether the right was not “clearly established
at the time.” Pearson v. Callahan, 555 U.S. 223, 232, 236 (2009) (Alito, J.) (quotations
omitted). “In answering that [second] question, we look to whether (1) the right was defined
with reasonable clarity, (2) the Supreme Court or the Second Circuit has confirmed the existence
of the right, and (3) a reasonable defendant would have understood from the existing law that his
conduct was unlawful.” Bailey v. Pataki, 708 F.3d 391, 404-405 (2d Cir. 2013); see also Saucier
v. Katz, 533 U.S. 194, 202 (2001) (Kennedy, J.) (“The relevant, dispositive inquiry in
determining whether a right is clearly established is whether it would be clear to a reasonable
officer that his conduct was unlawful in the situation he confronted.”), overruled in part on other
11

grounds by Pearson, 555 U.S. 223; Walczyk v. Rio, 496 F.3d 139, 166 (2d Cir. 2007)
(Sotomayor, J., concurring) (“[W]hether a right is clearly established is the same question as
whether a reasonable officer would have known that the conduct in question was unlawful.”
(emphasis in original)). 14
Courts, however, “may, in [their] own discretion, refrain from determining whether a
constitutional right has been violated and instead move directly to the question of qualified
immunity.” Costello v. City of Burlington, 632 F.3d 41, 51-52 (2d Cir. 2011) (Pooler, J.,
concurring); see also Pearson, 555 U.S. at 232, 236 (holding that the courts have “sound
discretion” to “begin[] and end[]” their analysis with qualified immunity without deciding
whether a constitutional violation existed). Such an exercise of discretion, in altogether avoiding
the constitutional question, can appropriately “save[] scarce judicial resources,” where “it is
beyond reproach that the conduct was not objectively unreasonable in light of existing law.”
Coollick v. Hughes, 699 F.3d 211, 219 (2d Cir. 2012).
B. The Search
1. Issuance of the Warrant 15
The Fourth Amendment, in protecting against “unreasonable searches and seizures,”
specifically provides that “no Warrants shall issue, but upon probable cause.” U.S. Const.
amend. IV. Plaintiffs oppose summary judgment by claiming that the search warrant for Santos’s

14

“There is some tension in our Circuit’s cases as to whether the qualified immunity
standard is of two or three parts, and whether the ‘reasonable officer’ inquiry is part of step
two—the ‘clearly established’ prong—or whether it is a separate, third step in the analysis.”
Bailey, 708 F.3d at 404 n.8.
15

Plaintiffs have solely adduced evidence showing that Officer Zabbara, and possibly
Officer Mercado, had a role in procuring the search warrant for Santos’s residence. As such, this
Court construes Plaintiffs’ claim involving the issuance of the search warrant against these two
officers. This claim, insofar as it is also asserted against Officer Strecker, is dismissed.

12

residence, as issued, lacked probable cause, in light of the alleged omissions from the affidavit.
(Pls. Br., at 3-8.) Judging by the cases on which they principally rely, Defendants’ argument for
summary judgment dismissing this claim sounds in qualified immunity. (Dkt. No. 27 (“Defs.
Br.”), at 2-3; Defs. Reply, at 1-3.) This Court exercises its discretion to dismiss this claim solely
on that basis.
The Second Circuit has held that “the issuance of a search warrant (which depends, of
course, on a finding of probable cause) creates a presumption that it was objectively reasonable
for the officers to believe that the search was supported by probable cause.” Martinez v. City of
Schenectady, 115 F.3d 111, 115 (2d Cir. 1997) (emphasis added) (citing Golino v. City of New
Haven, 950 F.2d 864, 870 (2d Cir. 1991)); see also Messerschmidt v. Millender, 132 S.Ct. 1235,
1245 (2012) (Roberts, C.J.) (“Where the alleged Fourth Amendment violation involves a search
or seizure pursuant to a warrant, the fact that a neutral magistrate has issued a warrant is the
clearest indication that the officers acted in an objectively reasonable manner[.]”). In other
words, the presumption created by the Second Circuit is that the issuance of a search warrant
does not violate a “clearly established” Fourth Amendment right, because a “reasonable” officer
would have considered his conduct in procuring that warrant to be constitutional; therefore, the
answer to the “qualified immunity” question as to such conduct is presumably yes.
Where an officer has allegedly misrepresented or omitted information in the affidavit to
support the issuance of a search warrant, he loses this presumptive “shield of qualified
immunity” on summary judgment, when the application of the aptly-termed “corrected-affidavit
doctrine” reveals a triable issue of fact. Golino, 950 F.2d at 870-71; Southerland, 680 F.3d at
143-44. The application of this doctrine involves deleting the alleged misrepresentations in, or
adding the alleged omissions to, the affidavit, and determining if these deletions or additions

13

would have reasonably defeated the probable cause to issue that search warrant. Velardi v.
Walsh, 40 F.3d 569, 573-74 (2d Cir. 1994) (Newman, C.J.) (citing, inter alia, Soares v. Conn., 8
F.3d 917, 920 (2d Cir. 1993)).
Determining whether the alleged misrepresentations or omissions in the affidavit were
“necessary to the finding of probable cause” is, in essence, a question about materiality. Velardi,
40 F.3d at 573-74. According to a line of Second Circuit cases, this materiality question is a
“mixed question of law and fact”: (i) the “legal component” of it is “whether the information is
relevant to a given question in light of the controlling substantive law”; and (ii) its “factual
component” is the “weight that a neutral magistrate would likely have given the above
information.” 16 Golino, 950 F.2d at 871-72; accord Southerland, 680 F.3d at 144; Velardi, 40
F.3d at 574. These cases represent that the “factual component” should be “resolved by the
finder of fact” and not on summary judgment, unless it is undisputed that the affidavit, as
corrected, could not have changed the magistrate’s mind about probable cause. Golino, 950 F.2d
at 872; Velardi, 40 F.3d at 574 & n.1; accord Southerland, 680 F.3d at 144.

16

There is a separate, and seemingly conflicting, line of Second Circuit cases that
characterizes materiality in this context as more a “matter of law” than a mixed question.
According to these cases, the purely legal question is whether no “officers of reasonable
competence could disagree” that the affidavit, as corrected, would be without probable cause. If
the answer is no, and at least some reasonable officers could disagree, then the alleged
misrepresentations or omissions in the affidavit are immaterial as a matter of law. Escalera v.
Lunn, 361 F.3d 737, 743-47 (2d Cir. 2004); accord Walczyk, 496 F.3d at 163; Cartier v. Lussier,
955 F.2d 841, 845-47 (2d Cir. 1992); but see Walczyk, 496 F.3d at 165 n.2 (Sotomayor, J.,
concurring) (disagreeing with “the majority’s . . . reliance on whether ‘officers of reasonable
competence could disagree,’” but agreeing with “its conclusion that questions of disputed fact
preclude judicial resolution of whether the officers are entitled to qualified immunity for their
search of [the plaintiff’s] house,” in light of the officers’ alleged omission) (Sotomayor, J.,
concurring). This Court is not in the position to resolve this purported conflict, nor is it required
to do so: Defendants are entitled to qualified immunity on summary judgment, even under the
arguably-stricter materiality standard set by the Golino line of cases.

14

This Court need not reach the “factual component” of materiality with respect to the
alleged omissions in the affidavit that accompanied the search warrant for Santos’s residence.
These omissions—all of which were about the unavailability of proof that Santos himself
participated in the same drug organization as his brothers—were legally irrelevant. See Velardi,
40 F.3d at 574 (“[T]he alleged misrepresentations must be legally relevant to the probable cause
determination[.]”); Soares, 8 F.3d at 921 (“[S]uch information is simply irrelevant to the
question whether there was probable cause[.]”).
Nothing about the affidavit implicated Santos’s involvement in the drug organization, let
alone relied on such an implication to show probable cause. Velardi, 40 F.3d at 575 (holding
that any alleged omissions of the fact that “[an occupant of the residence to be searched] had not
been seen armed or that no alleged drug transactions had taken place at the residence to be
searched” were immaterial, as “[t]he affidavits [for the search warrant] did not imply that [the
occupant] was armed or was dealing narcotics in his home”). Nor was it necessary to directly
implicate Santos in procuring the search warrant, because the affidavit demonstrated “probable
cause to believe that evidence of the . . . narcotics business would be found at” Santos’s
residence based on evidence that other participants in the drug organization used his residence to
run their business. Id. at 574.
By arguing that the affidavit’s alleged omissions regarding evidence that “tended to
exonerate” Santos were “relevant to a determination of probable cause for the search” (Pls. Br.,
at 6), Plaintiffs blur the distinction between the probable cause for issuing search warrants, as
opposed to arrest warrants: “The critical element in a reasonable search is not that the owner of
the property is suspected of crime but that there is reasonable cause to believe that the specific
‘things’ to be searched for and seized are located on the property to which entry is sought.”

15

Zurcher v. Stanford Daily, 436 U.S. 547, 556 (1978) (White, J.). The fact that Santos did not
participate in drug-related activities was irrelevant to the role that his residence played in
facilitating these activities, which provided the probable cause to search the premises.
Plaintiffs cite the portion of Officer Zabbara’s testimony, in which he stated that
information calling into question Santos’s involvement was omitted, insofar as it did not
“establish[] probable cause” for the search warrant. (Pls. Br., at 4.) Plaintiffs’ apparent purpose
for citing this testimony is to foster the false impression that, in declining to include information
that did not support probable cause, Officer Zabbara necessarily omitted information that
defeated it. The information that Officer Zabbara omitted, however, neither supported nor
defeated probable cause in this case. Significantly, Officer Zabbara clarified that a lack of
probable cause to arrest Santos is “not what normally goes in” an affidavit to search his
residence. (Pls. Ex. G, at 37.) Officer Zabbara explained that, even though he “didn’t have the
probable cause to believe that [Santos] was directly involved,” he did have the probable cause to
believe that “people involved in the conspiracy,” such as the other Santos brothers, had been
using Santos’s residence to conduct drug-related activities. (Id. at 81-82.) Officer Zabbara
observed that, as such, “it really wouldn’t matter if [Santos] was there or not” for any drugrelated “meets” at his residence. (Id. at 32.) In short, Officer Zabbara omitted information as to
whether Santos was involved in his brothers’ drug organization, but only because such
information had no bearing whatsoever on the probable cause to search Santos’s residence.
Accordingly, as these alleged omissions were irrelevant, their addition to the affidavit
would not have defeated probable cause and thus would not have been entitled as a matter of law
to any weight from the New York Supreme Court judge issuing the search warrant. As such, the
“corrected-affidavit doctrine,” as applied in this case, does not create a single triable issue

16

sufficient to overcome the presumption that Defendants’ liability in obtaining the search warrant
should be precluded by qualified immunity. This Court therefore dismisses, on the basis of
qualified immunity, Plaintiffs’ claim involving the issuance of the search warrant.
2. Execution of the Warrant 17
Even where a search warrant was lawfully issued, the Fourth Amendment’s protection
against “unreasonable searches and seizures” would still apply to “ensure reasonableness in the
manner and scope of searches and seizures that are carried out” pursuant to that search warrant.
Ayeni v. Mottola, 35 F.3d 680, 684 (2d Cir. 1994) (Newman, C.J.) (emphasis added), abrogated
on other grounds by Wilson v. Layne, 526 U.S. 603 (1999) (Rehnquist, C.J.); see also Zurcher,
436 U.S. at 559-60 (declining “to assert that searches, however or whenever executed, may never
be unreasonable if supported by a warrant issued on probable cause”). In their opposition
brief, 18 Plaintiffs claim that, after storming into Santos’s residence, the SCPD officers

17

Plaintiffs have not adduced, nor does the record reflect, any evidence demonstrating that
Defendants personally participated in securing entry to search Santos’s residence, which
constitutes the basis for Plaintiffs’ claim involving the execution of the search warrant. Such
action was taken by other SCPD officers in the Emergency Services Section alone. At best, this
Court construes this claim against Officers Zabbara and Mercado, because the record raises at
least a triable issue as to these two officers’ control over the logistics for carrying out the search.
See Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (Newman, C.J.) (“It is well settled in this
Circuit that personal involvement of defendants in alleged constitutional deprivations is a
prerequisite to an award of damages under §1983. . . . [A] defendant who occupies a supervisory
position may be found personally involved in the deprivation of a plaintiff’s constitutionally
protected liberty interests[.]” (quotations omitted)); accord Bravo v. City of Santa Maria, 665
F.3d 1076, 1090 (9th Cir. 2011) (holding that the officers of one police department were not
“integral participants” in a search involving flashbang devices as carried out by the officers of
another police department, where the former “neither had tactical command over service of the
warrant on the [plaintiffs’] residence nor supervised the [latter] in their execution of the
warrant”). This claim, insofar as it is also asserted against Officer Strecker, who was present for
but exercised no control over the initial entry, is dismissed.
18

Plaintiffs, in their opposition brief, do not claim that the execution of the search warrant
was unreasonable, based on allegations that the SCPD officers did not knock or announce and
broke down the door to Santos’s residence; accordingly, to the extent that they were asserted in
17

unreasonably executed the search warrant by deploying a “flashbang device or concussion
grenade.” 19 (Pls. Br., at 8-9.) Defendants expressly argue that they are entitled to summary
judgment dismissing this claim, both on the merits and on the basis of qualified immunity.
(Defs. Reply, at 3-4, 6.) As with Plaintiffs’ prior claim, this Court precludes their present claim
based on qualified immunity, without resolving whether, in carrying out the search, the SCPD
officers’ deployment of a flashbang device under the circumstances was “unreasonable” and
therefore violated the Fourth Amendment.
“An officer conducting a search is entitled to qualified immunity where clearly
established law does not show that the search violated the Fourth Amendment.” Pearson, 555
U.S. at 243-44. As a starting point to assessing whether an officer violated a Fourth Amendment
right “clearly established” by law at the time he acted, the Second Circuit “puts significant
weight on whether or not the law was governed by controlling precedent of this Circuit.” Young
v. Cnty. of Fulton, 160 F.3d 899, 903 (2d Cir. 1998). This assessment, however, does not end
there: even in the absence of Supreme Court and Second Circuit precedent, “[d]ecisions of other
circuits also may indicate whether the law was clearly established.” Varrone v. Bilotti, 123 F.3d
75, 79 (2d Cir. 1997). Additionally, it could be “obvious from the general principles of the

the Complaint, these claims are considered abandoned. See, e.g., Avola v. Louisiana-Pacific
Corp., No. 11-CV-4053, 2013 WL 4647535, at *5 (E.D.N.Y. Aug. 28, 2013) (Chen, J.)
(collecting cases). The same is true of any such claim based on the allegation that the SCPD
officers “pointed guns at Jose M. Santos, Jeny Santos, S.S., J.S. and Giselle Santos” (Pls. Br., at
8), which Plaintiffs merely mention but do not discuss. See Katzman v. Essex Waterfront
Owners LLC, 660 F.3d 565, 567 n.1 (2d Cir. 2011) (per curiam) (“Because the briefs lack
meaningful argument relating to any other claims . . . , we treat those issues as abandoned.”
(citing Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998))).
19

Justice Souter, sitting by designation on the First Circuit, recently described a flashbang
device as a “non-lethal grenade that explodes with a stunning combination of light and noise, to
freeze the inhabitants of the house at the moment the police enter.” U.S. v. Lopez Garcia, 672
F.3d 58, 62 (1st Cir. 2012) (Souter, J.).

18

Fourth Amendment that the conduct of the officers . . . violated the Amendment,” without any
“pre-existing law” in this and other Circuits. Wilson, 526 U.S. at 615-16.
The question for this Court is, when Santos’s residence was searched in May 2009, did
the law “clearly establish[]” that the deployment of a flashbang device in similar situations
violated a right under the Fourth Amendment to be free from “unreasonable searches and
seizures”? This Court has not found, and the parties have not cited, any Supreme Court or
Second Circuit cases that recognize this right. Indeed, one of the two District Court decisions
cited by Plaintiffs, and discussed below, conceded that “binding precedent from the U.S.
Supreme Court or the Court of Appeals for the Second Circuit does not exist” concerning the
constitutionality of flashbang devices. Taylor v. City of Middletown, 436 F. Supp. 2d 377, 387
(D. Conn. 2006).
Nor have the other Circuits concluded that their precedents plainly prohibit the
deployment of flashbang devices. See, e.g., Bing v. City of Whitehall, 456 F.3d 555, 570 (6th
Cir. 2006) (“[The plaintiff’s] right not to endure a second flashbang device in these
circumstances, however, was not ‘clearly established.’ The Supreme Court has not clearly
established such a right, nor has this court or other circuits.”); Escobedo v. Bender, 600 F.3d 770,
786 (7th Cir. 2010) (conceding that “the contours of the constitutional implications of the use of
‘flash bang’ devices in general is not clear,” and citing the “relative paucity of judicial holdings
forbidding the use of flash bang devices as compared to other more fully developed areas of
Fourth Amendment jurisprudence”); Boyd v. Benton Cnty., 374 F.3d 773, 783 (9th Cir. 2004)
(“[W]ithout any guidance from this Circuit and an absence of non-binding authority that
otherwise clearly establishes the right, the officers here were not put on sufficient notice that
using a flash-bang [device] in these circumstances was unconstitutional.”); Kirk v. Watkins, No.

19

98-7052, 1999 WL 381119, at *4 (10th Cir. June 11, 1999) (holding that, even though the officer
“threw the flashbang device into the [plaintiffs’] bedroom without looking,” his conduct “did not
violate clearly established law”).
Certainly as of May 2009, there appeared to be ambiguity, at best, among the other
Circuits on the answer to this constitutional question. Some Circuits—such as the First, Seventh,
Eighth, and Tenth Circuits—declined to rule that the use of these devices was unconstitutional.
See, e.g., U.S. v. Boulanger, 444 F.3d 76, 84 (1st Cir. 2006) (“[W]e believe that the officers’
manner of entry [to search a residence for Oxycontin], including the use of the battering ram and
flash-bang grenade, was reasonable.”); Molina v. Cooper, 325 F.3d 963, 973 & n.6 (7th Cir.
2003) (holding that, in searching the residence occupied by the “head of a drug distribution
organization,” the officers acted reasonably in deploying flashbang devices, because these
devices “were not used in the presence of [his wife] or the children” who were in a different
room and “no one was harmed by” these devices, and noting that “we have voiced reservations
about the use of these devices in recent cases, although we have not gone so far as to find their
use unconstitutional”); U.S. v. Baker, 16 F.3d 854, 855-56 (8th Cir. 1994) (affirming “the district
court’s finding that the police reasonably believed the use of distraction devices was needed to
effect a safe entry” to search a residence for crack cocaine, where these devices were “used
without injury”); Kirk, 1999 WL 381119, at *2, 4 (holding that “the use of a flashbang device in
this case did not, in and of itself, constitute a violation of the [plaintiffs’] Fourth Amendment
rights,” in light of the “dangers the officers believed they faced” in conducting a no-knock search
of a residence containing drugs and guns, despite the fact that the device “started a fire which
burned the [plaintiffs]”).

20

Other Circuits—like the Third, Sixth, and Ninth Circuits—sought to restrict such use by
ruling that it violated the Fourth Amendment, but only in situations where these devices were
deployed knowing that serious injury to individuals would, and did, occur. See, e.g., Smith v.
Marasco, 430 F.3d 140, 146, 151-52 (3d Cir. 2005) (holding that not only was the officers’ use
of flashbang devices in seizing the plaintiff unconstitutional, but also “a reasonable officer would
have recognized” that it was, based on their “knowledge of [the plaintiff’s] medical condition”
from which he died as a result); Bing, 456 F.3d at 569-70 (holding that, in carrying out a “de
facto house arrest,” the police’s use of the first flashbang device was “reasonable,” but that their
use of the second flashbang device probably was not, because they knew that this device would
start a fire which “posed a mortal threat” and subsequently killed the plaintiff); Boyd, 374 F.3d at
778-79 (holding that, in the context of a search, it was unreasonable to “throw [the flashbang
device] ‘blind’ into a room occupied by innocent bystanders,” where one of those bystanders
“suffered burns on her forearm when the device ignited”).
Even if the second set of Circuit decisions sufficed to establish the “contours,” or some
semblance, of a Fourth Amendment right against flashbang devices in the above situations,
Anderson v. Creighton, 483 U.S 635, 640 (1987) (Scalia, J.), such a situation does not exist in
this case. Not a “scintilla” of evidence on summary judgment suggests that the SCPD officers
deployed a flashbang device knowing that they would injure, and in fact injured, Santos and his
wife and children. Nor does that evidence even suggest that anyone was in the area where the
flashbang device went off.
In sum, at the time that the SCPD officers searched Santos’s residence, the “state of the
law” in this and other Circuits—addressing whether their conduct in deploying a flashbang
device, without injuring, or disregarding a known risk of injuring, any of the residents, was

21

unconstitutional—remained “undeveloped.” Wilson, 526 U.S. at 617. Indeed, the state of the
law in this area is still unsettled. In light of this fact, “the officers in this case cannot have been
expected to predict the future course of constitutional law.” Id. (quotations omitted). These
officers thus did not, based on any “clearly established law,” violate a right under the Fourth
Amendment.
Plaintiffs cite only two District Court decisions from this Circuit, in claiming that the
SCPD officers’ deployment of a flashbang device was unconstitutional. (Pls. Br., at 8.) These
decisions, one of which is unpublished, cannot possibly satisfy the “clearly established”
standard.

Wilson, 526 U.S. at 616 (holding that “the parties have only identified two

unpublished District Court decisions,” which “cannot ‘clearly establish’ that [the disputed
conduct] violates the Fourth Amendment”). Even if they could satisfy this standard, any Fourth
Amendment right “clearly established” by these decisions is inapplicable in this case.
In Taylor v. City of Middletown, 436 F. Supp. 2d 377 (D. Conn. 2006), the only published
decision cited by Plaintiffs, the court considered if certain officers, in conducting a search for
cocaine at the plaintiffs’ residence, “unreasonably violated clearly established law” by deploying
a flashbang device that injured the plaintiffs. Id. at 379-80, 387. According to the court, a jury
could find that such a violation had occurred, as the evidence suggested that the officers
“intended to throw the device at” the plaintiffs. Id. at 386. Although the court acknowledged the
absence of any precedent precisely on point, it was unable to “conceive of a set of circumstances
that would permit an officer, contrary to the intended use of the device, to throw a flash-bang
device directly at a person.” Id. at 387. Put simply, the court concluded that such conduct,
despite the fact that no prior decisions deemed it unconstitutional, contravened a “general
constitutional rule.” Id. (quotations omitted).

22

As a secondary point, the court in Taylor also distinguished the case as one involving the
“calculated decision to use a non-lethal explosive device as a preemptive measure, which caused
actual physical injury.” Id. at 383 (emphasis added). In cases where a similar decision did not
cause any injury, other courts have held that such conduct “does not even invoke the protection
of the Fourth Amendment.” Id. at 383 & n.2. Indeed, this distinction appears also to reflect the
Circuit decisions cited above.
The second decision cited by Plaintiffs, Guizan v. Town of Easton, No. 09-CV-1436,
2012 WL 3775876 (D. Conn. Aug. 29, 2012), which is unpublished, solely cited Taylor to
support its sweeping conclusion that the “law regarding the use of flashbangs” was “clearly
established” by “clear principles,” though not by “specific precedent.” Id. at *15 (citing Taylor,
436 F. Supp. 2d at 387). In Taylor, however, the only right recognized as “clearly established”
was against the deployment of flashbang devices specifically aimed at someone. The court in
Guizan instead submitted that Taylor stood for the proposition that any challenge to these
devices—whether or not they targeted individuals—could survive summary judgment based on
qualified immunity, because their use is clearly “subject to the same Fourth Amendment
reasonableness analysis as other applications of force by police officers.” Guizan, 2012 WL
3775876, at *15. In so doing, the court construed Taylor’s holding too broadly.
The precise, and much narrower, holding in Taylor is instructive:

by supposedly

targeting, and thereby striking, the plaintiffs with the flashbang devices, the officers in that case
potentially violated a right “clearly established” by the “general principles of the Fourth
Amendment,” Wilson, 526 U.S. at 615-16, and, as such, were not entitled to qualified immunity
on summary judgment. The SCPD officers in this case did not engage in the same egregious
conduct, and this Court is not compelled to reach the same conclusion. As stated earlier, neither

23

Santos, nor his wife and children, suffered injuries as a result of the flashbang device deployed at
their residence. Additionally, there is not even a “scintilla” of evidence that the SCPD officers,
in deploying this device, directed it at, or intended to harm, anyone inside Santos’s residence.
Because the SCPD officers’ deployment of a flashbang device was not unconstitutional
as a matter of “clearly established law,” summary judgment, as a matter of law, based on
qualified immunity, is appropriate. This Court therefore dismisses Plaintiffs’ claim, which
entails the execution of the search warrant by the SCPD officers.
C. Scope of the Seizure
The Fourth Amendment further provides that reasonable searches and seizures shall be
conducted pursuant to warrants that “particularly describ[e] the place to be searched, and the
persons or things to be seized.” U.S. Const. amend. IV. This requirement restricts the scope of
warranted searches and seizures, by “mak[ing] general searches . . . impossible and prevent[ing]
the seizure of one thing under a warrant describing another.” Marron v. U.S., 275 U.S. 192, 196
(1927) (Butler, J.). Plaintiffs oppose summary judgment on their claim that, in searching and
subsequently seizing fighting roosters from the shed behind Santos’s residence, Officers
Mercado and Strecker acted unreasonably, as they “exceeded the scope of the search warrant”
which did not list the “roosters seized during the search.” (Pls. Br., at 10.) Defendants contend
that summary judgment on the merits of this claim is justified by the fact that they were
permitted to search the shed where the roosters seized were “in plain view.” (Defs. Reply, at 5;
see Defs. Br., at 4.) This claim must be dismissed, as no jury could possibly find for Plaintiffs.
A search warrant authorizes an officer to search the areas “defined by the warrant’s
description of the premises and the objects of the search, and by the places in which the officer[]
ha[s] probable cause to believe those objects may be found.” U.S. v. Kyles, 40 F.3d 519, 523 (2d
Cir. 1994) (citing Maryland v. Garrison, 480 U.S. 79, 84 (1987) (Stevens, J.)). Plaintiffs do not
24

expressly argue that Officers Mercado and Strecker lacked the authority to search the shed, and,
even if they did, this argument is unavailing.

The search warrant for Santos’s residence

authorized the SCPD officers to search for evidence of drug-related activities throughout the
“entire premises,” which included not only the residence itself but also the fenced-in property on
which it sat. (Defs. Ex. C, at 1.) Such authorization clearly contemplated that the search warrant
would cover the property behind the residence, as well as in front. Since the shed was situated
within this area, Officers Mercado and Strecker were also authorized to search it. The officers
suspected, in light of the extension cord that stretched between the residence and the shed, that
the shed contained something illegal, including but not necessarily limited to items related to the
investigation.
In U.S. v. Griffin, 827 F.2d 1108 (7th Cir. 1987) (Coffey, J.), the circuit court found that
the search warrant “expressly authorize[d] a search of ‘the premises,’” even though it also
referenced the residence and garage. Id. at 1113-15. As such, it too held that the officers had
reasonably searched, and seized evidence from, the backyard and shed, because a legitimate
search would “extend to every part of the premises as specifically related in the language of the
search warrant in which the object of the search . . . ‘may be found.’” Id. (emphasis added). See
also U.S. v. Earls, 42 F.3d 1321, 1326-27 (10th Cir. 1994) (holding that “[t]he warrant
authorizing the search of the premises including the residence on that particular premises
permitted the search of the outbuildings,” i.e., the “detached garage, detached office, and shed”);
U.S. v. Pugh, No. 302-CR-69, 2003 WL 21220333, at *3 (D. Conn. May 21, 2003) (“Courts have
interpreted the scope of a warrant that defines a residence broadly as including not just the
residence itself, but also the land on which the residence sits as well as certain other structures on
that land.”). The situation in this case is substantially similar to the one in Griffin.

25

When searching among the areas authorized by a search warrant, an officer may
encounter, and then seize, evidence “in plain view,” whose illegality is “immediately apparent,”
even if such evidence is not otherwise specified in the warrant as something to be searched for.
Horton v. Cal., 496 U.S. 128, 134-35, 142 (1990) (Stevens, J.); see also Ruggiero v. Krzeminski,
928 F.2d 558, 561-62 (2d Cir. 1991) (describing the “‘plain view’ doctrine” after Horton). The
fact that an officer already knows, before searching these areas, that he will find plain-view
evidence beyond the object of the search is irrelevant. Horton, 496 U.S. at 140 (holding that “no
additional Fourth Amendment interest is furthered by requiring that the discovery of [plain-view]
evidence be inadvertent”).
In this case, Officers Mercado and Strecker searched the shed, which they were
authorized to do, as they suspected that it contained something illegal. Though the officers could
have believed that they might come across more than mere evidence covered by the search
warrant, they were allowed to seize such evidence, as long as it was “in plain view” and its
illegality was “immediately apparent.” The roosters seized from the shed were in boxes, but they
were out in the open. The razor-blade bracelets around the roosters’ legs and their “surgically
removed” waddles signaled to the officers that the roosters were possessed for the illegal purpose
of animal fighting.

Under the plain-view doctrine, it was reasonable for the officers to

subsequently seize the fighting roosters.
Thus, since Officers Mercado and Strecker searched the shed pursuant to the search
warrant pertaining to the “entire premises” of Santos’s residence, they reasonably seized the
roosters, which were obviously illegal. Plaintiffs’ claim that the search and subsequent seizure

26

of the fighting roosters from the shed was unconstitutional is without merit, such that no jury
could find for them. This Court therefore dismisses this claim. 20
III.

Conclusion
This Court GRANTS Defendants’ Motion, and dismisses with prejudice all claims

against them. The parties shall bear their own costs and fees. The Clerk of the Court is directed
to enter judgment accordingly.
SO ORDERED:

/s/ Pamela K. Chen
PAMELA K. CHEN
United States District Judge
Dated: October 28, 2013
Brooklyn, New York

20

Even if this Court were to conclude that the scope of the search and seizure with respect
to the shed was unconstitutional, it would still conclude that Officers Mercado and Strecker
could not have known that their conduct contravened “clearly established” law. In short, they
are also entitled to qualified immunity.

27