McKim et al v. County of Rensselaer et al

Filing 46

MEMORANDUM-DECISION and ORDER - That defendants' 31 and 33 Motions for Summary Judgment are GRANTED and plaintiffs' complaint is DISMISSED. That plaintiffs' 39 Cross-Motion to Amend/Correct is DENIED as moot. Signed by Judge Gary L. Sharpe on 6/28/2011. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
___________________________________
COLLEEN MCKIM and LARRY AARON,
Plaintiffs,

1:09-cv-650
(GLS/DRH)

v.
COUNTY OF RENSSELAER; HON. JACK
MAHAR, Rensselaer County Sheriff;
RENSSELAER COUNTY DEPUTY
SHERIFFS JOHN DOE AND RICHARD
ROE, individually and as agents, servants
and/or employees of the County of
Rensselaer; CITY OF TROY; TROY
POLICE OFFICERS MOE DOE AND
JOE DOE,
Defendants.
___________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFFS:
LaFave, Wein Law Firm
2400 Western Avenue
P.O. Box 1534
Guilderland, NY 12084

JASON A. FRAMENT, ESQ.
PAUL H. WEIN, ESQ.

FOR THE DEFENDANTS:
Rensselaer County Defendants
Bailey, Kelleher Law Firm
Pine West Plaza 5, Suite 507
Washington Avenue Extension
Albany, NY 12205

NANNETTE R. KELLEHER,
ESQ.
CRYSTAL R. PECK, ESQ.

Troy Defendants
City of Troy, Corporation Counsel
City Hall, One Monument Square
Troy, NY 12180

CHARLES A. SARRIS, ESQ.

Gary L. Sharpe
District Court Judge

MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiffs Colleen McKim and Larry Aaron commenced this action
pursuant to 42 U.S.C. § 1983 against the County of Rensselaer,
Rensselaer County Sheriff Jack Mahar, Rensselaer County Deputy Sheriffs
“John Doe” and “Richard Roe,” the City of Troy, and Troy Police Officers
“Moe Doe” and “Joe Doe,” alleging federal and state law claims for false
arrest and imprisonment, unlawful search and seizure, excessive force,
and a state law claim for common law trespass. (See Compl., Dkt. No.
1:2.) Pending are defendants’ motions for summary judgment, (Dkt. Nos.
31, 33), and plaintiffs’ cross-motion to amend their complaint to identify the
“Doe” defendants, (Dkt. No. 39). For the reasons that follow, defendants’
motions are granted, and plaintiffs’ cross-motion is denied as moot.

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II. Background
On July 3, 2008, at approximately 6:00 a.m., members of the
Rensselaer County Sheriff’s Department, Troy Police Department, and
other law enforcement agencies executed a “no-knock” search warrant for
the seizure of crack cocaine at plaintiffs’ first floor apartment at 17 101st
Street in Troy, New York.1 (See County Defs. SMF ¶¶ 50-53, 63, Dkt. No.
33:1.) In entering the premises, the officers used a battering ram to force
open the front door, causing damage to the door and the door locks. (See
Pls. Counter SMF ¶ 39, Dkt. No. 39:7; Pls. Resp. SMF ¶ 66, Dkt. No. 39:8;
County Defs. Mem. of Law at 13, Dkt. No. 44.) Upon entry, the officers
yelled “search warrant,” entered plaintiffs’ bedroom with guns drawn, and
told plaintiffs to get on the floor. (See County Defs. SMF ¶ 5, Dkt. No. 33:1;
Pls. Counter SMF ¶ 41, Dkt. No. 39:7.) At the time the officers entered the
bedroom, plaintiff McKim “was wearing only a bathrobe which was not tied
in the front,” and plaintiff Aaron was naked. (Pls. Counter SMF ¶ 40, 45,
Dkt. No. 39:7.) Both plaintiffs were handcuffed behind their backs while the
officers searched for evidence relative to the search warrant. (See id. at ¶

1

“[Plaintiff] Larry Aaron was the owner of 17 101st Street, Troy, New York,” and plaintiff
Colleen McKim, Aaron’s girlfriend, “resided with ... Aaron [at that address].” (County Defs.
SMF ¶ 50-51, Dkt. No. 33:1.)

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43.) During the search, McKim remained in the untied bathrobe, and Aaron
remained naked “until, at some point, the officers allowed him to put
underwear on.” (Id. at ¶¶ 44, 45.)
Shortly after the search began, McKim was taken into the bathroom
by a female officer and asked where drugs were located in the residence.
(See County Defs. SMF ¶¶ 57-58, Dkt. No. 33:1.) McKim told the officer
where marijuana could be found in the apartment, and also that a shotgun
was kept in the bedroom closet. (See id. at ¶¶ 59-60.) The contents of
plaintiffs’ bedroom closet where the shotgun was kept were emptied on the
bedroom floor. (See id. at ¶¶ 61-62.) According to plaintiffs, during the
emptying of their closet, “photographs were stepped on and [Aaron’s] dvd
collection was searched.” (Pls. Resp. SMF ¶ 64, Dkt. No. 39:8.)
Ultimately, both the shotgun and marijuana were found and confiscated.
(See County Defs. SMF ¶ 62, Dkt. No. 33:1.) At the conclusion of the
search, which lasted approximately one hour and forty-five minutes, “Aaron
was given an appearance ticket for violating ... New York State Penal Law
§ 221.05 – Unlawful Possession of Marijuana.”2 (Id. at ¶¶ 63, 68.) No

2

These charges were ultimately adjourned in contemplation of dismissal. (See County
Defs. SMF ¶ 70, Dkt. No. 33:1.)

4

cocaine was found in plaintiffs’ residence. (See id. at ¶ 71.)
The investigation leading up to the search of plaintiffs’ residence
apparently began on June 23, 2008, when a confidential informant (CI)
contacted Michael Riley, an Investigator with the Rensselaer County
Drug/Gang Task Force in the City of Troy. (See id. at ¶ 12.) The CI, who
had successfully performed four previous controlled buys for the
Rensselaer County District Attorney, told investigator Riley that he could
purchase crack cocaine from a specified individual in the City of Troy. (See
id. at ¶¶ 13, 14.) Investigator Riley and members of the City of Troy
Special Operations Section met with the CI to discuss details as to how he
could make the purchase. (See id. at ¶ 17.) That same day, Investigator
Riley set up a controlled buy with the CI. (See id. at ¶ 18.) At that time, the
CI was checked for contraband, and Investigator Riley provided the CI with
a transmitter and provider currency to effect the purchase. (See id. at ¶
19.) Ultimately, the CI successfully purchased crack cocaine and returned
to an agreed upon location. (See id. at ¶ 21.)
On June 25, the CI again telephoned Investigator Riley, informing
him that he had been taken to a “stash house” in the City of Troy. (See id.
at ¶ 23.) According to defendants, the CI told Investigator Riley that
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“there were a total of four locations in the City of Troy which were
maintained by two drug dealers known to the CI and involved in illegal drug
activities.” (See id. at ¶ 24.) In a written statement provided that same
day, the CI identified one of the drug dealers as “Stink” and described one
of Stink’s residences as an apartment on 6th and Glenn Avenue in Troy,
New York. (See Pls. Counter SMF ¶ 8, Dkt. No. 39:7.) The CI further
described the apartment as being on “the [first] floor of a white house,” but
stated that he would “have to show [the investigators] the house because
[he was] not sure of the number.” (Frament Aff., Ex. E, June 25, 2008 CI
Statement at 3, Dkt. No. 39:5.)
After the CI had given his statement, Investigator Riley had the CI
bring him to the four addresses identified to verify the location of each.
(See County Defs. SMF ¶ 27, Dkt. No. 33:1; Pls. Resp. SMF ¶ 27, Dkt. No.
39:8.) Defendants contend that “[u]pon arriving to the area of 6th and
Glenn, the CI advised Riley that he was mistaken about the cross-streets of
the residence”; “directed Investigator Riley to continue driving for
approximately one block”; and “then identified 17 101st Street as the correct
residence.” (County Defs. SMF ¶¶ 28-30, Dkt. No. 33:1.) Although a
statement of these events was recorded in a “Follow-Up Report” made later
6

that day, (see Riley Aff., Ex. B, Follow-Up Report, Dkt. No. 33:4), and the
CI later corroborated their occurrence in a second voluntary statement
given on July 1, 2008, (see Riley Aff., Ex. C, July 1, 2008 CI Statement,
Dkt. No. 33:4), plaintiffs, without any citation to the record, deny that these
events occurred, (see Pls. Resp. SMF ¶¶ 28-30, Dkt. No. 39:8 (denying
defendants’s assertions as “inadmissible hearsay and not ... facts”)).
In addition to the June 25 identification of plaintiffs’ residence,
defendants further contend that “[w]ithin the next 3-5 days, Investigator
Riley, together with his supervisor Investigator [Arthur] Hyde, again had the
CI take him to the locations identified.” (County Defs. SMF ¶¶ 7, 33, Dkt.
No. 33:1.) During the trip, defendants claim, “the CI provided information to
Investigators Riley and Hyde as to the activities occurring in each
residence”; “again identified 17 101st Street as a residence that he had
been to on at least two occasions in the past two weeks and witnessed
illegal drugs being sold”; and that “a drug dealer by the street name of
“Stink” resided in the first floor apartment [at that address] and sold drugs
out of the residence.” (See id. at ¶¶ 34-36.) In response to these factual
assertions, plaintiffs again baldly deny them as “inadmissible hearsay and
not ... fact[s].” (Pls. Resp. SMF ¶¶ 34-36, Dkt. No. 39:8)
7

On June 27, based on the CI’s representations, Investigator Riley
applied for the search warrant that ultimately supported the July 3 search.
(See id. at ¶ 39.) In total, Investigator Riley’s application sought the “noknock” entry and search of the four residences allegedly identified by the
CI, including plaintiffs’ residence. (See id. at 39-40.) In the application,
Investigator Riley stated that on June 25, 2008, the CI gave him “detailed
information regarding illegal drug dealings of persons known to the CI as
‘Stink,’ ‘Sport,’ and ‘Chuck,’” including that “‘Stink’ has custody and control
over three different addresses in the City of Troy ..., where [he] sells crack
cocaine and marijuana.” (Frament Aff., Ex. B, Warrant Appl. at 2, Dkt. No.
39:2.) The application lists one of the three addresses as “Seventeen
101st Street 1st Floor Apartment.” (Id.) With respect to that address,
Investigator Riley stated in the application that the CI told him that Stink
currently resided there with his girlfriend; “described the address as a large
white house next to a blue house near Sixth Avenue”; and “stated ... that
he had been inside of the Seventeen 101st Street 1st Floor Apartment with
‘Stink’ on two separate occasions within the past two weeks and on both
occasions, ‘Stink’ made crack cocaine sales from the apartment.” (Id. at 3.)
Investigator Riley further stated in the application that he “drove the CI to
8

the address,” and that “[t]he CI identified the address given as the correct
address.” (Id.) In addition, Investigator Riley averred that “the CI has given
information in the past that has proven to be both accurate and reliable and
which has led to five previous drug purchases and two search warrants,
which resulted in the seizure of illegal drugs and contraband.” (Id. at 2.)
And finally, Investigator Riley requested in the application that the “search
warrant authorize the executing Police Officers to enter the premises to be
searched without notice ... on the grounds that there is reasonable cause to
believe that: (1) The property sought may be easily and quickly destroyed
or disposed of, [and] (2) The giving of such notice may endanger the life or
safety of the executing Police Officers or another person.” (Id. at 4.) The
basis given for this belief was as follows:
Your deponent can state from personal experience that it is
common practice of persons who are involved in the illicit use
and trafficking of controlled substances to attempt to remove,
destroy, or dispose of said controlled substances if notice or
authority is given prior to the execution of said warrant. Also,
your deponent can state from personal experience, that by
giving prior notice of executing said warrant, the suspects will
have time to prepare themselves, and said residence, from the
officers making a forced entry, which may endanger the lives
and safety of the officers and persons inside said residence.
(Id.) Ultimately, finding that probable cause supported the warrant

9

application, Judge Matthew Turner of the City of Troy Criminal Court issued
the warrants sought, permitting the unannounced entry and search of the
listed premises. (See id.; County Defs. SMF ¶ 46, Dkt. No. 33:1.) About a
week later, on July 3, the warrants were executed. (See County Defs. SMF
¶ 48, Dkt. No. 33:1.)
A couple weeks later, on July 14, John F. Tedesco, then Assistant
Chief of the Troy Police Department, authored a memorandum to the then
Chief of the Troy Police Department, relating to the execution of the four
search warrants. (See Frament Aff., Ex. A, Tedesco Mem., Dkt. No. 39: 12
(filed under seal).) In the memo, Tedesco was critical of the supervisory
oversight and investigative efforts surrounding the incident. (See id.)
Tedesco concluded that:
Supervisory members of the Rensselaer County Drug Force
failed to provide sufficient oversight of this investigation. The
lack of corroboration of the CI’s assertions reflects shallow
investigative efforts. The points in the Analysis section of this
report ... are not extraordinary efforts. Rather they reference
basic investigative protocols that were ignored.
(Id. at 3.) Similarly, in deposition, Tedesco testified that he “did not feel
there was enough investigation to substantiate some of the things they
were told by the [CI] .... Principally the amount of narcotics that they felt

10

that they could secure.” (Thomas Aff., Ex. H, Tedesco Dep. at 23:5-14,
Dkt. No. 31:12.) Further, Tedesco opined that “they should have done
more investigation using at least [surveillance and controlled buys].” (Id. at
24.)
On May 4, 2009, plaintiffs commenced this action in New York State
Supreme Court, Rensselaer County, against the County of Rensselaer,
Rensselaer County Sheriff Jack Mahar, Rensselaer County Deputy Sheriffs
“John Doe” and “Richard Roe,” the City of Troy, and Troy Police Officers
“Moe Doe” and “Joe Doe, alleging federal and state law claims for false
arrest and imprisonment, unlawful search and seizure, and excessive
force, and a state law claim for common law trespass. (See Compl., Dkt.
No. 1:2.) On June 4, 2009, defendants removed the case to this court
based on federal question jurisdiction. (See Notice of Removal, Dkt. No.
1:3.)
III. Standard of Review
The standard for the grant of summary judgment is well established
and will not be repeated here. For a full discussion of the standard, the
court refers the parties to its previous opinion in Bain v. Town of Argyle,
499 F. Supp. 2d 192, 194-95 (N.D.N.Y. 2007).
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IV. Discussion
A.

Monell Claims
The City of Troy and County of Rensselaer argue that the claims

against them should be dismissed because plaintiffs have failed to allege
or offer evidence of any policy or custom that caused their alleged
constitutional injury. (See Troy Defs. Mem. of Law at 7-10, Dkt. No. 31:4;
County Defs. Mem. of Law at 6-9, Dkt. No. 33:2.)
“To hold a [municipality] liable under § 1983 for the unconstitutional
actions of its employees, a plaintiff is required to plead and prove ... (1) an
official policy or custom that (2) cause[d] the plaintiff to be subjected to (3)
a denial of a constitutional right.” Wray v. City of New York, 490 F.3d 189,
195 (2d Cir. 2007) (citation and internal quotation marks omitted). A
municipality’s “failure to train or supervise [its] employees may constitute
an official policy or custom if the failure amounts to ‘deliberate indifference’
to the rights of those with whom the ... employees interact.” Id. (citing City
of Canton v. Harris, 489 U.S. 378, 388 (1989)).
Here, in arguing that their claims against Rensselaer County and the
City of Troy should not be dismissed, plaintiffs contend that “[a] policy or
custom of failure to adequately train and misleading a local court Judge
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can be inferred from defendants’ ‘shallow investigative efforts.’” (Pls. Mem.
of Law at 17, Dkt. No. 39:10.) Plaintiffs base this contention on (1)
Assistant Chief Tedesco’s July 14 memorandum and subsequent
testimony, which were critical of defendants’ investigative efforts; (2)
Investigator Riley’s testimony that he “never” attaches a copy of an
informant’s criminal history to a search warrant application; and (3) the
alleged omissions and misrepresentations made in Investigator Riley’s
search warrant application. (See id. at 16-17.)
These contentions fail to establish an inference of the requisite
custom or policy. Even assuming that defendants’ investigation was
inadequate, that not attaching an informant’s criminal history to a search
warrant could amount to a constitutional violation, and that Investigator
Riley omitted and misstated key information in the search warrant
application, plaintiffs have offered no evidence suggesting any connection
between such misconduct and the training given or not given by the
municipal defendants. Absent that connection, plaintiffs’ failure to train
claims cannot survive. See Oklahoma City v. Tuttle, 471 U.S. 808, 830
(1985) (explaining that proof of a municipal employee’s unconstitutional
conduct is insufficient to establish inadequate training absent proof relating
13

to the nature of the training itself); Vogelsang v. Cnty. of Cayuga, No. 95CV-1123, 1998 WL 146293, at *5 (N.D.N.Y. Mar. 25, 1998) (explaining that
a claim for inadequate training requires a plaintiff to submit proof “focus[ing]
on the ‘adequacy of the training program in relation to the tasks the
particular employees must perform.’” (quoting Harris, 489 U.S. at 390)).3
Further, to the extent that plaintiffs are also attempting to allege
claims of inadequate supervision, those claims are similarly unsupported
by the record. Specifically, plaintiffs point to no evidence that any
decisionmaker was on notice of and failed to investigate a serious problem
of unconstitutional conduct, or that such conduct was condoned by the
municipal defendants. Thus, plaintiffs’ inadequate supervision claims
cannot survive. See Yang Feng Zhao v. City of New York, 656 F. Supp. 2d
375, 396 (S.D.N.Y. 2009) (citations omitted) (explaining that to establish a
3

See also Wray v. City of New York, 490 F.3d 189, 196 (2d Cir. 2007) (explaining that
where a municipality “has a training program, a plaintiff must ... identify a specific deficiency in
[that] program and establish that that deficiency is closely related to the ultimate injury, such
that it actually caused the constitutional deprivation” (citation and internal quotation marks
omitted)); Walker v. City of New York, 974 F.2d 293, 296 (2d Cir. 1992) (“[T]o establish
inadequate training, plaintiffs must put forward some evidence that the [municipality] itself has
acted or consciously not acted.” (citing Oklahoma City v.Tuttle, 471 U.S. 808, 832 (1985)));
Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991) (“[A] single incident ...,
especially if it involved actors below the policy-making level, does not suffice to show a
municipal policy.” (citations omitted)); Walker v. N.Y.C. Police Dep’t, No. 94 CV 3608, 1996 WL
391564, at *6 (E.D.N.Y. June 24, 1996) (granting summary judgment where “plaintiff’s
allegations of inadequate training [were] based solely on his own interactions with [an officer
and] ... plaintiff [did] not allege[] any specific training procedures that were not implemented”).

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claim for failure to supervise or discipline, “[a] plaintiff must demonstrate
that [a] decision-maker was on notice of a potentially serious problem of
unconstitutional conduct, that the need for corrective action was obvious,
and that the decision-maker failed to investigate or take action in
circumstances suggesting deliberate indifference to the rights of those
being harmed”).
Accordingly, absent evidence of a custom or policy leading to
plaintiffs’ alleged constitutional injuries, plaintiffs’ claims against the County
of Rensselaer and the City of Troy are dismissed. And because plaintiffs
attempt to establish liability against Rensselaer County Sheriff Jack Mahar
on the basis that “he created [such] a custom or policy,” (Pls. Mem. of Law
at 24-25, Dkt. No. 39:10), plaintiffs’ claims against Sheriff Mahar are also
dismissed.
B.

Unreasonable Search and Seizure
Defendants next argue that plaintiffs federal and state law claims for

unreasonable search and seizure should be dismissed because the entry
and search of plaintiffs’ residence was conducted pursuant to a valid
warrant. (See County Defs. Mem. of Law at 9-14, 16-17, Dkt. No. 33-2;
Troy Defs. Mem. of Law at 10-11, Dkt. No. 31:4.) Plaintiffs dispute this
15

contention, arguing that the affidavit submitted by Investigator Riley in
support of his warrant application contained false statements and omitted
various material facts, thereby rendering summary judgment on these
claims improper. (See Pls. Mem. of Law at 18-20, Dkt. No. 39:10.)
Both the Federal and New York State Constitutions protect citizens
from unreasonable searches and seizures. See Bancroft v. City of Mt.
Vernon, 672 F. Supp. 2d 391, 401 (S.D.N.Y. 2009). A search or seizure is
presumed reasonable when conducted pursuant to a warrant issued by a
neutral magistrate. See Martinetti v. Town of New Hartford Police Dep’t,
112 F. Supp. 2d 251, 252-53 (N.D.N.Y. 2000). Indeed, “a magistrate’s
determination that probable cause exists to support the issuance of a
warrant is entitled to great deference from a reviewing court,” and “[a]ny
doubt about the existence of probable cause must be resolved in favor of
upholding the warrant.” Bancroft, 672 F. Supp. 2d at 401 (citations
omitted). Accordingly, a plaintiff challenging the validity of a warrant faces
a “heavy burden.” See Golino v. City of New Haven, 950 F.2d 864, 870 (2d
Cir. 1991) (citation omitted); Rivera v. United States, 928 F.2d 592, 602 (2d
Cir. 1991). Specifically, that burden requires the plaintiff to make a
“‘substantial preliminary showing’ that the affiant knowingly and
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intentionally, or with reckless disregard for the truth, made a false
statement [or omitted material information] in his affidavit, and that
allegedly false statement [or omission] was ‘necessary to the finding of
probable cause.’” Golino, 950 F.2d at 870-71 (citations omitted).
Whether an item of information is “material”—and thus necessary to
the finding of probable cause—is “a mixed question of law and fact.” Id. at
871 (citation omitted). “The legal component depends on whether the
information is relevant to a given question in light of the controlling
substantive law,” and “[t]he factual component requires an inference as to
whether the information would likely be given weight by a person
considering that question.” Id. (citations omitted). Where relevancy is
identified, “questions of fact may arise as to what weight a neutral
magistrate would likely have given such information, and whether
defendants acted ‘deliberately or recklessly’ in omitting [or misstating] the
information [at issue].” Walczyk v. Rio, 496 F.3d 139, 158 (2d Cir. 2007)
(citations and internal quotation marks omitted). However, a court may still
grant summary judgment in such circumstances based on qualified
immunity “where the evidence, viewed in the light most favorable to the
plaintiffs, discloses no genuine dispute that a magistrate would have issued
17

the warrant on the basis of the ‘corrected affidavits.’” Id. (citation omitted).
Here, as noted above, plaintiffs argue that the search warrant issued
for the search of their residence does not defeat their claims for
unreasonable search and seizure because Investigator Riley omitted and
misstated material facts in the search warrant application. With respect to
omissions, plaintiffs state that the following items were omitted from the
search warrant application:
(1) The [CI’s] June 25, 2008 statement which makes no
reference to plaintiffs’ residence; (2) The [CI’s] criminal history;
(3) The investigator’s notes which make no reference to
plaintiffs’ residence; (4) Defendants’ supplemental report; (5)
The fact that the [CI] was paid for the buys; (6) The fact that the
[CI] did not grow up in Troy; (7) The Informant’s July 1, 2008
statement; and (8) The fact that defendants never observed
any criminal activity at plaintiffs’ residence even though it was
under surveillance.
(Pls. Mem. of Law at 19, Dkt. No. 39:10.) And as to false statements,
plaintiffs point to Investigator Riley’s representations that “[t]he [CI]
identified the address given as the correct address,” and that “[t]he CI
described the address as a large white house next to a blue house on Sixth
Avenue.” (Id. (quoting Frament Aff., Ex. B, Warrant Appl. at 3, Dkt. No.
39:2).) Plaintiffs claim that these statements were false because the CI
“gave the address of Stink’s residence as 6th and Glen [sic], not [the
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address of their] residence,” and because the CI’s June 25 statement made
no reference to Stink’s residence being “next to a blue house.” (Id.)
According to plaintiffs, given these disparities, the CI did not, as
Investigator Riley stated, “identify the address given as the correct
address.” (Id.) Plaintiffs’ contentions lack merit.
As to falsity, while plaintiffs rely on the CI’s initial statement that
Stink’s residence was located at 6th and Glenn, they have failed to rebut or
establish a question of fact as to the evidence corroborating the assertion
that the CI did indeed identify 17 101st Street as Stink’s residence. As
mentioned above, that evidence includes defendants’ June 25
“supplemental” or “Follow-Up” report and the CI’s July 1 statement, both of
which directly support the conclusion that the CI did, as Investigator Riley
averred in the warrant application, physically identify plaintiffs’ residence as
the “correct address.” (See Riley Aff., Ex. B, Follow-Up Report, Dkt. No.
33:4; id., Ex. C, July 1, 2008 CI Statement.) Other than disputing this
identification of their address in a conclusory, unsupported, and somewhat
inconsistent fashion, (see Pls. Reply SMF ¶¶ 28-36, Dkt. No. 33:1),
plaintiffs fail to even address this evidence or otherwise offer any
meaningful support for their contention that Investigator Riley’s statements
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as to the CI’s identification were false.
Plaintiffs’ attempt to invalidate the warrant based on Investigator
Riley’s other statement that the CI described Stink’s residence as being
“next to a blue house” is likewise unavailing. First, even if the court were to
assume the statement’s falsity, plaintiffs have failed to offer any evidence to
support the conclusion that the misstatement was made intentionally or
with reckless disregard for the truth. And second, even if such an intent
could be established, the court is not persuaded—and plaintiffs have made
no showing—that omitting the statement from the application would have
had any meaningful impact on the probable cause determination.
Accordingly, to the extent plaintiffs attempt to rely on Investigator Riley’s
allegedly false statements to invalidate the warrant, that attempt fails.
Plaintiffs’ contentions as to Investigator Riley’s omissions fare no
better. In the search warrant application, Investigator Riley stated—and
plaintiffs do not dispute—that “the CI ha[d] given information in the past that
has proven to be both accurate and reliable and which has led to five
previous drug purchases and two search warrants, which resulted in the
seizure of illegal drugs and contraband.” (Frament Aff., Ex. B, Warrant
Appl. at 2, Dkt. No. 39:2.) This assertion provided a sufficient basis to

20

conclude that the CI was credible, that the first-hand information provided
relating to drug activity at plaintiffs’ residence was reliable, and that there
was probable cause to believe that drugs and/or other evidence of drugrelated activity would be found at plaintiffs’ residence. See Bancroft, 672 F.
Supp. 2d at 402 (explaining that reliance on information from a single
confidential informant whose information has led to the recovery of
contraband in the past is sufficient to support a finding of probable cause).
Plaintiffs contend that the omitted information described above undermines
this conclusion. However, as consistent with the principles already
discussed, it is well established that “the law does not demand that an
officer applying for a warrant volunteer every fact that arguably cuts against
the existence of probable cause, as long as he does not omit
circumstances that are critical to its evaluation.” Walczyk v. Rio, 496 F.3d
139, 161 (2d Cir. 2007) (citation and internal quotation marks omitted).
And in this case, the court disagrees with plaintiffs that the omitted
information was critical to the probable cause determination or that its
inclusion would have defeated probable cause.
Initially, as to the CI’s criminal history and history of being paid for
past controlled buys, plaintiffs offer no explanation as to how these facts,

21

without more, could be viewed as material to the probable cause
determination, and have failed to allege facts suggesting that Investigator
Riley intentionally or recklessly omitted them from the warrant application.
Thus, plaintiffs’ reliance on these omissions is misplaced.
Plaintiffs reliance on the remaining omissions is also misplaced.
First, plaintiffs contend that defendants’ June 25 “supplemental” or “FollowUp” report and the CI’s June 25 and July 1 statements were improperly
omitted from the warrant application, seemingly arguing that the information
contained therein could be viewed as critically undermining the reliability of
the CI’s identification of the 101st Street address. The court disagrees.
In the June 25 statement, the CI identified 6th and Glenn as Stink’s
residence but explained that he would “have to show [the investigators] the
house because [he was] not sure of the number.” (Frament Aff., Ex. E,
June 25, 2008 CI Statement at 3, Dkt. No. 39:5.) Defendants’ “Follow-Up”
report, drafted that same day, states that after the CI’s statement was
given, Investigator Riley took the CI to addresses given to verify the
locations of each. (See Riley Aff., Ex. B, Follow-Up Report, Dkt. No. 33:4.)
During that trip, the report continues, the CI identified the 101st Street
address as “the same address [he] referr[ed] to in [his] deposition when

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[he] made reference to 6th Avenue in the area of Glenn Avenue.” (Riley
Aff., Ex. B, Follow-Up Report, Dkt. No. 33:4.) According to the report, “[t]he
CI stated that he did not grow up in Troy New York and was only using 6th
Avenue and Glenn Avenue as a reference point.” (Id.) The CI’s July 1,
2008 statement corroborated these events, stating that:
On June 25, 2008, I gave Investigator Riley a written statement
regarding drug dealings in the City of Troy and attempted to
describe where “Stink” lives. After the written statement, Riley
drove as I instructed him as to where to go. The correct
address is Seventeen 101st Street 1st Floor Apartment. I
pointed to and identified the house as Seventeen 101st Street.
In my original statement I made reference to the address of 6th
& Glenn Avenues. I did not grow up in Troy and don’t know the
city that well. That is why I was a little off in my original
description.
(Riley Aff., Ex. C, July 1, 2008 Statement, Dkt. No. 33:4.)
While the information contained in these omitted documents may
have given rise to some doubt as to the accuracy of the CI’s
representations, the court declines to credit plaintiffs’ largely unexplained
contention that such doubt would have had a critical impact on the probable
cause determination. Indeed, “probable cause deals with probability, not
certainty.” Speights v. City of New York, Nos. 98 CV 4635 & 98 CV 4636,
2001 WL 797982, at *4, (E.D.N.Y. June 18, 2001) (citing Rivera, 928 F.2d
at 602). And in this case, even if the CI’s initial misstatement could weigh
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against the CI’s credibility, a view of the facts in their totality—including the
CI’s undisputed track record of reliability and his subsequent physical
identification of plaintiffs’ residence, which was only a short distance from
the address initially given—weighs against a finding that such a probability
did not exist. Moreover, even if this information arguably should have been
included in the warrant application, plaintiffs have again failed to offer any
evidence suggesting that Investigator Riley omitted it intentionally or with
reckless disregard for the truth.
Further, and for largely the same reasons, the court is also
unpersuaded that the omission of Investigator Riley’s notes and the fact
that defendants did not personally observe criminal activity at plaintiffs’
residence—even when considered in light of other omissions—is sufficient
to invalidate the warrant. Specifically, in addition to the marginal impact
that such information would have had on the probable cause inquiry,
plaintiffs have again made no showing that this information was omitted
intentionally or with reckless disregard for the truth.
And finally, while plaintiffs place considerable emphasis on then
Assistant Chief Tedesco’s opinion that further investigative efforts should
have been undertaken, defendants’ failure to perform additional

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investigation was not constitutionally required. See Bancroft, 672 F. Supp.
2d at 402 (rejecting plaintiffs’ argument that police officers’ failure to
“conduct any independent investigation (other than talking with informant
and [other] police officers who had dealt with the informant in the past)
before presenting the warrant application” invalidated the warrant,
explaining that “there is no constitutional requirement that they do so, and
[that a] warrant is not infirm if the police choose to rely on an informant in
lieu of an investigation” (citation omitted)). Thus, to the extent that plaintiffs
are seeking to invalidate the warrant on the basis of defendants’ decision
not to engage in further investigation, that attempt is unavailing.
Ultimately, then, absent a showing that Investigator Riley intentionally
or recklessly misstated or omitted information critical to Judge Turner’s
probable cause determination, that determination is, as described above,
entitled to deference. And in line with that deferential review, this court is
required “simply to ensure that [Judge Turner] had a substantial basis for
concluding that probable cause existed.” Rivera, 928 F.2d at 602 (citation
and internal quotation marks omitted). Thus, given the circumstances set
forth in Investigator Riley’s search warrant application, including the CI’s
proven reliability and first-hand observations that drug activity was

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occurring at the addresses identified, the court finds that such a basis
existed and therefore dismisses plaintiffs’ federal and state law claims for
unreasonable search and seizure.
C.

False Arrest and False Imprisonment
Plaintiffs’ federal and state law claims for false arrest and false

imprisonment must also be dismissed. Specifically, while plaintiffs contend
they were unlawfully detained during the search of their apartment, it is well
settled that a warrant to search a home for contraband based on probable
cause implicitly carries with it authority to detain the occupants at the
premises while the search is conducted. Michigan v. Summers, 452 U.S.
692, 701-05 (1981). Thus, having already rejected plaintiffs’ contention
that the search warrant authorizing the July 3 search was not supported by
probable cause, and because plaintiffs’ detainment lasted no longer than
necessary to effectuate the authorized search, plaintiffs’ claims for false
arrest and false imprisonment are dismissed.
D.

Excessive Force
Plaintiffs’ state and federal claims for excessive force also fail. In

support of these claims, plaintiffs argue that because the search warrant
was not supported by probable cause, “any force the police used was
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excessive.” (Pls. Mem. at 21, Dkt. No. 39:10.) Plaintiffs also point to the
fact that “defendants used a battering ram on two doors to break into [their]
residence,” and that “defendants had guns trained on [them] to remain
handcuffed throughout the entire search.” (Id.) Plaintiffs’ arguments lack
merit.
First, in light of the court’s prior finding that the search warrant was
not deficient, plaintiffs’ argument that any force was per se unreasonable
must fail. Second, given the search warrant’s authorization to enter
plaintiffs’ residence unannounced, and because there is no evidence
suggesting that a less intrusive entry was possible, the court discerns no
basis to conclude the defendants’ use of force in entering plaintiffs’
residence was unreasonable. And third, as defendants correctly observe,
“[i]nherent in [the] authorization to detain an occupant of the place to be
searched is the authority to use reasonable force to effectuate the
detention.” Muehler v. Mena, 544 U.S. 93, 98-99 (2005) (citations omitted).
Thus, given defendants’ belief that narcotic transactions were being
conducted in plaintiffs’ apartment, the mere facts that plaintiffs were
handcuffed and, at times, held at gunpoint, do not alone supply a basis for
a claim of excessive force. See Rincon v. City of New York, No. 03 Civ.

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8276, 2005 WL 646080, at *5-6 (S.D.N.Y. Mar. 21, 2005) (dismissing claim
for excessive force during search warrant execution and holding that
defendant’s handcuffing and use of guns during the search was reasonable
given information that narcotics transactions were being conducted in
plaintiff’s apartment and “the knowledge that guns are the tools of the drug
trade”). Moreover, plaintiffs’ own testimony belies their assertion that
defendants used excessive force during the search of their residence.
(See Menillo Aff., Ex. O, Aaron Dep. at 23, 24, 28, 34, 53, Dkt. No. 36:1;
Menillo Aff., Ex. P, McKim Dep. at 12-13, 16, 18, 32, Dkt. No. 36:2.)
Plaintiff Aaron testified in deposition, for example, that he was not hit or
physically harmed in any way while being handcuffed or at any other point
during the search, and that, “aside from breaking [the] door down,” he did
not feel that any of the officer’s conduct was inappropriate in any way.
(See Menillo Aff., Ex. O, Aaron Dep. at 23, 24, 28, 34, 53, Dkt. No. 36:1.)
Plaintiff McKim testified similarly, describing one police officer as “polite,”
and stating that she was not hit or otherwise physically harmed when
handcuffed, and that none of the officers touched or otherwise treated her
inappropriately. (See Menillo Aff., Ex. P, McKim Dep. at 12-13, 16, 18, 32,
Dkt. No. 36:2.) Accordingly, plaintiffs’ state and federal claims of excessive

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force are dismissed.
E.

Common Law Trespass
In their complaint, plaintiffs assert a claim for “common law trespass,”

but make no further mention of that claim in their submissions.
In asserting this claim, plaintiffs appear to be challenging defendants’ entry
into their premises on the basis that the warrant authorizing that entry was
deficient. However, because the court has already rejected the
predicate for this contention—that the search warrant did not legitimately
authorize entry—the claim is dismissed.
F.

Cross-Motion to Amend
Finally, given the dismissal of plaintiffs’ claims, plaintiffs’ cross-motion

to amend their complaint to identify the “Doe” defendants is denied as
moot.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that defendants’ motions for summary judgment (Dkt.
Nos. 31, 33) are GRANTED and plaintiffs’ complaint is DISMISSED; and it
is further
ORDERED that plaintiffs’ cross-motion to amend (Dkt. No. 39) is
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DENIED as moot; and it is further
ORDERED that the Clerk close this case and provide a copy of this
Memorandum-Decision and Order to the parties.
IT IS SO ORDERED.
June 28, 2011
Albany, New York

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