Kerr v. Snyder et al

Filing 53

MEMORANDUM-DECISION AND ORDER granting 41 Motion for Summary Judgment; granting 42 Motion for Summary Judgment: The Court hereby ORDERS that Defendants' motions for summary judgment (Dkt. Nos. 41 and 42) are GRANTED; and the Court furthe r ORDERS that the Clerk of the Court shall enter judgment in Defendants' favor and close this case; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision and Order on all parties in accordance with the Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 7/17/15. (ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
DONALD KERR,
Plaintiff,
vs.

1:12-CV-1392
(MAD/CFH)

JOSEPH A. SNYDER, et al.,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

SUSSMAN, WATKINS LAW FIRM
55 Main Street, Suite 6
Post Office Box 1005
Goshen, New York 10924
Attorneys for Plaintiff

MICHAEL H. SUSSMAN, ESQ.

COOKER, NETTER LAW FIRM
85 Main Street
Post Office Box 3939
Kingston, New York 12402
Attorneys for Defendants
Snyder, Butler, and Lucchesi

ERIC M. KURTZ, ESQ.

OFFICE OF UNITED STATES
ATTORNEY - ALBANY
James T. Foley U.S. Courthouse
445 Broadway, Room 218
Albany, New York 12207-2924
Attorneys for Defendants
Morrison and Moriarty

KAREN FOLSTER LESPERANCE, ESQ.

Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
On September 11, 2012, Plaintiff Donald Kerr commenced this action pursuant to 42
U.S.C. §§ 1983 and 1988. See Dkt. No. 1. Plaintiff claims that Defendants Snyder, Lucchesi,

Butler, Morrison and Moriarty violated his constitutional right to be free from search, seizure and
detention without reasonable suspicion or arguable probable cause.1 Id. at 2.
Currently before the Court are Defendants' motions for summary judgment, which
Plaintiff opposes. Dkt. Nos. 41, 42.
II. BACKGROUND
A.

Factual Background
In October 2011, Defendant Morrison, a United States Postal Inspector, identified a parcel

with "a number of characteristics which raised a reasonable suspicion that the package contained
narcotics." Dkt. No. 42-2 at 1. Defendant Morrison arranged a controlled delivery of the package
with the assistance of the New Paltz Police Department. Id. The package was accepted by an
individual at the location it was addressed to, and the individual "signed for and took possession
of the package, [after which] he was detained by members of the New Paltz Police department."
Id. at 2. Police officers asked for his consent to search the package, which he refused. See id. At
this point, the New Paltz K-9 unit was called and the canine alerted to the presence of narcotics in
the package. See id. Thereafter, the police obtained a search warrant for the package, which was
then opened at the New Paltz police department, and found to contain eight bags of a leafy green
substance which tested positive for marijuana. See id. "The individual who accepted the package
was arrested and later pled guilty to possession of a controlled substance." Id.
Subsequent to this event, Defendant Morrison started an investigation into the area of
California from where the package was sent, "an area . . . considered[ed] to be a 'source city' for
narcotics." Id. A number of suspicious packages sent from this area to New Paltz all shared a

On March 7, 2013, Plaintiff filed an amended complaint identifying Defendants
Morrison and Moriarty, both of whom had been listed as John Doe defendants in the original
complaint. See Dkt. No. 12.
1

2

number of similar characteristics, including: (1) they were all sent by express mail, (2) the
packages were heavy, (3) all the packages cost over thirty five dollars in postage, with a
maximum known amount of one hundred and thirty five dollars, (4) some of the packages had
sequential label numbers, "which can indicate that the labels were likely taken in a stack from a
single post office . . ., but they were mailed from different post offices[,]" and (5) "[i]n most
instances the sender and the recipient had the same last name." Id. at 3. Defendant Morrison
"recognized these characteristics [as] commonly seen in packages containing narcotics." Id.
Defendant Morrison put in place a "parcel watch" on several New Paltz addresses that had
received more than one package with these suspicious characteristics. Id.
183 Main Street, New Paltz, New York, was one of the addresses that had been placed on
parcel watch because "Defendant Morrison's investigation revealed [that] two prior suspicious
packages . . . had been delivered to that address." Id.2 At some point after the implementation of
the parcel watch, the New Paltz Postmaster contacted Defendant Morrison about a package with
characteristics that indicated it contained narcotics that was addressed to 183 Main Street. Id. at
4. Although there is a dispute regarding the exact dates of these events, it is known that
Defendant Morrison received a call from the New Paltz Postmaster, following which he contacted
Defendant Lucchesi about coordinating a controlled delivery of the package. See id.

Although Plaintiff denies that Defendant Morrison's investigation revealed two prior
suspicious packages, it is not clear how Plaintiff's clarification changes Defendants' narrative.
Dkt. No. 25 at 2. Plaintiff claims that Defendant "Morrison had not seen any prior suspicious
parcels addressed to this location[,]" seeming to place emphasis on the visual aspect of "seeing"
the packages. Id. (Dkt. No. 42-17 at 16). However, all the information needed to identify
suspicious packages is available in electronic form in the Post Office internal database. Dkt. No.
42-17 at 25 (according to Defendant Morrison's deposition, he was able to use tracking numbers
to look at the mailing label of the relevant packages, without actually "seeing" any of the
packages). Therefore, whether Defendant Morrison physically saw the packages is not relevant to
the Court's analysis.
2

3

Sometime after Defendant Morrison contacted Defendant Lucchesi, Defendant Lucchesi
"drove by 183 Main Street a few times, and ascertained that there were two business offices on
the first floor – one occupied by Mr. Kerr and the other by a Laurie DellaVilla – and an apartment
upstairs." Id. at 5. On November 4, 2011, Defendant Morrison called Defendant Moriarty, a
colleague postal inspector, to ask "for his assistance in making a controlled delivery, which
[Defendant Moriarty] agreed to provide." Id. On the same morning, Defendant Morrison
traveled to the New Paltz Post Office where he retrieved the package, and then traveled to the
New Paltz police department,"where he met with Detective Lucchesi and Sergeant Butler, and
waited for [Defendant] Moriarty to arrive." Id. The package fit the suspicious characteristics that
Defendant Morrison had previously observed in narcotics packages, including that it was sent via
express mail with a postage cost of one hundred twenty-seven dollars and sixty cents, the label
number was in sequential order with the previous package delivered to 183 Main Street, the
sender and recipient had the same last name, and the package was excessively taped around the
edges, something that "[i]n [Defendant] Morrison's experience . . . was commonly done with
packages containing marijuana in order to mask the odor." Id. at 5. Defendants Morrison and
Lucchesi conducted searches of law enforcement databases, and based on these searches
determined that the return address on the package did not exist, nor was anyone with the sender's
name "in or near Weaverville, California[,]" the city listed in the return address on the package.
Id. at 6.3 Additionally, Defendant Lucchesi could find no record of Shaun Webber, the package's

Plaintiff claims that Defendant Morrison "did . . . not conclusively determine" that the
sender's address did not exist, but the deposition that he cites to does not support his argument.
Dkt. No. 45 at 4; see Dkt. No. 42-17 at 34-36. The portion of the deposition Plaintiff cites
discussed searches run on 183 Main Street, not a search run on the sender's return address. In any
event, it is not disputed that Defendant Morrison could not verify that the return address on the
package existed.
3

4

addressee, in New Paltz law enforcement databases. Dkt. No. 42-2 at 7. Based on the above
facts, Defendant "Morrison was highly suspicious that the package contained narcotics, and
determined to proceed with the controlled delivery." Id.
Defendant "Morrison changed into a postal carrier uniform and retrieved a postal 'long life
vehicle' (a standard mail delivery truck . . . ) from the New Paltz Post Office." Id. "He then
placed the package in the front of the postal vehicle and waited to be notified that [the rest of the
Defendants were] in position at 183 Main Street, and then proceeded to that address." Id. at 8.
Defendant Moriarty waited in front of 183 Main Street, and Defendants Snyder, Lucchesi and
Butler were all parked out of eyesight of the controlled delivery. Id.; Dkt. No. 41-1 at 3.
Defendant Morrison, who had "an open cell phone call with [Defendant] Snyder so that he and
[Defendant] Lucchesi could hear what was going on[,]" pulled into the parking lot at the same
time as a red Saab that contained Plaintiff. Dkt. No. 42-2 at 8. The details of what occurred at
this point are disputed, but all parties agree that Plaintiff asked Defendant Morrison if there was
"anything for Kerr[,]" and Plaintiff subsequently signed for and accepted possession of the
package, stating that he believed that the package identified the recipient as "one of the students
who lives upstairs." Dkt. No. 45 at 7; Dkt. No. 42-2 at 9. Thereafter, Plaintiff walked toward the
building, where Plaintiff contends that he intended to place the box at the entrance to the upstairs
apartment, which is separate from the entrance to Plaintiff's portion of the building.
At this point, Defendant Moriarty "saw [Plaintiff] take the box from [Defendant]
Morrison, and alerted the nearby [Defendants] via handheld radio." Dkt. No. 42-2 at 9. As
Plaintiff "approached the front porch of the building at 183 Main Street, [Defendant] Moriarty
confronted him, stating 'Federal Agent, put the box down.'" Id. In response, Plaintiff stated "it's
not my box." Id. Defendant Moriarty repeated his demand, and Plaintiff complied, putting down
5

both the package and a laptop bag that he was carrying. Id. at 10. At that point, Defendant
Moriarty handcuffed Plaintiff.4 Id. Subsequently, Defendants Snyder, Lucchesi, and Butler
arrived and took custody of Plaintiff.5 After handcuffing Plaintiff and relinquishing custody,
Defendant Moriarty was no longer involved in the investigation. Dkt. No. 42-2 at 11.
Defendants' statements of fact diverge at this point, as Defendants Snyder, Lucchesi, and
Butler (the "New Paltz Defendants") claim that they did not know that Plaintiff was "the subject
of the investigation, nor were they aware that [Plaintiff] would eventually sign for the package."
Dkt. No. 41-1 at 5. In contrast, Defendants Morrison and Moriarty (the "Federal Defendants")
claim that both sets of Defendants had discussed Plaintiff before initiating the controlled delivery,
including that Plaintiff was "googled" prior to the delivery, that a photo of Plaintiff was shown on
the computer at the New Paltz police station, and the Federal Defendants "learned from one of the
New Paltz police officers that one of the individuals who had an office at 183 Main Street,
[Plaintiff], had prior arrests on drug offenses." Dkt. No. 42-2 at 6. Plaintiff denies the Federal
Defendants' version of events insofar as the Federal Defendants claim Plaintiff was specifically
discussed prior to the controlled delivery. Dkt. No. 45 at 5.
After the New Paltz Defendants took custody of Plaintiff, Plaintiff "asked if they could
move inside his office, so that he was not handcuffed on his front porch on Main Street, and
[Defendant] Butler complied." Dkt. No. 42-2 at 10. Once Defendant "Butler brought [Plaintiff]

Plaintiff contends that Defendant Moriarty's use of handcuffs was to arrest Plaintiff "if
the package contained marijuana[,]" while Defendants contend that the use of handcuffs were "for
[Defendant Moriarty's] own safety concerns, because at the time he was the only law enforcement
officer present." Dkt. No. 45 at 7; Dkt. No. 42-2 at 10.
4

Plaintiff denies this statement, but his denial is limited to the time frame in which the
officers arrived. Plaintiff contends that Defendants Snyder, Lucchesi, and Butler "arrived almost
instantaneously[,]" while Defendants claim that the officers arrived "within moments." Dkt. No.
45 at 7; Dkt. No. 42-2 at 10.
5

6

inside his office, the New Paltz K-9 unit arrived and examined the package, which was still on the
front porch[,]" and "the K-9 alerted to the presence of narcotics in the package." Id. at 11. When
asked to consent to a search of the package, Plaintiff stated that the package did not belong to
him, and therefore he could not consent to a search. Id. at 12. However, Defendants obtained and
executed a search warrant and found that the package contained "eight clear vacuum sealed bags
containing a leafy green substance, which field tested positive for marijuana." Id. Based on the
search of the package, Plaintiff was "formally charged with criminal possession of marijuana,
second degree." Id. Pursuant to the search warrant, Plaintiff's laptop was confiscated because it
"may have contain[ed] relevant evidence concerning the possession of marijuana." Dkt. No. 41-1
at 6. The laptop was given to the New York State Police Crime Lab for forensic analysis. Id.
Plaintiff's state court criminal case went before a grand jury, which issued a no true bill on
April 12, 2012. Dkt. No. 44 at 28. Plaintiff eventually retrieved his computer when he went to
the New Paltz police department where he "demanded his computer and received it seven weeks
after the no true bill was entered." Id. at 29.
B.

The Federal Defendants' summary judgment motion
The Federal Defendants claim that Defendant Moriarty instituted an investigative

detention when he initially handcuffed Plaintiff, and that an investigative detention is warranted if
an officer has a reasonable suspicion that criminal activity occurred. Dkt. No. 42-1 at 17.
According to the Federal Defendants, Defendant Moriarty's intention was "only to detain
[Plaintiff] long enough for the K-9 unit to examine the box for the possible presence of narcotics."
Id. at 19. Further, Defendant Moriarty's use of handcuffs was for safety, because Defendant
Moriarty was "the only officer present at that time." Id. Additionally, the Federal Defendants
argue that based on "the brief and non-intrusive nature of the overall encounter between
7

[Defendant] Moriarty and [Plaintiff], the mere fact that [Plaintiff] was placed in handcuffs,
standing alone, is insufficient to render the detention a de facto arrest." Id. at 20.
The Federal Defendants argue that summary judgment is appropriate because Defendant
Moriarty's initial detention was conducted according to reasonable suspicion, and there was
probable cause to arrest once the canine alerted on the package, indicating the presence of
narcotics. See id. at 20, 22. They further claim that even if the Court were to find that Plaintiff's
detention converted to an arrest before the package was actually opened, probable cause to arrest
existed at all times after the canine alerted on the package. Id. at 22.
The Federal Defendants also allege that they had no personal involvement in the incident
past the initial detention and, therefore, they may not be held liable for Plaintiff's detention in his
office, for any alleged unlawful detainment that occurred while Plaintiff was handcuffed to a
bench at the New Paltz police station prior to being formally charged, or for any unlawful seizure
of property that occurred due to the seizure of Plaintiff's laptop. See id. at 24. However, if the
Court finds that there was personal involvement, the Federal Defendants contend that seizure of
the laptop was pursuant to a valid search warrant, and "[w]here, as here, property is seized
pursuant to a search warrant issued upon probable cause, there is no violation of the Fourth
Amendment." Id. at 25.
Alternatively, if the Court finds that the Federal Defendants did violate Plaintiff's
constitutional rights, they contend that both Defendant Morrison and Defendant Moriarty are
entitled to qualified immunity. See id. at 27. The Federal Defendants argue that, even if the
Court finds that they are not entitled to summary judgment as to Plaintiff's alleged unlawful
detention and arrest, they are entitled to qualified immunity because they had reasonable
suspicion to believe that Plaintiff was engaged in criminal activity both before and after the K-9
8

alerted to the presence of narcotics. See id. at 27-28. As to the alleged unlawful seizure of
Plaintiff's laptop, the Federal Defendants assert 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.'" Id. at 28
(quoting Martinez v. City of Schenectady, 115 F.3d 111, 115 (2d Cir. 1997)) (other citations
omitted).
C.

The New Paltz Defendants' summary judgment motion
First, the New Paltz Defendants argue that, even if there was a false arrest, since they were

not present at the time of the alleged false arrest, liability will only extend if they "had reason to
know" a false arrest was likely to occur. Dkt. No. 41-9 at 4. Additionally, the New Paltz
Defendants contend that probable cause existed and, therefore, there is no cause of action for false
arrest. They argue that because Plaintiff signed for the package even though he knew it was not
addressed to him, and because Defendants knew the addressee had no connection to 183 Main
Street, "it was certainly reasonable for the defendants to believe that the plaintiff was expecting
the package." Id. at 6. In the alternative, the New Paltz Defendants argue that they are entitled to
qualified immunity, because "at the very least, 'arguable probable cause' for plaintiff's arrest
existed, and therefore, any claim for false arrest is barred." Id. at 9.
Additionally, the New Paltz Defendants contend that they did not violate Plaintiff's
constitutional rights by seizing his laptop because "the evidence is clear that the laptop was seized
pursuant to [a] valid search warrant, as it may [have] contain[ed] relevant evidence for the
prosecution of the pending criminal action." Id. at 11. Further, the New Paltz Defendants assert
that they were entitled to retain the laptop until the disposition of the pending criminal case. See
id. They contend that, upon disposition of the criminal case, Plaintiff sent an email to Defendant
9

Snyder requesting the return of his laptop, which was returned to Plaintiff approximately one (1)
week after the email was sent. See id.
D.

Plaintiff's opposition
In his opposition, Plaintiff argues that "a reasonable jury could here conclude that the

defendants all planned the arrest strategy together and all decided in advance that anyone who
accepted the package, whatever the circumstances, would be detained." Dkt. No. 46 at 8. Based
on this group action, Plaintiff alleges that "a jury could believe . . . [that] none of the members of
law enforcement who participated in the arrest discussed in advance anything about Kerr or his
history" and, therefore, all Defendants may be held liable for Plaintiff's false arrest claim. Id. at
10.
In further support of his false arrest claim, Plaintiff argues that no probable cause existed
to arrest him because Defendants "did not allow probable cause to develop" when they arrested
Plaintiff before his intentions regarding the package were clear. Id. at 11-12. According to
Plaintiff, "[i]t was not clear at the time of [Plaintiff's] arrest whether he intended, as he stated, to
accept the package for [the addressee] and deliver it to the area where he believed [the addressee]
would retrieve it or [whether he would] . . . keep it for himself." Id. at 12. Therefore, Plaintiff
claims that Defendants "had no basis to associate plaintiff with the package other than his having
tak[en] control of it and he did that expressly indicating that he was doing so for another." Id. at
13.
Plaintiff also opposes summary judgment based on the unreasonable seizure and retention
of his laptop, because he "sought the return of his laptop [through counsel]. But, the New Paltz
defendants were unresponsive and retained hi[s] computer without any basis for another seven

10

weeks." Id. at 15. Further, Plaintiff alleges that Defendants' seizure of the laptop had no legal
basis because Defendants had no probable cause for the arrest. Id.
Plaintiff argues that qualified immunity is inappropriate in this case, but seems to have
inserted language from a brief regarding qualified immunity in an equal protection context. Id. at
21-23. In the limited arguments relevant to this case, Plaintiff contends that the right to be free
from arrest absent probable cause was clearly established as of November 4, 2011. See id. at 23.
Additionally, Plaintiff contends that "the dog 'alert' adds nothing to the case because it does not
link [Plaintiff] in any way to this package for which he was arrested. Simply stated, on the facts
known to them, there was no 'substantial chance' that Kerr was engaged in criminal behavior
when they arrested him." Id. at 23-24 (citing United States v. Bakhiari, 913 F.2d 1053, 1062 (2d
Cir. 1990)).
III. DISCUSSION
A.

Standard of review
1. Summary judgment
A court may grant a motion for summary judgment only if it determines that there is no

genuine issue of material fact to be tried and that the facts as to which there is no such issue
warrant judgment for the movant as a matter of law. See Chambers v. TRM Copy Ctrs. Corp., 43
F.3d 29, 36 (2d Cir. 1994) (citations omitted). When analyzing a summary judgment motion, the
court "cannot try issues of fact; it can only determine whether there are issues to be tried." Id. at
36-37 (quotation and other citation omitted). Moreover, it is well-settled that a party opposing a
motion for summary judgment may not simply rely on the assertions in its pleading. See Celotex
Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quoting Fed. R. Civ. P. 56(c), (e)).

11

In assessing the record to determine whether any such issues of material fact exist, the
court is required to resolve all ambiguities and draw all reasonable inferences in favor of the
nonmoving party. See Chambers, 43 F.3d at 36 (citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986)) (other citations omitted). Where the non-movant either does not respond to the
motion or fails to dispute the movant's statement of material facts, the court may not rely solely
on the moving party's Rule 56.1 statement; rather, the court must be satisfied that the citations to
evidence in the record support the movant's assertions. See Giannullo v. City of N.Y., 322 F.3d
139, 143 n.5 (2d Cir. 2003) (holding that not verifying in the record the assertions in the motion
for summary judgment "would derogate the truth-finding functions of the judicial process by
substituting convenience for facts").
2. 42 U.S.C. § 1983
Section 1983 imposes liability for "conduct which 'subjects, or causes to be subjected' the
complainant to a deprivation of a right secured by the Constitution and laws." Rizzo v. Goode,
423 U.S. 362, 370-71 (1976) (quoting 42 U.S.C. § 1983). Not only must the conduct deprive the
plaintiff of rights and privileges secured by the Constitution, but the actions or omissions
attributable to each defendant must be the proximate cause of the injuries and consequent
damages that the plaintiff sustained. See Brown v. Coughlin, 758 F. Supp. 876, 881 (S.D.N.Y.
1991) (citing Martinez v. California, 444 U.S. 277, 100 S. Ct. 553, 62 L. Ed. 2d 481, reh. denied,
445 U.S. 920, 100 S. Ct. 1285, 63 L. Ed. 2d 606 (1980)). As such, for a plaintiff to recover in a
section 1983 action, he must establish a causal connection between the acts or omissions of each
defendant and any injury or damages he suffered as a result of those acts or omissions. See id.
(citing Givhan v. Western Line Consolidated School District, 439 U.S. 410, 99 S. Ct. 693, 58 L.
Ed. 2d 619 (1979)) (other citation omitted).
12

However, "[w]here a plaintiff brings a Section 1983 claim against federal defendants in
error, the proper course of action is to construe the complaint as stating a cause of action under
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), which is
the federal analog to Section 1983 claims." Bordeaux v. Lynch, 958 F. Supp. 77, 84 (N.D.N.Y.
1997).
3. Levels of government and private citizen interaction
"[T]here are three levels of interaction between agents of the government and private
citizens. . . . Consensual encounters require no justification so 'long as the police do not convey a
message that compliance with their requests is required.' . . . Investigative detentions, the second
category, require 'reasonable suspicion' to believe that criminal activity has occurred or is about to
occur." United States v. Tehrani, 49 F.3d 54, 58 (2d Cir. 1995) (quotations and other citations
omitted). "Arrests, requiring a showing of probable cause, comprise the third type of encounter
between citizens and government agents." Id.
Additionally,
"[a] permissible investigative stop may become an unlawful arrest if
the means of detention are 'more intrusive than necessary.'" . . . "In
determining whether an investigatory stop is sufficiently intrusive
to ripen into a de facto arrest, the Second Circuit considers the
'amount of force used by the police, the need for such force, and the
extent to which an individual's freedom of movement was
restrained, and in particular such factors as the number of agents
involved, whether the target of the stop was suspected of being
armed, the duration of the stop, and the physical treatment of the
suspect, including whether or not handcuffs were used.'"
United States v. Wiggan, 530 Fed. Appx. 51, 55 (2d Cir. 2013) (internal quotations and citations
omitted). "Whether a seizure is an arrest or merely an investigatory detention, depends on the
reasonableness of the level of intrusion under the totality of the circumstances." Posr v. Doherty,
944 F.2d 91, 98 (2d Cir. 1991) (citations omitted). Additionally, to determine whether the length
13

of an investigatory detention is reasonable, courts will consider if "the police diligently pursued a
means of investigation that was likely to confirm or dispel their suspicions quickly, during which
time it was necessary to detain the defendant." U.S. v. Sharpe, 470 U.S. 675, 686 (1985)
(citations omitted).
B.

False Arrest
"Claims for false arrest, whether brought under § 1983, pursuant to Bivens, or under state

law, are analyzed pursuant to the same standards as the applicable state law's false arrest tort."
Nzegwu v. Friedman, ___ Fed. Appx. ___, 2015 WL 1449647, *1 (2d Cir. 2015) (citing Jocks v.
Tavernier, 316 F.3d 128, 134 (2d Cir. 2003)). Under New York law, "to prevail on a claim of
false arrest a plaintiff must show that (1) the defendant intended to confine him, (2) the plaintiff
was conscious of the confinement, (3) the plaintiff did not consent to the confinement and (4) the
confinement was not otherwise privileged." Jocks, 316 F.3d at 134-35 (internal quotation marks
omitted). If an officer has probable cause to arrest, the confinement is privileged. See id. at 135.
According to the Second Circuit,
[t]he Supreme Court has repeatedly stated that the probable-cause
standard is "a 'practical, nontechnical conception' that deals with
'the factual and practical considerations of everyday life on which
reasonable and prudent men, not legal technicians, act.'" Maryland
v. Pringle, 540 U.S. 366, 370 (2003) (quoting Illinois v. Gates, 462
U.S. 213, 231 (1983). Because the standard is fluid and contextual,
a court must examine the totality of the circumstances of a given
arrest. Id. at 371; Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir.
2006). These circumstances must be considered from the
perspective of a reasonable police officer in light of his training and
experience. United States v. Moreno, 897 F.2d 26, 31 (2d Cir.
1990), abrogated on other grounds by Horton v. California, 496
U.S. 128, 110 (1990).
United States v. Delossantos, 536 F.3d 155, 159 (2d Cir. 2008). However, "no probable cause
exists to arrest where a suspect's actions are too ambiguous to raise more than a generalized
14

suspicion of involvement in criminal activity." United States v. Valentine, 539 F.3d 88, 94 (2d
Cir. 2008).
"For an investigatory detention to be justified at its inception, the officer must be able to
'point to specific and articulable facts which, taken together with rational inferences from those
facts, reasonably warrants that intrusion.'" United States v. Restrepo, 890 F. Supp. 180, 193
(E.D.N.Y. 1995) (quoting Terry v. Ohio, 392 U.S. 1, 21 (1968)). Defendant Morrison relied on
his past experience when he placed a parcel watch on 183 Main Street, based on a number of
characteristics that he previously found in packages that contained narcotics. Dkt. No. 42-2 at 3.
Further, as set out in the statements of fact, Defendant Morrison had participated in at least one
almost identical operation to the one currently before the Court, which ended in the successful
prosecution of the individual who accepted the package. Id. at 1. The only difference between
that scenario and the one currently before the Court is that Plaintiff claims that he did not accept
the package for himself, but said that he thought the package was for someone else who lived at
183 Main Street. Id. at 9. However, Plaintiff still signed for and accepted possession of the
package, regardless of what he intended to do with it once it was in his possession. Accordingly,
the Court finds that Defendant Moriarty's initial apprehension of Plaintiff was a valid
investigatory detention, because Plaintiff's acceptance of the package created a reasonable
suspicion that he was involved in criminal activity.
Next, the Court must decide if Defendant Moriarty's investigatory detention became an
unlawful arrest before probable cause existed to arrest Plaintiff. "The [investigatory] detention
must be 'temporary and last no longer than is necessary to effectuate the purpose of the stop.'" Id.
(quoting Florida v. Royer, 460 U.S. 491, 500 (1983)). According to the undisputed facts,
Defendant Morrison was the only individual present with Plaintiff at the time of the initial
15

detention, and the New Paltz Defendants almost immediately took custody of Plaintiff, who upon
his request, was moved to his office. See Dkt. No. 42-2 at 10. The period of time between
Plaintiff's initial detention and the canine alert on the package was only nine minutes. Id.
Accordingly, Defendants' detention of Plaintiff was no longer than required to have the police
canine inspect the package. Further, Defendant Moriarty did not use a weapon, search Plaintiff,
or do anything more than handcuff him. See id. While "[h]andcuffs are generally recognized as a
hallmark of a formal arrest[,]" United States v. Newton, 369 F.3d 659, 676 (2d Cir. 2004) (citation
omitted), "[i]f there is a basis to detain a suspect, the detention does not become an arrest simply
because the suspect[ is] handcuffed." Oliveira v. Mayer, 23 F.3d 642, 651 (2d Cir. 1994)
(Mahoney, J., dissenting) (citing Dempsey v. Town of Brighton, 749 F. Supp. 1215, 1223
(W.D.N.Y. 1990)).
Further, all other factors that the Court considers to determine whether an investigatory
detention became an unlawful arrest weigh against a finding that Plaintiff was under arrest prior
to the inspection by the K-9 unit. "'In determining whether an investigatory stop is sufficiently
intrusive to ripen into a de facto arrest, the Second Circuit considers the amount of force used by
the police, the need for such force, and the extent to which an individual's freedom of movement
was restrained, and in particular such factors as the number of agents involved, whether the target
of the stop was suspected of being armed, the duration of the stop, and the physical treatment of
the suspect, including whether or not handcuffs were used.'" Wiggan, 530 Fed. Appx. at 55
(quoting United States v. Vargas, 369 F.3d 98, 101 (2d Cir. 2004)) (other quotation omitted).
In the present matter, no force was used and Defendant Moriarty simply ordered Plaintiff
to put the box down. See Dkt. No. 42-2 at 9-10. While Plaintiff's freedom of movement was
restrained, the officers brought in a police canine in under ten minutes to conduct a sniff test "to
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confirm or dispel their suspicions" that the package Plaintiff had taken possession of contained
narcotics. See United States v. Sharpe, 470 U.S. at 686. Further, Defendant Moriarty was the
only officer present on the scene when Plaintiff was first handcuffed. See Dkt. No. 42-2 at 11.
Although the New Paltz Defendants subsequently took custody of Plaintiff, Defendant Butler was
left alone with Plaintiff while the other officials conducted their investigation. See Dkt. No. 42-2
at 11. Additionally, Plaintiff has not alleged that he was mistreated while in any Defendants'
custody; in fact, Defendant Butler allowed Plaintiff to move inside his office so that Plaintiff
would not be seen handcuffed on his front porch on Main Street. See Dkt. No. 42-2 at 10; Dkt.
No. 45 at 8; Dkt. No. 41-3 at 74-75. Further, during the time that Plaintiff was in his office, he
requested an opportunity to take some medication, which was granted. See Dkt. No. 41-1 at 5.
As no factor except the handcuffs signifies that Plaintiff was under arrest, Defendants'
investigatory detention of Plaintiff was not more intrusive than necessary and, therefore, did not
become a de facto arrest. See Wiggan, 530 Fed. Appx. at 55; see also United States v. Shelby,
954 F.2d 728, 728 (9th Cir. 1992) (holding that the fact that the defendant was handcuffed and
moved into an office at the airport while awaiting a canine to inspect the package did not turn the
investigatory detention into an arrest) (citations omitted); Florida v. Royer, 460 U.S. 491, 506
n.10 (1983) (plurality opinion) ("[T]he officers, with founded suspicion, could have detained
Royer for the brief period during which Florida authorities at busy airports seem able to carry out
the dog-sniffing procedure").
Finally, the Court must decide if Defendants had probable cause to arrest Plaintiff. The
collective knowledge of Defendants at the time of Plaintiff's initial detention on November 4,
2011 was as follows: (1) this was the third suspicious package sent from a source city in Northern
California to 183 Main Street in several weeks, each of the three bearing several characteristics
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rendering them suspicious for marijuana; (2) the package was large and heavy, sent by Express
Mail at a considerable expense, and was excessively taped along all edges, all common
characteristics of a package containing marijuana; (3) while the package bore a sequential express
mail label number to a package that had been delivered to 183 Main Street a few weeks prior, the
two packages were sent from different cities and from different senders, and were addressed to
different names at the same address; (4) the sender address was a fictitious address; (5) the
addressee's name had no known association with 183 Main Street, and was not listed in the
registry of students at SUNY New Paltz; (6) Plaintiff approached Defendant Morrison, who was
undercover as a postal delivery man, as soon as Defendant Morrison arrived at the address,
inquiring about a package; (7) Plaintiff stated to Defendant Morrison that he believed the
addressee is "one of the people who gets mail here;" and (8) Plaintiff signed for and accepted
possession of the package. Considering these facts, Defendants undoubtedly had reasonable
suspicion to detain Plaintiff until the K-9 unit could inspect the package. See United States v.
Scarborough, 128 F.3d 1373 (10th Cir. 1997) ("A combination of seemingly independent
innocent factors may create a reasonable suspicion justifying detention for a dog sniff if the
factors substantially reflect elements of a suspicious profile"); United States v. Golson, 743 F.3d
44 (3d Cir. 2014) (finding that the defendants had reasonable suspicion where the package was
mailed from a fictitious and non-deliverable return address, sent from Arizona to Pennsylvania,
and addressee not a person known to receive mail at the address listed); United States v. Huerta,
655 F.3d 806 (8th Cir. 2011) (finding reasonable suspicion in a case involving an Express Mail
package, handwritten label, sent from drug source state, name of sender unrelated to return
address, telephone number listed for sender disconnected day after package was mailed, number

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in return address was scratched out, mailing zip code different than zip code on return address,
destination address a hotel, and heavily taped).
In Rodriguez v. United States, ___ U.S. ___, 135 S. Ct. 1609 (2015), the Supreme Court
held that "a police stop exceeding the time needed to handle the matter for which the stop was
made violates the Constitution's shield against unreasonable seizures. A seizure justified only by
a police-observed traffic violation, therefore, 'become[s] unlawful if it is prolonged beyond the
time reasonably required to complete th[e] mission' of issuing a ticket for the violation." Id.
(citation omitted). Unlike Rodriguez, however, the initial approach and detention was based on
Defendants' reasonable suspicion regarding the contents of the package. As such, Defendants
were permitted to extend the duration of the detention to arrange for a canine unit to inspect the
package. See United States v. Ruiz, ___ F.3d ___, 2015 WL 2151843, *6-*7 (7th Cir. 2015)
(citation omitted).
At this point, Defendants contacted the K-9 unit, which arrived approximately nine (9)
minutes after the controlled delivery. Once the police canine alerted to the presence of narcotics
in the package, Defendants had probable cause to arrest Plaintiff based on the totality of the
circumstances. See Delossantos, 536 F.3d at 159 ("[C]ircumstances [that give rise to probable
cause] must be considered from the perspective of a reasonable police officer in light of his
training and experience") (citation omitted). Defendants carried out at least one almost identical
operation to the controlled delivery currently at issue, that ended in the successful prosecution of
the individual who accepted possession of the package. Dkt. No. 42-2 at 1-2. Similarly, Plaintiff
accepted possession of the package, and the drug detection dog alerted on the package. See
Royer, 460 U.S. at 505-06 (noting that a positive alert from a dog trained to detect the presence of
controlled substances would have provided probable cause to arrest the defendant). Further,
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Defendants obtained a search warrant from a state court judge after the canine alerted on the
package, indicating that the alert created probable cause for the arrest under state law. See Dkt.
No. 42-15 at 1. Based on the foregoing, the Court finds that, upon the positive canine alert to the
presence of narcotics in the package, Defendants had probable cause to arrest Plaintiff.
As the arrest was based on probable cause, the Court grants summary judgment to
Defendants on Plaintiff's false arrest claim. See Weyant, 101 F.3d at 852.
C.

Seizure of Plaintiff's laptop
"The Fourth Amendment states unambiguously that 'no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized." Groh v. Ramirez, 540 U.S. 551, 557 (2004)
(emphasis in original). Defendants obtained a search warrant that allowed them to search
Plaintiff's office for records related to marijuana trafficking or transactions, and any money or
items related to marijuana trafficking or transactions. Dkt. No. 42-15 at 1. Further, the affidavit
in support of the search warrant specifically requested that the officers be permitted to search and
seize any "computer, computer programs, [and] computer data," because they may contain
records of any drug transactions. See id. at 4. Plaintiff's laptop reasonably may have contained
records of any illegal activity regarding marijuana trafficking or transactions and, therefore,
Defendants were within the bounds of the search warrant when they seized the laptop. Further,
Plaintiff does not argue that the search warrant did not allow for seizure of the laptop, but that
Defendants lacked the initial probable cause required for the search warrant and arrest. Dkt. No.
46 at 15. As the Court has already found that probable caused existed for Plaintiff's arrest, this
argument is without merit.

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Plaintiff's remaining claim is that Defendants "retention [of the laptop] for at least seven
weeks following issuance of the no true bill . . . was without any arguable justification." Id.
However, as the New Paltz Defendants correctly contend, although Plaintiff claims that his
counsel contacted the New Paltz police department about the return of his laptop soon after the
grand jury issued a no-true bill, "there is no documentary evidence within the record to support
[this] claim." Dkt. No. 51 at 8. Rather, the first documented request was an email Plaintiff wrote
to Defendant Snyder on May 25, 2012 seeking the return of his laptop. See Dkt. No. 41-3 at 205.
Six days later, Plaintiff went to the New Paltz police department and was given his laptop. See
Dkt. No. 41-3 at 204. Accordingly, there is no indication that Defendants withheld Plaintiff's
laptop.
Additionally, the Court notes that, pursuant to New York's Criminal Procedure Law,
property seized pursuant to a search warrant remains in the control of the issuing judge. See N.Y.
C.P.L. § 690.55(1). Further, "[a] CPLR article 78 proceeding will properly lie to require the
return of property, other than contraband, seized pursuant to a search warrant and held for an
unreasonable length of time without the commencement of a criminal action[.]" Moss v. Spitzer,
19 A.D.3d 599, 600 (2d Dep't 2005) (citation omitted). Additionally, courts in New York have
held that a person in Plaintiff's situation can bring a replevin action seeking the return of property
seized pursuant to a warrant. See Boyle v. Kelley, 42 N.Y.2d 88, 91 (1977) (citations omitted).
Considering that Plaintiff had legal remedies to seek the immediate return of his property and
because the property was returned within one week of the first documented demand, it cannot be
said that Defendants retained the laptop for an unreasonable amount of time after the conclusion
of the criminal proceedings. See id.

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Based on the foregoing, the Court grants Defendants' motions for summary judgment
regarding Plaintiff's claim that they withheld his laptop without probable cause upon the issuance
of a no-true bill by the grand jury.
D.

Qualified Immunity
In the alternative, the Court also finds that Defendants are entitled to qualified immunity.
Qualified immunity protects government officials from liability when "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) (citations omitted); see also
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (holding that qualified immunity is not merely
immunity from damages but also "immunity from suit"). "[T]he salient question [in determining
qualified immunity] is whether the state of the law . . . gave [the defendants] fair warning that
their alleged treatment of [the plaintiff] was unconstitutional." Hope v. Pelzer, 536 U.S. 730, 741
(2002). As qualified immunity is an affirmative defense, the burden of pleading it falls on the
defendants. See Gomez v. Toledo, 446 U.S. 635, 640 (1980) (citations omitted); see also Varrone
v. Bilotti, 123 F.3d 75, 78 (2d Cir. 1997) (holding that the "defendants bear the burden of showing
that the challenged act was objectively reasonable") (citation omitted).
The qualified immunity determination consists of two steps, which a court may consider
in either order. See Seri v. Bochicchio, 374 Fed. Appx. 114, 116 (2d Cir. 2010) (citation omitted).
The first step is to determine "whether the facts that a plaintiff has alleged . . . make out a
violation of a constitutional right." Pearson v. Callahan, 555 U.S. 223, 232 (2009) (citations
omitted). Second, the court must determine "whether the right at issue was 'clearly established' at
the time of defendant's alleged misconduct." Id. (citation omitted).

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A right is "clearly established" if "[t]he contours of the right . . . [are] sufficiently clear
that a reasonable official would understand that what he is doing violates that right." Anderson v.
Creighton, 483 U.S. 635, 640 (1987). "To determine whether a right is clearly established, we
look to: (1) whether the right was defined with reasonable specificity; (2) whether Supreme Court
or court of appeals case law supports the existence of the right in question; and (3) whether under
preexisting law a reasonable defendant would have understood that his or her acts were
unlawful." Scott v. Fischer, 616 F.3d 100, 105 (2d Cir. 2010) (citing Schecter v. Comptroller of
City of N.Y., 79 F.3d 265, 271 (2d Cir. 1996)). "As the qualified immunity defense has evolved, it
provides ample protection to all but the plainly incompetent or those who knowingly violate the
law." Malley v. Briggs, 475 U.S. 335, 341 (1986).
If there is no dispute as to any material fact, the issue of whether the official's conduct was
objectively reasonable is an issue of law to be decided by the court. See id. at 368 (citation
omitted). Any unresolved factual issues, however, must be resolved by the jury. See id. (quoting
Kerman, 374 F.3d at 109) (other citations omitted). Once the court has received the jury's
decision as to "what the facts were that the officer faced or perceived," the court must then "make
the ultimate legal determination of whether qualified immunity attaches on those facts."
Stephenson v. Doe, 332 F.3d 68, 81 (2d Cir. 2003) (quotation omitted); see also Lennon v. Miller,
66 F.3d 416, 421 (2d Cir. 1995) (quotation omitted).
It has been held that the probable cause standard for false arrest is less stringent on the
issue of qualified immunity as only "arguable probable cause" is necessary to support qualified
immunity. See Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004). "Arguable probable cause
exists 'if either (a) it was objectively reasonable for the officer to believe that probable cause
existed, or (b) officers of reasonable competence could disagree on whether the probable cause
23

test was met.'" Id. (quotation and other citations omitted). Thus, the analytically distinct test for
qualified immunity is more favorable to the officers than the one for probable cause; 'arguable
probable cause' will suffice to confer qualified immunity for the arrest." Id.
In regard to Plaintiff's first cause of action, "it is settled that a person has a clearly
established right not to be arrested or prosecuted without probable cause." Soares v. Connecticut,
8 F.3d 917, 920 (2d Cir. 1993). The Court finds, however, that even if Defendants did not have
probable cause to arrest Plaintiff, the undisputed facts clearly establish that Defendants had
arguable probable cause. It was objectively reasonable for Defendants to believe that Plaintiff
was the intended recipient of the package because the addressee was not associated with the
premises in any way and Plaintiff inquired about and then took custody of the suspicious package.
Further, Defendant Morrison, with the assistance of the New Paltz Police Department, had
previously conducted a controlled delivery involving a near identical package and set of
circumstances, which resulted in a narcotics related possession. Accordingly, based on the
circumstances of this case, the Court finds that Defendants had arguable probable cause and,
therefore, are entitled to qualified immunity as to Plaintiff's false arrest claim.
Plaintiff's second claim, the unreasonable seizure and withholding of Plaintiff's laptop, is
similarly subject to dismissal qualified immunity grounds. "[T]he 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). Additionally, as
discussed, the laptop was returned to Plaintiff approximately seven weeks after the grand jury
returned a no-true bill. Despite Plaintiff's conclusory assertions to the contrary, the only
documented request for the return of the computer occurred approximately seven days before it
24

was returned to Plaintiff. Further, Plaintiff had formal avenues he could have pursued to seek the
return of his property but failed to take advantage of them. Considering the undisputed facts, the
Court finds that reasonable officials in Defendants' position would not have believed that his or
her actions were unlawful.
Based on the foregoing, the Court finds that, in the alternative, Defendants are entitled to
qualified immunity for their actions; and, therefore, the Court grants Defendants' motion for
summary judgment.
IV. CONCLUSION
After carefully reviewing the entire record in this matter, the parties' submissions and the
applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Defendants' motions for summary judgment (Dkt. Nos. 41 and 42) are
GRANTED; and the Court further
ORDERS that the Clerk of the Court shall enter judgment in Defendants' favor and close
this case; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on all parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: July 17, 2015
Albany, New York

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