Reed et al v. Cushman et al
Filing
75
ORDER granting 64 Motion for Summary Judgment; granting 66 Motion for Summary Judgment; and dismissing the Plaintiffs' complaint in its entirety. (Clerk to close case.) (Clerk mailed copies of Decision and Order to Plaintiffs by first class mail.) Signed by Hon. Michael A. Telesca on 8/17/18. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
CHARLES REED, SR., and RICHARD REED,
No. 6:12-CV-6655-MAT-JWF
DECISION AND ORDER
Plaintiffs,
vs.
JAMES M. SHEPPARD, Chief of Police;
POWELL TEVOR, Inv. Roch City Police
Department; OFFICER MINERKA, RPD;
and “KNOWN AND UNKNOWN” LAW/POLICE
AGENTS, STATE POLICE,
Defendants.
I.
Introduction
This is an action instituted pursuant to 42 U.S.C. §§ 1981,
1983, and 1988, by pro se plaintiffs Charles Reed, Sr. (“Charles”)
and Richard Reed (“Richard”) (collectively, “Plaintiffs”). Charles
and Richard are the father and brother, respectively, of Charles
Quincy Reed, Jr. (“Quincy”). At the time of the events at issue,
Quincy was under parole supervision by the New York State Division
of Parole (“Parole Division”). Plaintiffs assert that Quincy’s
parole officer, Curt Cashman (“Cashman”),1 and various named and
unnamed law enforcement officers employed by the City of Rochester
Police Department (“the RPD Defendants”) and the New York State
Police, violated their Fourth Amendment rights when they conducted
1
There are discrepancies between the spelling of the names of some of the
defendants in the caption and the defendants’ actual names. The caption reflects
the names as set forth in Plaintiffs’ pleadings. Where the Court has been
provided with the correct spelling of individual defendants’ names, it has used
these in the Decision and Order.
a warrantless search of a location they believed to be Quincy’s
residence.
Cashman has filed a renewed motion for summary judgment (ECF
#64). The RPD Defendants also have filed a renewed motion for
summary judgment (ECF #66). Plaintiffs filed a reply in opposition
(ECF #69). The Court subsequently requested (ECF #71) additional
briefing on certain issues as well clarification of the layout of
the apartments at 532 Upper Falls Boulevard where Quincy and
Plaintiffs resided. These materials were provided by Cashman (ECF
#73) and the RPD Defendants (ECF #72). For the reasons discussed
herein, Cashman’s motion for summary judgment is granted; the RPD
Defendants’ motion for summary judgment is granted; and Plaintiffs’
complaint is dismissed in its entirety.
II.
Factual Background and Procedural History
The following factual summary is drawn from the pleadings,
deposition transcripts, and exhibits on file with the Court.
Because this case is at the summary judgment stage, the Court is
required to view all facts and draw all reasonable inferences in
favor of the nonmoving parties. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586–87 (1986). In addition, the
Court is asked to resolve issues of qualified immunity; this
inquiry
again
requires
taking
the
facts
“in
the
light
most
favorable to the party asserting the injury.” Saucier v. Katz, 533
-2-
U.S. 194, 201 (2001). Unless otherwise indicated, the facts set
forth below are undisputed.
A.
Quincy’s Parole Agreement
Quincy, who has a 2007 New York State court conviction for
third-degree criminal possession of a weapon and second-degree
burglary, was released to the custody of the Parole Division on
August 5, 2011. Prior to his release, he signed a “Certificate of
Release to Parole Supervision,” pursuant to which he agreed to
abide by certain conditions, including the following:
4.
I will permit my Parole Officer to visit me at my
residence and/or place or employment and I will permit
the search and inspection of my person, residence and
property. I will discuss any proposed changes in my
residence, employment or program status with my Parole
Officer. I understand that I have an immediate and
continuing duty to notify my Parole Officer of any
changes in my residence, employment or program status
when circumstances beyond my control make prior
discussion impossible.
. . .
7.
I will not be in the company of or fraternize with
any person I know to have a criminal record . . . without
the permission or my Parole Officer.
. . .
9.
I will not own, possess, or purchase any shotgun,
rifle or firearm of any type without the written
permission of my Parole Officer . . . .
13Q. I will reside only in the residence approved by the
Division of Parole.
(See Exhibits (“Exs.”) A & B to Declaration of Curt Cashman
(“Cashman Decl.”) (ECF #16-3); Ex. F to Declaration of Gary Levine,
-3-
Esq., dated August 8, 2017 (“8/8/17 Levine Decl.”) (ECF #64-3),2
pp. 408-415 of 415).
B.
Quincy Moves
Boulevard
Into
Apartment
2
at
532
Upper
Falls
In preparation for Quincy’s release to parole, his living
arrangements were coordinated between the Parole Division and his
mother, non-party Lisa Reed (“Lisa”). Lisa proposed to have Quincy
reside with her and her husband, Charles, at their residence at 14
Lavender Circle in the Town of Henrietta, New York. Because Charles
has a criminal record, including multiple felony convictions, the
NYS Parole Division denied that request. As an alternative, Lisa
proposed that Quincy reside in a building she owned located at 532
Upper Falls Boulevard in Rochester, New York.3 The building was
vacant and the upstairs, which was residential space, had not been
renovated. Lisa stated that she was planning to divide the upstairs
into two apartments and proposed having Quincy live in the front
apartment. This apartment is denominated “Apt. 2” on the diagram
marked as Deposition Exhibit (“Dep. Ex.”) #7 (ECF #64-3, p. 383 of
415). It is
on the south-side of the building and is through the
2
Exhibits A, B, C, D, E, and F to the 8/8/17 Levine Decl. are all docketed
at ECF #64-3. Page citations in the form of “p. # of #” refer to the pagination
automatically generated by the Court’s CM/ECF system.
3
The building is located on the northwest corner of Upper Falls
Boulevard and Henry Street, and fronts on Upper Falls Boulevard.
The upstairs is accessed from a stairway running from Henry Street
on the east side of the building up to a hallway. (See Dkt #27-3,
p. 17 of 46; and Dkt #64-2, pp. 380 & 383 of 415).
-4-
door on the left at the top of the stairwell leading from the
outside door that opens onto Upper Falls Boulevard. At the time
Lisa was negotiating arrangements with the Parole Division, the
north-side apartment to the right at the top of the stairwell was
uninhabitable. This apartment is denominated “Apt. 1” on the
diagram marked as Dep. Ex. #7 (ECF #64-3, p. 383 of 415). There was
a common bathroom on the second floor of 532 Upper Falls Boulevard,
which had doors opening into both Apt. 1 on the north-side and
Apt. 2 on the south-side.
(See 8/8/17 Levine Decl., Ex. F (ECF
#64-3), pp. 116-19, 197, 343-44, 362, & 383 of 415).
Upon his release to parole in August 2011, Quincy began
residing in Apt. 2, the left-hand or south-side apartment at
532 Upper Falls Boulevard. Quincy resided alone in the building at
532 Upper Falls Boulevard until the end of 2011.
C.
Quincy Moves to 14 Lavender Circle and Charles Moves to
532 Upper Falls Boulevard
At the end of 2011, Quincy secured employment at a company in
Henrietta, New York. He proposed moving in with his parents at
14 Lavender Circle because Lisa was willing to drive him back and
forth to work. Lisa and Charles agreed, and Quincy moved to
14 Lavender Circle at the beginning of 2012.
In the course of a home visit by Quincy’s former parole
officer to 14 Lavender Circle, Charles was present. This parole
officer reminded them that according to the terms of Quincy’s
-5-
parole
agreement,
Charles
and
Quincy
could
not
reside
there
together due to Charles’ history of felony convictions.
Charles then moved to 532 Upper Falls Boulevard and took up
residence in Apt. 2, the left-hand or south-side apartment that
Quincy previously had occupied. Quincy remained at 14 Lavender
Circle.
D.
Quincy Moves Back to 532 Upper Falls Boulevard
In or about March of 2012, Quincy quarreled with his sister,
who also was living at Lavender Circle. Consequently, the Parole
Division directed him to move out of that residence.
Quincy
decided
to
return
to
532
Upper
Falls
Boulevard.
However, Charles and Richard4 were living in Apt. 2 on the southside, where Quincy had lived when he first was released on parole.
By
this
time,
Apt.
1
on
the
north-side
apartment
had
been
renovated, so Quincy moved into that apartment. The apartments
still were connected by the common bathroom which could be accessed
from both apartments. (See Dkt #64-3, pp. 19-21 & 383 of 415).
Charles and Richard were both well aware of Quincy’s parole status,
and the fact that he was subject to a search condition. Quincy
admitted that he did not “technically” get permission to live in
Apt. 1 while Richard and Charles were living in Apt. 2, but Cashman
4
At some point prior to Quincy’s return to Upper Falls Boulevard, his
brother, Richard, also a plaintiff in this action, had finished college and had
moved into the apartment in which his father, Charles, was residing.
(See Dkt #27-3, p. 34 of 46; Dkt #64-3, p. 17 of 415).
-6-
“never came in the house” to “check it.” (Deposition of Charles
Quincy Reed (“Quincy Dep.”) at 19).
Sometime prior to May 1, 2012, Quincy requested, on behalf of
the Parole Division, that Lisa draw up a lease in connection with
his residence at 532 Upper Falls Boulevard. (Dkt #64-3, p. 72 of
415). On May 1, 2012, Quincy executed a lease pertaining to
“apartment 1.” However, Lisa had not ascribed numbers to the two
apartments, and the number itself meant nothing to her. (Dkt #64-3,
p. 73 of 415).
E.
Cashman’s Conducts a Home Visit in May 2012
Cashman was assigned as Quincy’s parole officer in May of
2012.
The
Parole
Division’s
case
management
system
(“CMS”)
indicated that, at the time of Quincy’s release to parole in August
2011, only one apartment had been remodeled, it was on the front or
south end of the building (Apt. 2); the CMS entry, which had been
made by former parole officer Maria Rhodes, indicated that “the
bedroom” was on the west side of the apartment, and that the
remodeled apartment included a living room, a kitchen, an office,
and a bathroom, and that Quincy’s mother was continuing with the
remodeling. (Transcript at 58-59, 77). On May 31, 2012, after
reviewing Quincy’s parole file which still indicated that Quincy
was living in Apt. 2, the south-side apartment at 532 Upper Falls
Boulevard, Cashman made a home visit. Cashman and Quincy only met
-7-
outside, and Cashman did not go into the building. Thus, Cashman
did not see the actual arrangement of the apartments.
F.
The Decision to Conduct a Parole Search of Quincy’s
Residence
In late July of 2012, Cashman had received information from a
daily email bulletin distributed by the Monroe Crime Analysis
Center
(“MCAC”)5
(“Gatson”),
a
that
former
an
State
individual
parolee,
named
had
Taiquan
been
shot.
Gatson
The MCAC
bulletin indicated that the person believed to have shot Gatson was
named
“Charles
Reed.”
Cashman
deduced
that
the
Charles
Reed
referenced in the MCAC bulletin was the Charles Reed on his case
load, i.e., Quincy. According to Cashman, Quincy had a history of
gang involvement, and there was, at that time, a feud between
Gatson’s gang and Quincy’s gang. Cashman determined that it was
good time to search Quincy’s apartment since he still might have
the weapon with which Gatson was shot or a weapon for his own
protection.
On July 27, 2012, Cashman and parole officer Kimberly Smith
attended the roll-call of Operation IMPACT, a county-wide task
force with which they were working. Cashman informed the officers
present that he was planning on doing a parole search of Quincy’s
5
New York State Division of Criminal Justice Services,
“State-of-the-art Crime Analysis Center opens in Monroe County,”
http://www.criminaljustice.ny.gov/pio/press_releases/2008-11-17_pressrelease.h
tml (last accessed Aug. 15, 2018).
-8-
apartment that evening and would appreciate assistance from the
RPD.
F.
The July 27, 2012 Search of 532 Upper Falls Boulevard
1.
The Initial Entry
Cashman, along with the RPD Defendants, arrived at 532 Upper
Falls Boulevard at about 9:30 p.m. Richard testified that he first
encountered Cashman and the other officers “at the outside door” to
the building. (Deposition Transcript of Richard Lee Reed (“Richard
Dep.”) at 30, Ex. C to 8/8/17 Levine Decl. (ECF #64-3)). Cashman
asked, “[W]here’s your brother?” (Id. at 31). Richard said he did
not know if Quincy was “up there,” which led Cashman to ask,
“[W]hat are you doing here?” (Id.). Richard replied that he lived
there, “on the other side” and that he was going upstairs to get
something from his apartment. (Id. at 31-32). Cashman said, “[‘]I’m
[Quincy’s]
parole
officer,[’]
and
that’s
when
he
identified
himself” and “said we’re doing a routine in-home visit.” (Id. at
30-31). Richard then testified as to his internal monologue or
thought process during his encounter with Cashman:
[T]hat’s fine, okay, do what you have to do. I still have
to be somewhere in Buffalo. This is a routine home visit,
so I have no issue with me [sic], I don’t care, do your
home visit. [Quincy]’s on parole and this is a
stipulation, it [is] part of his parole and you want to
come in here, do that, whatever. It was surprising it was
so many people, but I’m still going up to my apartment.
I go up into my apartment . . . .
(Richard Dep. at 31).
-9-
Richard testified that Cashman began following him up the
stairs from the exterior door. Richard asked him why he was “coming
up here,” to which Cashman replied, “this is a routine home visit.
We don’t need any warrants, we don’t need anything, we’re going up
and we’re going up here.” (Richard Dep. at 32). Then, “[a]ll” of
the officers
followed
Cashman, who
was
“kind of
leading
the
pack[.]” (Id.). Richard testified that it “was weird,” but he was
“thinking at a routine home visit this is what happens, so I let
them do it[.]” (Id.). Richard claimed that he “didn’t let them come
inside[.]” (Id.). Rather, Cashman’s “words of, [‘]this is a routine
home visit,[’] . . . made [Richard] think [Cashman] can do whatever
he wants to do at that point.” (Id.). Richard then asked Cashman,
“do you have a search warrant? Why are you coming up here?”
(Richard Dep. at 32). Cashman reiterated, “we don’t have to have a
search warrant” because “[t]his [is] a routine home visit, I’m
[Quincy’s] parole officer.” (Id. at 33).
While they were on the landing, Richard did not explain to the
officers which apartment was his and which was Quincy’s, since he
“assumed” that Cashman, as Quincy’s parole officer, already knew.
(Richard Dep. at 33). In addition, Cashman did not ask which
apartment was Quincy’s. (Id.).
Richard “opened the door [to the left, leading to Apt. 2], to
go and get [his] stuff.” (Richard Dep. at 34). Cashman and the
officers “push[ed] past [him]” into the hallway. Richard saw Quincy
-10-
“standing down here [sic] by the door to [Richard’s] bedroom.”
(Id.). Cashman saw Quincy at the same time. (Id.). Quincy “froze”
and “put his hands up[.]” (Id. at 35). Quincy was handcuffed first
and then Richard was placed in handcuffs within “probably two
minutes” of being upstairs; it is not clear from the deposition
transcript where he was handcuffed, however. (Id.). He eventually
ended up in the living room with Quincy and Quincy’s girlfriend,
who also had been handcuffed. (Id. at 36).
Cashman, on the other hand, testified that when he encountered
Richard at the exterior door and asked if Quincy was home, Richard
replied, “yeah, he should be upstairs.” Richard then “walked up the
stairs”
and
“opened
the
door
to
the
left.”
(Transcript
of
Suppression Hearing dated March 8, 2013 (“Supp. Tr.”), Ex. E to
8/8/17 Levine Decl. (ECF #64-3) at 74-75).6 According to Cashman,
Richard pointed out his bedroom, which was on the west side of the
building (marked “Richard Bedroom” on Dep. Ex. #7), and said that
the doorway at the end of the hall (which is marked “office/Quincy
found” on Dep. Ex. #7) was Quincy’s bedroom. (Supp. Tr. at 81).
Cashman knocked on the door;
Quincy answered the door and looked
like he had perhaps just been sleeping. He was wearing boxer shorts
6
Cashman testified at the suppression hearing held in connection with
Quincy’s subsequent arrest on charges of second-degree and third-degree criminal
possession of a weapon based on the discovery of a handgun during the July 27,
2012 parole search.
-11-
and a t-shirt. There was a futon in the room on which Quincy’s
girlfriend was lying.
Cashman testified that as soon as he walked through the door
to the room marked “office,” he saw a little fake plant in a pot on
a stand; inside the pot was a small black pistol, with the magazine
“sort of out of it.” (Supp. Tr. at 26). Cashman then turned the
scene over to the RPD because there was a possible new violation of
law. Cashman assisted the RPD officers with a full search of the
room and found a pair of pants and a wallet with Quincy’s driver’s
license in it. (Supp. Tr. at 44).
However, Cashman did not assist
the RPD officers in searching the remainder of Apt. 2, and left
about a half-hour after he arrived. (Supp. Tr. at 37).
Quincy testified to a slightly different version. He related
that he and his girlfriend, Brittany Breedlove, were in the room
marked “office” on Dep. Ex. #7 sleeping on a pull-out futon. Quincy
was sitting on the futon when Cashman came into the room. (Quincy
Dep. at 26-28). Quincy said he had woken up when he heard Richard
arguing with the officers outside in the hallway.
Richard testified that he remained upstairs in the living
room,
handcuffed,
until
the
point
that
Cashman
and
the
RPD
Defendants found the handgun in the room denominated as “office” on
Dep. Ex. #7. (Richard Dep. at 37). After that, Richard recalled, a
black detective in a suit asked him if he would consent to a search
of
the
entire
premises;
Richard
-12-
refused,
and
he
was
taken
downstairs and placed in a patrol car. Quincy and his girlfriend
already had been brought downstairs. (Richard Dep. at 39). Also,
prior to Richard being removed from the apartment, Charles and his
grandson (Quincy’s son) arrived at the residence. Charles and the
grandson
were
allowed
to
remain
upstairs
during
the
search.
According to Charles, he heard Cashman say to the RPD officers that
“in order to do the proper search you have to get, you have to do
the proper paperwork,” and “I don’t have no more control over
nothing
there
because
I
found
what
I
came
and
look
for.”
(Deposition of Charles Reed, Sr. (“Charles Dep.”) at 63, 91).
Charles testified that Cashman then left and the search continued.
Charles testified that Quincy was over in his (Charles’s)
office on the night of July 27, 2012, because Charles had an air
conditioner in that room, and Quincy did not have cable in his
apartment, so he and his girlfriend were “just over there chilling.
. . .” (Charles Dep. at 58). Charles admitted that Quincy would “be
over there [in Charles and Richard’s apartment] all the time.” (Id.
at 62). Charles testified, “We watched TV together, we conspire,
you what I’m saying, my son, so he’d be over there all the time.
You know, his brother’s there.” (Id.).
Richard remained in the patrol car for a couple of hours while
the apartment was searched. He was not placed under arrest. During
this time, he observed a safe being removed from the apartment by
the RPD Defendants. A narcotics dog had alerted on the safe, which
-13-
had been in the closet in the room where Quincy, his girlfriend,
and the gun were found. However, the safe was empty. According to
Charles, Investigator Powell of the RPD seized the safe. (Charles
Dep. at 88).
III. Summary Judgment Standard
A “court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c).
In reviewing a motion for summary judgment, a court must “view the
facts and draw reasonable inferences in the light most favorable to
the party opposing the summary judgment motion.” Scott v. Harris,
550 U.S. 372, 378 (2007). If the movant sustains his initial burden
of establishing the absence of any genuine issue of material fact,
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986), the
nonmovant in turn must produce evidence that would support a jury
verdict, id. In other words, “the burden shifts to the nonmovant to
point to record evidence creating a genuine issue of material
fact.” Salahuddin v. Goord, 467 F.3d 263, 273 (2d Cir. 2006)
(citing FED. R. CIV. P. 56(e); Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986)). “Even where facts are
disputed, in order to defeat summary judgment, the non-moving party
must offer enough evidence to enable a reasonable jury to return a
verdict in its favor.” Byrnie v. Town of Cromwell, Bd. of Educ.,
243 F.3d 93, 101 (2d Cir. 2001) (citing Anderson, 477 U.S. at 248;
-14-
other citation omitted). Summary judgment must be granted if the
non-moving party fails to make a showing sufficient to establish
the existence of an element essential to that party’s case and on
which that party will bear the burden of proof at trial. Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The Second Circuit has held that where, as here, the nonmovant
is proceeding pro se, a court should read that party’s supporting
papers
liberally
and
“interpret
them
to
raise
the
strongest
arguments that they suggest.” Burgos v. Hopkins, 14 F.3d 787, 790
(2d Cir. 1994).
IV.
The Summary Judgment Motions
A.
All Claims Against Former RPD Chief Sheppard
Dismissed for Lack of Personal Involvement
Are
Sheppard, the former chief of police of the RPD, has moved for
summary judgment on the basis that Plaintiffs have failed to
establish his personal involvement in the alleged constitutional
violations. Plaintiffs have not meaningfully opposed this argument.
“‘[P]ersonal
involvement
of
defendants
in
alleged
constitutional deprivations is a prerequisite to an award of
damages under [42 U.S.C.] § 1983.’” Wright v. Smith, 21 F.3d 496,
501 (2d Cir. 1994) (quoting Moffitt v. Town of Brookfield, 950 F.2d
880, 885 (2d Cir. 1991)). Hence, supervisory officials may not be
held liable merely because they held a position of authority. Black
v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996). However, a supervisory
defendant may be considered “personally involved” if (1) the
-15-
defendant
participated directly
in
the
alleged
constitutional
violation; (2) the defendant, after being informed of the violation
through a report or appeal, failed to remedy the wrong; (3) the
defendant created a policy or custom under which unconstitutional
practices occurred, or allowed the continuance of such a policy or
custom; (4) the defendant was grossly negligent in supervising
subordinates who committed the wrongful acts; or (5) the defendant
exhibited deliberate indifference to the rights of the plaintiff by
failing to act on information indicating that unconstitutional acts
were occurring. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)
(citing Williams v. Smith, 781 F.2d 319, 323–24 (2d Cir. 1986)).
In his supporting declaration (ECF #66-12), Sheppard avers
that
he
was
the
police
chief
from
November
11,
2010,
until
December 20, 2013, and that he is now retired. Sheppard asserts
that he was not consulted about, and had no involvement in, any of
the events of July 27, 2012, and did not learn of them until after
he had retired. As Sheppard notes, he is mentioned in one paragraph
of the complaint and only by reference to his status, the supposed
duties of his former office, and his residence. There are no
allegations of negligence or other culpability, direct or indirect,
on Sheppard’s part. Nor were any such allegations made by any of
the individuals deposed in this action (i.e., Charles, Quincy,
Richard, and Lisa Reed).
-16-
It is well settled that “if the defendant is a supervisory
official, a mere ‘linkage’ to the unlawful conduct through the
“[departmental] chain of command” (i.e., under the doctrine of
respondeat superior) is insufficient to show his or her personal
involvement in that unlawful conduct.” Tafari v. McCarthy, 714 F.
Supp.2d 317, 343 & n. 9 (N.D.N.Y. 2010) (citing Polk County v.
Dodson, 454 U.S. 312, 325 (1981); Richardson v. Goord, 347 F.3d
431,
435
(2d
Cir.
2003);
other
citations
omitted);
see
also Felix-Torres v. Graham, 687 F. Supp.2d 38, 61 (N.D.N.Y. 2009)
(“A position in a hierarchical chain of command, without more, is
insufficient to support a showing of personal involvement.”). The
Court agrees that dismissal of Sheppard as a defendant is proper
because Plaintiffs have failed to allege that he “fail[ed] to act
on information indicating unconstitutional acts were occurring or
for his gross negligence in failing to supervise his subordinates
who commit such wrongful acts,” Poe v. Leonard, 282 F.3d 123, 140
(2d Cir. 2002) (citations omitted), much less that there is “an
affirmative causal link” between the Sheppard’s alleged inaction or
malfeasance and their injuries, id.
B.
The Claims Against Unidentified “Known and Unknown
Law/Police Agents, State Police” Are Dismissed as
Untimely
On December 26, 2012, the Court (Skretny, D.J.), in an order
granting Plaintiffs in forma pauperis status, directed Plaintiffs
to conduct discovery in order to identify any unnamed “known and
-17-
unknown” defendants and to amend their complaint to include them
prior to the expiration of the statute of limitations. The RPD
Defendants
argue
that
Plaintiffs’
failure
to
do
so
warrants
dismissal of all claims against any “known and unknown” defendants.
As Section 1983 does not contain a statute of limitations
governing
actions
appropriate
state
brought
law
under
statute
it,
of
courts
must
an
Lounsbury
limitations.
“borrow”
v.
Jeffries, 25 F.3d 131, 133 (2d Cir. 1994) (collecting cases). The
Supreme
Court
has
directed
that
for
statute
of
limitations
purposes, Section 1983 claims are best characterized as personal
injury actions.
Wilson
v.
Garcia,
471
U.S.
261,
272
(1985),
superceded by statute on other grounds as recognized in Jones v.
R.R. Donnelley & Sons Co., 541 U.S. 369, 377-81 (2004). Where, as
here, “state
law provides multiple statutes of limitations for
personal injury actions, courts considering § 1983 claims should
borrow
the
general
or
residual
statute
for
personal
injury
actions.” Owens v. Okure, 488 U.S. 235, 249-50 (1989). New York’s
general statute for such cases, codified at New York Civil Practice
Law and Rules § 214(5), is three years. See Owens, 488 U.S. at
249-50 (finding that New York Court of Appeals correctly applied
New York’s three-year statute of limitations governing general
personal injury actions to § 1983 claim).
The limitations period on Plaintiffs’ Section 1983 claims
commenced
on July
27,
2012,
when the
-18-
warrantless
search
was
conducted. The limitations period therefore expired on July 27,
2015, making Plaintiffs’ claims against the unknown defendants
untimely.
“It 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[.]” Tapia-Ortiz v. Doe, 171 F.3d 150, 152 (2d Cir. 1999) (per
curiam) (quotation omitted; brackets in original). Courts typically
refrain from dismissing suits against unknown or so-called “John
Doe” defendants “until the plaintiff has had some opportunity for
discovery to learn the identities of responsible officials[.]”
Davis v. Kelly, 160 F.3d 917, 921 (2d Cir. 1998).
Here, Plaintiffs
have had the opportunity to participate in discovery and have had
ample
time
to
identify
and
serve
any
“known
and
unknown”
defendants. To date, Plaintiffs have not done so. Any claims
against the “known and unknown” defendants are now untimely by more
than three years. Accordingly, the Court dismisses all claims
against any “known and unknown” defendants with prejudice. See,
e.g., Tapia-Ortiz, 171 F.3d at 152 (pro se plaintiff’s “failure
until two years after the expiration of the statute of limitations
period to name specifically in his complaint the officers who
allegedly violated his rights” was “fatal” to civil rights claim).
-19-
C.
The Fourth Amendment Claims Against Cashman, Minurka,
Jimenez, and Powell Are Dismissed As a Matter of Law
1.
The Fourth Amendment
The broad legal principles concerning entry by state officials
into a home are “well settled[.]” Schneckloth v. Bustamonte, 412
U.S. 218, 219 (1973). The Supreme Court has unequivocally held that
“under
the
Fourth
and
Fourteenth
Amendments
.
.
.
a
search
conducted without a warrant issued upon probable cause is ‘per se
unreasonable . . . subject only to a few specifically established
and well-delineated exceptions.’” Schneckloth, 412 U.S. at 219
(quoting Katz v. United States, 389 U.S. 347, 357 (1967); other
citations omitted). “Entrance by the police into a home—which
constitutes a search for Fourth Amendment purposes—is permissible
only where justified by a warrant, exigent circumstances, or valid
consent.” Smith v. City of Wyoming, 821 F.3d 697, 709 (6th Cir.
2016) (citing Payton v. New York, 445 U.S. 573, 590 (1980) (in the
absence of “exigent circumstances,” requiring a warrant to search
a home); Schneckloth, 412 U.S. at 222 (noting the validity of “a
search [of a home] authorized by consent”)).
a.
The
Consent
Requirement
Exception
to
the
Warrant
The prohibition against warrantless searches does not apply to
“situations in which voluntary consent has been obtained, either
from the individual whose property is searched,” Illinois v.
Rodriguez, 497 U.S. 177, 181 (1990), (citation omitted), “or from
-20-
a
third
party
who
possessed
common
authority
over
or
other
sufficient relationship to the premises or effects sought to be
inspected,” id. (citation omitted). The Supreme Court explained in
United States v. Matlock, 415 U.S. 164 (1974), that “[c]ommon
authority is . . . not to be implied from the mere property
interest a third party has in the property, . . . but rests on
mutual use of the property by persons generally having joint access
or control for most purposes. . . .” Id. at 171, n. 7 (internal
citations omitted). “[T]he exception for consent extends even to
entries and searches with the permission of a co-occupant whom the
police reasonably, but erroneously, believe to possess shared
authority as an occupant[.]” Georgia v. Randolph, 547 U.S. 103, 109
(2006) (citing Rodriguez, 497 U.S. at 186).
b.
The Probation/Parole Exception
“Another exception to the principle that warrantless searches
of a home are unreasonable relates to persons who are on probation
or parole.” Smith v. City of Santa Clara, 876 F.3d 987, 991
(9th Cir. 2017) (citing Griffin v. Wisconsin, 483 U.S. 868, 880
(1987); United States v. Knights, 534 U.S. 112, 118–19 (2001)). In
Griffin, the Supreme Court justified the warrantless search of a
probationer’s home because the State’s interest in supervising a
probationer gave rise to “special needs” permitting a “degree of
impingement upon privacy that would not be constitutional if
applied to the public at large.” 483 U.S. at 875. These “special
-21-
needs” rendered the warrant requirement impracticable. Id. at 87578. In Knights, the Supreme Court found a warrantless search of a
probationer’s home reasonable even though it was conducted by a
sheriff’s deputy rather than a probation officer and the purpose of
the search was not to supervise the probationer but to investigate
a specific crime. Knights, 534 U.S. at 121. Rather than relying on
either the special needs rationale or the consent exception line of
cases, the Supreme Court began by observing that “[t]he touchstone
of the Fourth Amendment is reasonableness[,]” which “is determined
‘by assessing, on the one hand, the degree to which it intrudes
upon an individual’s privacy and, on the other, the degree to which
it
is
needed
for
the
promotion
of
legitimate
governmental
interests.’” Id. (quoting Wyoming v. Houghton, 526 U.S. 295, 300
(1999)).
An
individual’s
status
as
a
probationer
or
parolee
“informs both sides of that balance.” Id. at 119. Both probationers
and parolees “are on the ‘continuum’ of state-imposed punishments.”
Id. “On this continuum, parolees have fewer expectations of
privacy
than
probationers,
because
parole
is
more
akin
to
imprisonment than probation is to imprisonment.” Id.
After balancing the respective interests of the State and the
individual, the Supreme Court concluded that a warrantless search
of the home of a probationer subject to a search condition is
reasonable
as
to
the
probationer
if
the
authorities
have
“reasonable suspicion” that criminal conduct was occurring. Id. at
-22-
121. Subsequently, in Samson v. California, 547 U.S. 843, 850
(2006), the Supreme Court held that no individualized suspicion at
all was required to search a California state parolee’s person when
he had accepted a condition agreeing to searches with or without a
warrant, and with or without cause. Id. at 846 (citation omitted).
In both Knights and Samson, “the Supreme Court based its conclusion
on
the
fact
that
a
probationer
or
parolee
has
a
diminished
expectation of privacy, especially when he accepts probationary
conditions that explicitly and unambiguously inform him of a police
officer’s authority to search his property.” Sharp, 871 F.3d at 918
(citing Knights, 534 U.S. at 119–20; Samson, 547 U.S. at 851-52).
2.
Overview of the Parties’ Arguments
This is not a run-of-the-mill parole search case, because the
plaintiffs here, Richard and Charles, are not parolees. Rather,
they were co-tenants or co-residents with a parolee (Quincy).
Plaintiffs’ basic contention is that what is permissible as to
parolees is not permissible as against non-parolees because a nonparolee should not be made to suffer the consequences of a parole
search directed at a parolee. Plaintiffs argue that Cashman and the
RPD Defendants actions were unreasonable because they searched an
apartment that they knew did not belong to Quincy, the parolee.
Plaintiffs further contend that the search was unreasonable because
Cashman and the RPD Defendants did not have their consent.
-23-
Cashman and the RPD Defendants raise similar arguments. They
contend that Richard provided consent to enter the apartment and
search the room in which Quincy was found by virtue of his words
and actions.7 Because Charles was absent, they argue, he could not
withhold consent and they were not required to obtain his consent.
In the alternative, the contend that Georgia v Randolph, supra,
does not apply in the parole search context and that because
Richard and Charles knowingly co-habited with a parolee, they had
a
reduced
expectation
of
privacy
in
their
home,
which
was
outweighed by the important State interests underlying Quincy’s
parole search condition. In light of this reduced expectation of
privacy, they argue, search was reasonable as to Richard and
Charles. Cashman and the RPD Defendants also contend that even if
a constitutional violation occurred, they are entitled to qualified
immunity because the law is in flux concerning the issues raised in
the complaint.
3.
The Qualified Immunity Test
State officials can demonstrate they are entitled to qualified
immunity from law suits arising from their discretionary actions in
two ways: “First, they are immune from liability if their conduct
does not violate ‘clearly established’ statutory or constitutional
rights the existence of which a reasonable person would have
7
Cashman asserts that he was not involved in the search of the remainder of
the apartment that ensued after Richard specifically withheld consent.
-24-
known.” Moore v. Vega, 371 F.3d 110, 114 (2d Cir. 2004) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); citation omitted).
Second, State officials will be entitled to qualified immunity “if
they can establish that it was objectively reasonable for them to
believe their actions were lawful at the time.” Id. (citation
omitted). In other words, State officials are immune from suit “as
long as their actions could reasonably have been thought consistent
with the rights they are alleged to have violated.” Anderson v.
Creighton, 483 U.S. 635, 638 (1987).
While the Supreme Court “‘do[es] not require a case directly
on point’” for a right to be clearly established, “‘existing
precedent must have placed the statutory or constitutional question
beyond debate.’” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015)
(quoting Ashcroft v. al–Kidd, 563 U.S. 731, 741 (2011)). Last year,
in 2017, the Supreme Court “reiterate[d] the longstanding principle
that ‘clearly established law’ should not be defined ‘at a high
level of generality.’” White v. Pauly, 137 S. Ct. 548, 552 (2017)
(per curiam) (quoting al–Kidd, 563 U.S. at 742). Rather, “the
clearly established law must be ‘particularized’ to the facts of
the case.” Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640
(1987)). That is, the plaintiff “must point to prior case law that
articulates a constitutional rule specific enough to alert these
[officers]
in
this
case
that
their
particular
conduct
was
unlawful.” Sharp, 871 F.3d at 911 (citing Wilson v. Layne, 526 U.S.
-25-
603, 617 (1999) (prior precedent must be “controlling” from the
Supreme Court or the Circuit court in the relevant jurisdiction, or
otherwise embraced by a “consensus” of courts outside the relevant
jurisdiction); emphases in original). Otherwise, “[p]laintiffs
would be able to convert the rule of qualified immunity . . . into
a rule of virtually unqualified liability simply by alleging
violation of extremely abstract rights.”
Anderson, 483 U.S. at
639.
“In a damages action asserting an illegal search, ‘[t]he
relevant question . . . is . . . whether a reasonable officer could
have believed [the] search to be lawful, in light of clearly
established
law
and
the
information
the
searching
officers
possessed.’” Moore v. Vega, 371 F.3d 110, 115 (2d Cir. 2004)
(quoting Anderson, 483 U.S. at 641 (ellipses and brackets in
original);
citing
Castro
v.
United
States,
34
F.3d
106, 112
(2d Cir. 1994) (“Officials are entitled to qualified immunity when
their decision was reasonable, even if mistaken.”) (emphasis in
original); Butz v. Economou, 438 U.S. 478, 507 (1978) (stating that
federal officials are shielded by qualified immunity from mere
mistakes in judgment regardless of whether the mistake is one of
fact or law)).
-26-
4.
Analysis
a.
It Was Reasonable for Cashman and the RPD
Defendants to Believe that Apt. 2 Was Quincy’s
Residence
“Generally, a condition of parole that permits warrantless
searches provides officers with the limited authority to enter and
search a house where the parolee resides, even if others also
reside there. But they have to be reasonably sure that they are at
the right house.”
Motley v. Parks, 432 F.3d 1072, 1079 (9th Cir. 2005) (emphasis in
original), overruled on other grounds by United States v. King, 687
F.3d 1189 (9th Cir. 2012). Here, Cashman and the RPD Defendants
believed they were entering the residence of Quincy, a parolee in
Cashman’s legal custody,8 when they followed Richard inside of 532
Upper Falls Boulevard and up the stairs, and went into the southside apartment on the left at the top of the stairs. “If such
belief
was
reasonable,
qualified
immunity
protects
liability, even if that belief was mistaken.”
them
from
Moore, 371 F.3d at
117 (citing Ehrlich v. Town of Glastonbury, 348 F.3d 48, 60–61
(2d
Cir.
2003)
(police
officers
could
have
believed
that
warrantless entry based on third-party consent was lawful given
8
“A parole officer has legal custody of the parolee to whom he is assigned,
which imposes on the officer a duty to monitor that parolee’s adherence to the
terms of his parole.” Moore, 371 F.3d at 116 (citing United States v. Thomas, 729
F.2d 120, 123 (2d Cir. 1984) (citing N.Y. EXEC. LAW § 259-i(2)(b) (McKinney
1982)).
-27-
conservator’s letter granting permission to use force to enter)).
The Court finds that Cashman’s belief was reasonable. The last
entry in
approved
the
Parole
residence
Division’s
was
the
CMS
system
south-side
or
was
that Quincy’s
left-hand
apartment
(denominated Apt. 2 on Dep. Ex. #7), and that Apt. 1 was not
renovated or habitable. Quincy admitted that he did not update the
Parole Division about his change in living arrangements when he
returned to 532 Upper Falls Boulevard in 2012 and moved into
Apt. 1; nor was the Parole Division updated that Quincy’s mother
had finished remodeling Apt. 1. Thus, when Cashman made a homevisit in May of 2012, the only information available in CMS was
that
there
was
one
habitable
apartment
at
532
Upper
Falls
Boulevard, Apt. 2. Moreover, Quincy could have, but did not, notify
Cashman during that home visit that he actually was living in
Apt. 1, not Apt. 2.
The facts surrounding where Quincy was located at the time
Cashman and the RPD Defendants entered Apt. 2 are disputed. Cashman
testified, as noted above, that Richard directed him to the door at
the end of the hallway (the room marked “office”) and said that was
Quincy’s bedroom. Cashman also testified that he “went straight to
Quincy's bedroom, which is the first door on the south side,
straight at the end of the hall.” (Supp. Tr. at 25). Cashman
knocked on the door, and Quincy answered. Cashman testified that he
knew it was Quincy’s bedroom because Quincy’s former parole officer
-28-
Maria Rhodes (“Rhodes”) had made a notation in CMS of exactly where
Quincy’s bedroom was in relations to his brother’s bedroom. (Id.).
However, that does not make sense, because at the time that Rhodes
was supervising Quincy, in 2011, he was not living with Richard. In
addition, the text of the CMS entry by Rhodes, which was read into
the record at Quincy’s suppression hearing, refers to “[t]he
bedroom” in Apt. 2, not multiple bedrooms. “[T]he bedroom” in
Apt. 2 is not at the end of the hallway; it is the second door on
the west or right side of the hallway. (Dep. Ex. #7 (ECF #64-3,
p. 383 of 415)). Further inconsistency is found in Cashman’s
declaration submitted in connection with the prior summary judgment
motion wherein Cashman said that he had a “prior meeting with
[Quincy] in that apartment.” (Cashman Decl. (ECF #16-3) ¶ 17).
However, Cashman admitted at Quincy’s suppression hearing that he
never had been inside of 532 Upper Falls Boulevard prior to
July 27, 2012. (Supp. Tr. at 61).
When Cashman went to that
location at the end of May 2012, he spoke with Quincy outside by
the front door. (Id. at 71).
For his part, Quincy testified that he was in the room marked
“office” when Cashman entered the room, and that he was sitting on
the futon wearing a t-shirt and boxer shorts, and had just woken
up.
Richard, on the other hand, testified that Quincy was out in
the hallway near the doorway to the room marked “Richard Bedroom”
-29-
on Dep. Ex. #7 when Cashman and the RPD Defendants pushed past him
and went into the “office.”
Notwithstanding all of the foregoing factual inconsistencies
about where Quincy was located when Cashman and the RPD Defendants
first entered Apt. 2, it is undisputed that the last information
provided by Quincy to the Parole Division was that he did, in fact,
reside in Apt. 2. As a condition of his parole, Quincy was required
to allow his parole officer to visit him at his residence. By
virtue of the Certificate of Release to Parole Supervision, which
Quincy signed, he agreed to permit his parole officer to conduct a
“search and inspection of [his] person, residence and property” and
to “discuss any proposed changes in [his] residence . . . with
[his] Parole Officer.” Ex. A to Cashman Decl. (ECF #16-3). Prior to
July 27, 2012, Quincy admittedly did not notify the Parole Division
that he had moved into Apt. 1, and none of his family members did
so either. On the night of July 27, 2012, neither Quincy nor
Richard informed Cashman or the RPD Defendants that Quincy did not
live in Apt. 2 but instead lived in Apt. 1. On the present record,
the Court finds that Cashman had probable cause to believe that he
was in Quincy’s apartment.
The RPD Defendants, in turn, were reasonably entitled to rely
on the information obtained from Cashman about the location of
Quincy’s residence. See Motley, 432 F.3d at 1081 (“Effective and
efficient law enforcement requires cooperation and division of
-30-
labor to function. For that reason, law enforcement officers are
generally entitled to rely on information obtained from fellow law
enforcement officers.”) (citing Whiteley v. Warden, Wyoming State
Penitentiary, 401 U.S. 560, 568 (1971); other citation omitted).
b.
Cashman and the RPD Defendants Had Reasonable
Suspicion to Search the “Office” in Apt. 2
With regard to the search of the “office” and the remainder of
Apt.
2,
Cashman
and
the
RPD
Defendants
argue
that
they
had
“reasonable suspicion” to conduct it, based on the MCAC bulletin
indicating that a Charles Reed, whom Cashman believed was his
assigned
parolee,
Quincy,
was
responsible
for
a
gang-related
shooting. Cashman and the RPD Defendants also contend that even
without any suspicion, the search was reasonable based on Quincy’s
acceptance of a search condition as part of his parole agreement.
“Although probationers and parolees are subject to ‘a degree
of impingement upon privacy that would not be constitutional if
applied to the public at large,’” United States v. Newton, 369 F.3d
659, 665 (2d Cir. 2004) (quoting Griffin, 483 U.S. at 875), “the
law requires that such greater intrusions occur pursuant to a rule
or
regulation
‘that
itself
satisfies
the
Fourth
Amendment’s
reasonableness requirement,’” id. (quoting Griffin, 483 at 873).
New York State Division of Parole regulations state that “[a]
releasee will permit his parole officer to visit him at his
residence and/or place of employment and will permit the search and
inspection of his person, residence and property.” N.Y. COMP. CODES
-31-
R. & REGS. tit. 9, § 8003.2(d). Quincy was fully aware that the
conditions of his parole supervision included home visits and
searches,
as
demonstrated
by
his
signature
on
the
document
specifically informing this condition of his parole, he had a
“severely diminished expectation of privacy with respect to any
home visit by a [parole] officer.” United States v. Reyes, 283 F.3d
446, 461 (2d Cir. 2002). Caselaw in this Circuit indicates that a
parolee’s significantly diminished expectation of privacy follows
him to premises other than his own residence. See United States v.
Viserto, 391 F. App’x 932, 934 (2d Cir. 2010) (unpublished opn.)
(stating that “even if Viserto[, a parolee,] has standing to
challenge
the
entry
of
his
wife’s
home,
he
cannot
claim
a
legitimate expectation of privacy against a parole search in any
premises he used as a residence, particularly where the purpose of
the entry was not ‘arbitrary, capricious, or harassing’”) (internal
citation and other quotation omitted); United States v. Pabon, 603
F. Supp.2d 406, 417 (N.D.N.Y. 2009) (noting that recognizing a
parolee’s privacy interest in the home of a third party “would
grant the [parolee] broader rights in the third party’s home than
he would have in his own home” and holding that “regardless of
whether Pabon was living in Yager’s apartment, an overnight guest,
or merely there temporarily, he did not have an expectation of
privacy in Yager’s apartment that society would recognize as
legitimate”) (quotation omitted).
-32-
Nonetheless, the New York Court of Appeals has “cautioned that
standard release certificates should ‘not . . . be taken as an
unrestricted consent to any and all searches.’” Newton, 369 F.3d at
665 (quoting People v. Huntley, 43 N.Y.2d 175, 182 (1977); ellipsis
in original)). Huntley held that whether a particular warrantless
parole
search
“was
unreasonable
and
thus
prohibited
by
constitutional proscription must turn on whether the conduct of the
parole
officer
was
rationally
and
reasonably
related
to
the
performance of the parole officer’s duty. It would not be enough
necessarily that there was some rational connection; the particular
conduct
must
also
have
been
substantially
related
to
the
performance of duty in the particular circumstances.” Huntley,
43 N.Y.2d at 181. In United States v. Grimes, 225 F.3d 254 (2d Cir.
2000)
(per
curiam),
the
Second
Circuit
“held
that
Huntley’s
articulation of a reasonable relationship rule for warrantless
parole searches is ‘coextensive with the requirements of the Fourth
Amendment.’” Newton, 369 F.3d at 666 (quoting Grimes, 225 F.3d at
259 n. 4).
Applying Huntley to this case, the Court finds that the
reasonable
relationship
requirement
was
satisfied.
“‘[T]he
obligation to detect and prevent parole violations so as to protect
the public from the commission of further crimes’ is part of a
parole
officer’s
duty.”
Newton,
369
F.3d
at
666
(quotation
omitted). Moreover, parole officers have a duty “to investigate
-33-
whether a parolee is violating the conditions of his parole, . . .
one of which, of course, is that the parolee commit no further
crimes[.]” Reyes, 283 F.3d at 459 (citations omitted). Thus, once
Cashman received information that Quincy might have been involved
in the shooting of a member of a rival gang, it was a reasonable
exercise of his parole duty to search Quincy’s apartment to detect
whether he was in possession of a firearm, which was a violation of
his parole conditions. See Newton, 369 F.3d at 666 (warrantless
search bore
performance
reasonable relationship to the parole officers’
of
their
duty
inasmuch
as
officers
had
received
information that parolee had a gun in his residence and had
threatened his mother and her husband). Moreover, the information
Cashman received from the county-wide crime analysis center was
consistent with reasonable suspicion. See United States v. Sokolow,
490 U.S. 1, 7 (1989) (reasonable suspicion requires an officer to
“be able to articulate something more than an
inchoate
and
unparticularized
suspicion
or
hunch”)
(internal
quotation marks and quotation omitted).
“[N]either Huntley nor Grimes holds that consent, whether
obtained pursuant to parole regulation [N.Y. COMP. CODES R. & REGS.
tit. 9,] § 8003.2 or otherwise, is required in addition to a
reasonable relationship to the parole officer’s duty to justify a
warrantless parole search.” Newton, 369 F.3d at 666. Nevertheless,
the New York State Division of Parole’s Policy and Procedures
-34-
Manual provides “that consent [of the parolee or another adult
member
of
warrantless
the
household]
search
of
a
must
be
parolee’s
obtained
to
residence.”
support
Id.
the
(citation
omitted). Here, the consent requirement clearly was satisfied by
Quincy’s signed certificate of release. Id. (citing People ex rel.
McNeil v. New York State Bd. of Parole, 87 Misc.2d 497, 501 (N.Y.
Sup. Ct. 1976) (holding that a parolee’s signed certificate of
release “expressly consents to a search of his person or residence
as a condition of his parole”), rev’d on other grounds, 394
N.Y.S.2d 230 (2d Dep’t 1977)).
c.
The Law Is Not Clearly Established, After
Samson, on the Degree of Suspicion Required to
Conduct a Warrantless Parole Search in New
York
Alternatively, the Court finds that Cashman and the RPD
Defendants are entitled to qualified immunity because, following
the Supreme Court’s 2006 decision in Samson, supra, it is not
clearly established that some particularized suspicion is required
before searching a parolee or his residence. The California statute
at issue in Samson required parolees to “agree in writing to be
subject to search or seizure by a parole officer or other peace
officer at any time of the day or night, with or without a search
warrant and with or without cause.” CAL. PENAL CODE ANN. § 3067(a)
(2000)
(emphasis
supplied).
New
York’s
certificate
of
parole
release, on the other hand, requires a parolee to agree to “search
and inspection of his person, residence and property,” N.Y. COMP.
-35-
CODES R. & REGS. tit. 9, § 8003.2(d), but it does not clearly and
unambiguously require parolees to waive a suspicionless searches.
In Samson, the California parolee’s acceptance of a “clear and
unambiguous” suspicionless-search provision was critical to the
Supreme
Court’s
holding
that
the
parolee
“did
not
have
an
expectation of privacy that society would recognize as legitimate.”
Samson, 547 U.S. at 852 (citation omitted). “Neither the Supreme
Court nor the Second Circuit has ever approved the search of
parolee’s residence absent reasonable suspicion or a clear and
unambiguous waiver of suspicionless searches.” Black v. Petitinato,
No. 16CV2320BMCRLM, 2018 WL 1115692, at *4 (E.D.N.Y. Feb. 27,
2018).
Since Samson, however, “[c]ourts disagree as to whether or not
the relevant parole regulation in New York is similar to the
California statute at issue in Samson, and thus there is no
consensus on whether or not Samson applies to cases involving
New York parolees.” United States v. White, 622 F. Supp.2d 34, 41
(S.D.N.Y. 2008) (collecting cases); accord Black, 2018 WL 1115692,
at *5 (stating that “[n]on-precedential Second Circuit decisions
since Samson have hinted in both directions” (collecting cases));
see also United States v. Chirino, 483 F.3d 141, 150 (2d Cir. 2007)
(concurring opn.) (stating that propriety of suspicionless searches
of probationers, who generally have greater expectations of privacy
than parolees, is an open question in the Second Circuit after
-36-
Samson). Thus, even assuming that the information possessed by
Cashman
was
inconsistent
with
reasonable
suspicion,
this
“uncertainty in the caselaw means that a reasonable parole officer
conducting the search at issue here without reasonable suspicion
would
not
unlawful.”
necessarily
have
Black,
WL
2018
Templeton, 505 F.3d 161,
understood
1115692,
[his]
at
*5
actions
(citing
to
be
Higazy
v.
169 (2d Cir. 2007)). Because “[i]t is
unclear whether the Second Circuit’s decisions are consistent with
the Supreme Court’s decision in Samson,” “the right is not ‘clearly
established’ for qualified-immunity purposes.” Id. (citing Reichle
v. Howards, 566 U.S. 658, 667-68 (2012)).
Furthermore, the RPD Defendants are likewise entitled to
qualified immunity. The Second Circuit has held that assistance by
police officers during an otherwise reasonable search by parole
officers does not render the search unreasonable. See Reyes, 283
F.3d at 464 (concluding that the law permits a “coordinated effort”
between federal probation officers and police officers to visit a
defendant
on
supervised
release
and
search
the
releasee’s
neighbor’s house, respectively, “as long as the probation officers
are pursuing legitimate probation-related objectives”); Newton, 369
F.3d at 667 (“[W]e reiterate Reyes’s rejection of stalking horse
challenges and conclude that police presence . . . did not render
the
warrantless
reasonable
police
search
constitutionally
officer
in
this
-37-
unreasonable.”).
situation
would
not
“A
have
understood the parole officer’s actions to be unlawful, and, under
Second Circuit precedent, the police officers were entitled to
assist with a lawful parole search.” Black, 2018 WL 1115692, at
*5–6.
d.
The Law Was Not Clearly Established That
Plaintiffs’ Consent Was Necessary Prior to
Conducting the Parole Search
As noted above, Quincy’s consent to the parole search was
obtained by means of his signed certificate of release agreeing to
certain conditions. In addition, there is no indication from his
deposition testimony that he raised any objection to the search.
Plaintiffs argue, however, that Cashman and the RPD Defendants were
required to obtain their personal consent to conduct a warrantless
search. In essence, they argue that Georgia v. Randolph, supra, coresident
consent
exception
should
apply
in
the
context
of
individuals who co-reside or co-habit with parolees.
In Randolph, the Supreme Court addressed a situation where
police officers had entered a home, over respondent Randolph’s
objection, based upon the consent of his wife. In finding the
wife’s consent invalid as to Randolph, the Supreme Court reasoned
that “[s]ince the co-tenant wishing to open the door to a third
party has no recognized authority in law or social practice to
prevail
over
a
present
and
objecting
tenant,
his
disputed
invitation, without more, gives a police officer no better claim to
reasonableness in entering than the officer would have in the
-38-
absence of any consent at all.” Randolph, 547 U.S. at 114. The
Supreme Court held that “a physically present co-occupant’s stated
refusal to permit entry prevails, rendering the warrantless search
unreasonable
and
invalid
as
to
him.”
Id.
at
106
(emphases
supplied). A party—whether possessing actual authority or apparent
authority—cannot authorize a search as to a physically present and
objecting tenant. Randolph, 547 U.S. at 120.
The courts to have considered the import of Randolph in the
context of individuals who co-habit or reside with a parolee or
probationer
have
reached
differing
conclusions.
See
Frego
v.
Kelsick, 690 F. App’x 706, 708-09 (2d Cir. 2017) (unpublished
opn.); Sharp v. County of Orange, 871 F.3d 901, 918-19 (9th Cir.
2017); Smith v. City of Santa Clara, 876 F.3d 987, 994 (9th Cir.
2017), aff’g Smith v. City of Santa Clara, No. 5:11-CV-03999-LHK,
2013 WL 164191 (N.D. Cal. Jan. 15, 2013); Barajas v. City of
Rohnert Park, 159 F. Supp.3d 1016, 1031-32 (N.D. Cal. 2016);
Thornton v. Lund, 538 F. Supp.2d 1053, 1058 (E.D. Wisc. 2008);
Lipford v. City of Chicago, No. 15-cv-6988, 2018 WL 3474534, at *5
(N.D. Ill. July 19, 2018); Taylor v. Brontoli, No. 1:04-CV-0487
GLS/DRH, 2007 WL 1359713, at *2 (N.D.N.Y. May 8, 2007). The Smith
panel upheld the district court’s dismissal of the plaintiff’s
Section 1983 claims on qualified immunity grounds, reasoning that
it was not clearly established that Randolph created an exception
-39-
to the probation-search rule. Id. at 990.9 The plaintiff in Smith
was the mother of a probationer whom the police believed was
involved in a crime. The police came to the mother’s house, which
the probationer had indicated was her residence on various items of
official paperwork, and executed a warrantless search. The district
court acknowledged that, with regard to the plaintiff’s refusal to
consent to the search, by the time of the incident in 2010,
the Supreme Court had decided Georgia v. Randolph, 547
U.S. 103 . . . , which established that where two
residents are both present and one consents while the
other objects to the search, the objection trumps the
consent. However, it was not clear at the time—and
indeed, is still unclear—whether this rule applies to a
probation search. Indeed, [c]ourts have explained again
and again that probation and parole are special
situations with needs that differ from other types of
situations. Thus, officers would be reasonable to believe
that a rule that applies to searches generally does not
apply the same way to probation searches. At the very
least, the Randolph rule is in tension with the rule
allowing probation searches on a finding of probable
cause that the target lives at the address. It was thus
not clearly established that [the p]laintiff’s refusal
could or should trump the consent included as a condition
of [her daughter]’s probation. Because it was not clearly
established that the Randolph rule would apply in such a
situation, the officers are immune from suit on this
issue.
Smith, 2013 WL 164191, at *8 (internal citation omitted); see also
Barajas, 159 F. Supp.3d at 1033-34 (finding that Randolph applied,
9
In upholding the jury verdict in the defendants’ favor on the plaintiff’s
California state-law civil rights claims, to which qualified immunity did not
apply, the Ninth Circuit observed that under the Supreme Court’s caselaw,
probation (and parole) searches are analyzed differently than consent searches,
and therefore “Randolph, which creates an exception to the consent rule, is not
directly applicable.” Smith, 876 F.3d at 994.
-40-
but granting summary judgment in defendants’ favor; homeowners’
right to not have police conduct probation search of their home
over their objections while probationer resided with them was not
clearly established at time of the search, and therefore, police
officers were entitled to qualified immunity in § 1983 action
alleging that search over their objections violated the Fourth
Amendment); Lipford, 2018 WL 3474534, at *5 (“[T]he law remains
unsettled (and thus could not have been settled in 2013) on the
question of
exactly
how
living
with
a
probationer
affects
a
non-probationer’s expectation of privacy; some courts have found a
reduced expectation of privacy for people who know about their
roommate’s probation conditions. . . . Given the unsettled state of
the law on this issue, [the plaintiff] could not show that his
right to be free from entries to his home based upon reasonable
suspicion of a probation violation by his [probationer] roommate—if
such a right exists—was clearly established in September 2013.”);
Taylor, 2007 WL 1359713, at *1 n. 4 (refusing to extend Randolph
where “it [wa]s undisputed that [the non-consenting co-inhabitant]
was aware that [the other co-inhabitant] was on probation and that
her trailer was subject to searches”).
Although,
under
the
Supreme
Court’s
qualified
immunity
precedent, the Court has the authority to decide the underlying
constitutional question of whether the Fourth Amendment permits a
parole search where another resident of the house is present and
-41-
objects, the Court does not believe that now is the time to do so.
Moreover, the Court finds that this case does not present the
appropriate vehicle for developing the law. Accordingly, the Court
finds that Cashman and the RPD Defendants are entitled to qualified
immunity on Plaintiffs’ claim that the refusal to consent by
Richard, as a present and objecting co-tenant, overrides the
consent given by Quincy as a condition of his parole.
V.
Conclusion
For the foregoing reasons, Cashman’s motion for summary
judgment (ECF #64) is granted; the RPD Defendants’ motion for
summary judgment (ECF #66) is granted; and Plaintiffs’ complaint
(ECF #1) is dismissed in its entirety. The Clerk of Court is
directed to close this case.
SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:
August 17, 2018
Rochester, New York.
-42-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?