Opinion
17-CV-8560 (PGG) (KHP)
09-14-2022
WENTWORTH RATTRAY, Plaintiff, v. THE CITY OF NEW YORK et al. Defendants.
HONORABLE PAUL G. GARDEPHE, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION ON MOTION FOR SUMMARY JUDGMENT
KATHARINE H. PARKER UNITED STATES MAGISTRATE JUDGE
In this action, Plaintiff Wentworth Rattray (“Plaintiff”) alleges a Section 1983 unlawful search claim against Officers Jose Cadavid (“Cadavid”) and Alyssa Trigueno (“Trigueno”); a Section 1983 false arrest claim against Cadavid; and Section 1983 failure to intervene claims against Trigueno based on the alleged search and arrest. The claims arise out of an incident on November 5, 2016, when in response to a 911 call from the mother of Plaintiff's child reporting a custody dispute, Cadavid entered and searched Plaintiff's home without a warrant and stayed in the home for about an hour while Trigueno stood in the hallway just outside the apartment's entrance.
Plaintiff's leave to file the Third Amended Complaint was limited to allow only the above-mentioned claims. Rattray v. City of New York, 2020 WL 4014979, at *9 (S.D.N.Y. July 16, 2020).
Before me for a report and recommendation is Defendants' motion for summary judgment at ECF No. 206. For the below reasons, I recommend DENYING the motion as to the unlawful search claim against Cadavid and the related failure to intervene claim against Trigueno, and I recommend GRANTING the motion as to the unlawful search claim against Trigueno, the false arrest claim against Cadavid, and the failure to intervene in the false arrest claim against Trigueno.
FACTUAL ALLEGATIONS
On November 5, 2016, Plaintiff had full custody of his then ten-year-old daughter. (ECF No. 211, Pl. Opp. at 6). At 6:49 p.m. that evening, Ms. Wendy Sandy (“Sandy”), the child's mother, called 911. (ECF No. 216, Def. 56.1 ¶ 16.) According to the 911 Event Chronology Report (“911 Report”), Sandy stated Plaintiff was refusing to give her their child, that she was in front of Plaintiff's home, and that there were “no weapons” and “no injuries” involved. (ECF No. 207-6.) The 911 Report states Sandy was “hysterical crying.” (Id.)
Specifically, the 911 Report states: “FC STS CUSTODIAL DISP W FATHER OF CHILD....FATHER REFUSING TO GIVE BACK....FC HYSTERICAL CRYING....IFO AGRESSORS HOME, AGRESSOR INSIDE 3C ON 3 FLR.....NO WPNS....NO INJS....” (Id.) Cadavid testified at his deposition that, based on his understanding of police abbreviations, this Report can be interpreted to state: “A Female caller hysterical crying. In front of aggressor's home. Aggressor inside 3C on third floor. No weapons, no injuries.” (ECF No. 211-2, Cadavid Tr., 97:7-9.)
Cadavid and Trigueno responded to the 911 call. (Def. 56.1 ¶ 18.) When the officers arrived at Plaintiff's apartment building, Sandy approached them and informed them she was the 911 caller. (Id. ¶ 19). Sandy told the officers that it was her time to pick up the child; that Plaintiff refused to let her see the child; that she had not heard from the child; and that the child was not answering her phone. (Id. ¶ 20.)
It is not clear from the record whether Sandy told the officers that a court order granted her custodial rights to the child at that time.
The parties dispute whether Sandy indicated that she was concerned for the child's safety. Cadavid testified at his deposition that Sandy told him she believed her daughter's life was in danger because Plaintiff used drugs and had drug dealers over. (Id. ¶ 22.) However, in a sworn statement, Sandy denied telling the officers that she was concerned for the child's safety or that Plaintiff is a drug user, and she stated she would “never” say that because “that's not the truth.” (ECF No. 211-1, Sandy Decl., 24:11-25:17.) Both officers testified at their depositions that they were concerned for the child's safety based on the information relayed to them by Sandy. (ECF 207-4, Trigueno Tr., 112:12-22; Cadavid Tr., 9:25-10:23.) The officers then proceeded upstairs to Plaintiff's apartment. (Def. 56.1 ¶ 23).
“Sandy Decl.” refers to the deposition testimony provided by Sandy on October 26, 2021. Defendants object to the use of this testimony for purposes of the summary judgment motion because Sandy was not placed under oath during the deposition and did not sign a notarized attestation as to the accuracy of the statements. However, as noted in the Court's order at ECF No. 220, Sandy's testimony amounts to a declaration made under the penalty of perjury, which has the same evidentiary weight as an affidavit, and which can be considered in connection with a motion for summary judgment. 28 U.S.C. § 1746; see also Williams v. Elzy, 2003 WL 22208349, *5 (S.D.N.Y. Sept. 23, 2003). Defendants' argument that Sandy allegedly only agreed to be deposed out of fear that Plaintiff would interfere with her visitation rights does not impact the admissibility of the testimony.
The Officers arrived at Plaintiff's apartment at 7:01 p.m., knocked on the door, announced themselves as police officers, stated they wanted to talk to Plaintiff, and asked Plaintiff to open the door. (Id. ¶¶ 28-29.) Plaintiff did not immediately open the door and informed the officers he could hear them fine. (Id. ¶¶ 30-31, 33.) Cadavid informed Plaintiff that if he did not open the door, Cadavid might take it down, at which point Plaintiff opened the door. (Id. ¶¶ 36-37.) The officers informed Plaintiff they needed to see the child, and Plaintiff stated that the child lived with him but was not home. (Id. ¶ 42.) The officers instructed Plaintiff to tell the child to come to the door. (Id. ¶ 43.) Plaintiff responded, “No, I already told you she's not here.” (Id. ¶ 44.)
Defendants assert that the officers asked Plaintiff the exact location of the child at this time, and that Plaintiff refused to provide it, (Id. ¶ 49), but Plaintiff asserts, and testified at his deposition, that the officers did not ask for the child's exact location at this time, and that when they later asked, he immediately disclosed that the child was at a friend's house, (ECF No. 207-5, Rattray Tr., 58:24-59:10).
Trigueno then demanded that Plaintiff present proof he had custody of the child, or he would go to jail. (Rattray Tr. 50:21-51:4). Plaintiff stated that he was “done talking” and attempted to close the front door, but Cadavid blocked the door with his foot. (Def. 56.1 ¶¶ 50-51.) Cadavid then forcibly entered Plaintiff's home, walked through the apartment looking for the child, and found the child was not there. (Id. ¶¶ 52, 56-57.) The walkthrough search lasted somewhere between one to fifteen minutes. (Pl. 56.1 ¶ 56.) Trigueno remained just outside of the apartment on Plaintiff's doormat. (Id. ¶ 54.)
Following the walkthrough of the apartment and after determining the child was not at home, Cadavid remained in the apartment and continued to ask Plaintiff questions. (Def. 56.1 ¶¶ 59-62.) Cadavid asked where exactly the child was located, and Plaintiff responded that the child was on a playdate with friends. (Rattray Tr. 58:24-59:10; Def. 56.1 ¶ 63.) When Defendants asked which friend the child was with, Plaintiff asked why the officers needed to know this information and insisted the child was “safe” and was “where she's supposed to be.” (Def. 56.1 ¶¶ 62, 64.) Plaintiff then asked Cadavid to “get the eff out” of his apartment, but Cadavid did not leave the apartment. (Id. ¶ 62.)
Defendants allege that at this time, Cadavid called a supervisor to assist him in the investigation into the child's whereabouts, (Def. 56.1 ¶ 58), but Plaintiff alleges that Cadavid did not call a supervisor until after Plaintiff called 911 to report the illegal search (Pl. 56.1 ¶ 58). The evidence in the record is not definitive on this point.
After Plaintiff asked Cadavid to leave the apartment and Cadavid refused to do so, Plaintiff then asked Cadavid if Plaintiff could retrieve his cellphone and Cadavid said, “Yeah. Go ahead.” (Id. ¶ 65.) At 7:12 p.m., Plaintiff called 911 from his cellphone and reported that two officers were illegally searching his home, and that he had asked them to leave but they refused to do so. (Id. ¶ 67; Pl. 56.1 ¶ 67; Pl. Opp. 10.) Either at this point or earlier during the incident, Cadavid also called his supervisor to request assistance. Plaintiff remained on the line with the 911 operator until a supervisor arrived at 8:15 p.m. (Def. 56.1 ¶ 69.) Cadavid remained in Plaintiff's home during this time awaiting the arrival of a supervisor. (Id. ¶ 71.) Plaintiff testified at his deposition that while he was waiting for the supervisor to arrive, he asked Cadavid if Plaintiff could leave the apartment, and Cadavid responded, “No. You got downtown involved. You gotta stay.” (Rattray Tr. 89:18-21.) Cadavid testified at his deposition that he believed Plaintiff was in fact not permitted to leave the apartment at that time. (Cadavid Tr. 47:3-4.) The officers never attempted to place Plaintiff in handcuffs and never told Plaintiff he was under arrest, or that he would be charged with a crime. (Def. 56.1 ¶¶ 79-82.)
At approximately 8:15 p.m. that evening, the officers' supervisor, Lieutenant Koch (“Koch”), arrived at Plaintiff's apartment. (Id. ¶¶ 71-72; Pl. Opp. at 10.) Plaintiff informed Koch about the details of the custody arrangement and the whereabouts of the child. (Def. 56.1 ¶¶ 73-74.) Koch asked whether Plaintiff had documents or emails confirming that he had custody of the child, and Plaintiff explained that the court order was not yet available and showed Koch email communications with the Family Court and Sandy regarding the visitation agreement. (Pl. 56.1 ¶ 73.) Other than showing Koch the email communications, Plaintiff asserts that he did not share any information with Koch that he had not already provided to Cadavid, and Koch did not conduct any investigation to verify the whereabouts of the child other than asking Plaintiff where the child was located. (Pl. 56.1 ¶¶ 74-75; Pl. Opp. 9, 13.) The officers then left Plaintiff's apartment. (Id. ¶ 75.)
LEGAL STANDARDS
“Summary judgment is warranted if ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005) (quoting Fed.R.Civ.P. 56(c)). A fact is “material” if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The court must “construe the evidence in the light most favorable to the nonmoving party, drawing all inferences in that party's favor.” Id. (citation omitted). However, a mere “scintilla of evidence” in support of the nonmoving party's position is insufficient to defeat summary judgment; rather, “there must be evidence on which the jury could reasonably find” for the nonmoving party. Id. (citation omitted).
When the movant properly supports its motion with evidentiary materials, the opposing party must establish a genuine issue of fact by citing to particular parts of materials in the record. Weyant v. Phia Grp. LLC, 556 F.Supp.3d 310, 316 (S.D.N.Y. 2021) (citing Fed.R.Civ.P. 56(c)(1)(A)). Such materials can include, inter alia, depositions, documents, affidavits, declarations, or admissions. Berbick v. Gonzalez, 2013 WL 4507065, at *2 (S.D.N.Y. Aug. 14, 2013) (citing Fed.R.Civ.P. 56(c)(1)).
A defendant is entitled to summary judgment on qualified immunity grounds if he adduces sufficient facts such that no reasonable jury, drawing all inferences in favor of the plaintiff, could conclude that it was objectively unreasonable for the defendant to believe his actions did not clearly violate an established federally protected right. Hartline v. Gallo, 546 F.3d 95 (2d Cir. 2008) (citation omitted). Qualified immunity should be decided by the court as a matter of law when facts are undisputed. Warren v. Dwyer, 906 F.2d 70, 76 (2d Cir. 1990), cert. denied, 498 U.S. 967 (1990).
APPLICATION
1. Unlawful Search Claim against Officer Cadavid
It is undisputed that Cadavid entered and searched Plaintiff's home without a warrant. Plaintiff argues that this search was unlawful, and Defendants argue that exigent circumstances justified the search.
The Fourth Amendment protects individuals and their homes against unreasonable searches and seizures. U.S. Const. Amend. IV. It is a “basic principle” that a search inside a home without a warrant is presumptively unreasonable. Payton v. New York, 445 U.S. 573, 586 (1980). To be reasonable under the Fourth Amendment, a warrantless search of a home must meet an exception to the warrant requirement. Anthony v. City of New York, 339 F.3d 129, 135 (2d Cir. 2003). One such exception is the presence of “probable cause plus exigent circumstances.” Harris v. O'Hare, 770 F.3d 224, 231-32 (2d Cir. 2014), as amended (Nov. 24, 2014) (citing Kirk v. Louisiana, 536 U.S. 635, 638 (2002)). Exigent circumstances exist when there is an “urgent need to render aid,” United States v. MacDonald, 916 F.2d 766, 769 (2d Cir. 1990) (quotations omitted), because someone is “in distress,” Tierney v. Davidson, 133 F.3d 189, 196 (2d Cir. 1998) (quotations omitted), or “injured” or threatened with “imminent injury,” Brigham City, Utah v. Stuart, 547 U.S. 398, 403 (2006) (citations omitted).
“[T]he police bear a heavy burden when attempting to demonstrate an urgent need.” Welsh v. Wisconsin, 466 U.S. 740, 749-50 (1984). They must demonstrate that their conduct was “objectively reasonable.” Stuart, 547 U.S. at 401, 404. The officers' “subjective motivation is irrelevant.” Id. Even in the context of a child's safety, the “mere ‘possibility' of danger” does not “make it objectively reasonable to believe that the circumstances [are] exigent.” Hurlman v. Rice, 927 F.2d 74, 81 (2d Cir. 1991) (finding it was not objectively reasonable for state troopers to enter home without a warrant to retrieve a child, even though an individual residing in the home had previously been convicted of child endangerment); see also Caruso v. Forslund, 47 F.3d 27, 33 (2d Cir. 1995) (while police “were considering the welfare of a child when they entered the home[,]” that fact “standing alone,” is insufficient to “enable [a] jury to conclude that the search was reasonable”); Rivera ex rel. Rivera v. Leto, 2008 WL 5062103, at *4 (S.D.N.Y. Nov. 25, 2008) (same). Summary judgment for the law enforcement officer is appropriate if “no reasonable jury could conclude other than that exigent circumstances existed sufficient to justify the warrantless entry.” Anthony, 339 F.3d at 135.
In support of their argument that exigent circumstances existed in this case, Defendants point to some undisputed, and some disputed, facts. As to the undisputed facts, Defendants assert that the 911 operator conveyed to the officers that Plaintiff had refused to hand over the child to Sandy and Sandy was crying hysterically, (Def. 56.1 ¶¶ 17-18); that Sandy informed the officers that it was her day to visit the child and that she hadn't heard from the child, (id. ¶ 21); and that Plaintiff was uncooperative with the officers when they went to check on the child because he initially refused to open his door and then attempted to close the door after the officers threatened to arrest him if he did not present proof establishing that he had custody of the child, (id. ¶¶ 30-35, 38, 40-41, 50, 51).
As to the disputed facts, the officers assert that Sandy informed Cadavid that she believed the child's life was in danger because Plaintiff was a drug user and had drug dealers to his apartment (id. ¶ 22) and that when the officers initially asked Plaintiff exactly where the child was, Plaintiff refused to answer (id. ¶ 47). Both assertions are disputed by evidence in the record. In a sworn statement, Sandy denied telling the officers that she was concerned for the child's safety or that Plaintiff is a drug user, and in his sworn deposition testimony, Plaintiff stated that he told the officers the child was at a friend's house as soon as the officers asked the question. As discussed below, the disputed facts are material to determining whether exigent circumstances existed for a search, and thus Defendants cannot rely on them on this motion. Weyant, 556 F.Supp.3d at 316.
When looking at the undisputed facts, Defendants' argument of exigent circumstances thus rests on their belief that it was Sandy's day to visit the child and that Sandy had not heard from the child that day, the child was not answering her phone, and their perception of Plaintiff as being uncooperative. Under Rule 56, the Court must assume at this stage that Defendants were not informed of any concerns regarding, or risks to, the child's safety, and that Plaintiff did not refuse to answer any of Defendants' questions. It is also undisputed that the officers did not observe any signs at Plaintiff's home that the child was there (let alone in need of assistance), and that they were quickly told by Plaintiff that the child was not at home. (Def. 56.1 ¶ 42.) The Court also notes the 911 Report stated that Sandy informed the operator that she was aware of “no weapons” and “no injuries.”
Such circumstances, standing alone, are not “exigent”-it is not objectively reasonable, in responding to a simple custody dispute and a somewhat uncooperative father, to assume there is an urgent need to render aid or a threat of imminent injury. Indeed, “an alleged domestic dispute does not provide an open invitation” for officers to enter a home. Grant v. City of Syracuse, 2017 WL 5564605, at *12 (N.D.N.Y. Nov. 17, 2017) (citing Penree by Penree v. City of Utica, New York, 694 Fed.Appx. 30, 33 (2d Cir. 2017)). Similarly, in the circumstances presented here, an individual's hesitation to speak with the police, without more, is not necessarily sufficient to create exigent circumstances. Loria v. Gorman, 306 F.3d 1271, 1276-77 (2d Cir. 2002) (finding no exigent circumstances justified warrantless entry into the plaintiff's home even though the plaintiff refused to speak with the officer and attempted to close the door on him); see also Mitchell v. Shearrer, 2012 WL 943322, at *4 (E.D. Mo. Mar. 20, 2012), aff'd in relevant part, dismissed in part on other grounds, 729 F.3d 1070 (8th Cir. 2013) (explaining that if an individual is “uncooperative” and displays “an attitude” toward officers, this does “not establish a threat of harm” sufficient to constitute an exigent circumstance). Subjective concern for a child's wellbeing without any objective evidence supporting the concern is also generally not sufficient to establish exigent circumstances, because an “officer's subjective belief as to whether exigent circumstances existed . . . is not relevant.” Rivera, 2008 WL 5062103, at *4, n.4 (citing Stuart, 547 U.S. at 404) (explaining that the court would not consider the officers' subjective concern for children whom they believed were home alone, because subjective belief is not relevant in the Fourth Amendment context).
It is also relevant that Defendants do not allege that they observed any signs that the child was in fact inside the apartment, let alone that she was in danger; for example, Defendants do not allege that they observed that Plaintiff was using drugs or that there were drug dealers in or around the premises, that they observed Plaintiff to be violent or prone to violence, or that they were aware of any allegations that Plaintiff had harmed the child then or in the past. See, e.g. Grant, 2017 WL 5564605, at *12 (finding no exigent circumstances where police responded to 911 call where the 911 dispatcher did not inform the officer about a weapon, imminent violence, or a history of domestic disputes at the address); Kerman v. City of New York, 261 F.3d 229, 234-36 (2d Cir. 2001) (finding an anonymous 911 call was not a sufficient basis to support a belief that exigent circumstances justified an entry where defendants “had no corroborating evidence of the alleged danger”).
To be sure, some of the disputed facts in this case could support the search. For example, if Defendants were in fact informed of a concern for the child's safety, this could support a finding of exigent circumstances. See, e.g. Ray v. Township of Warren, 626 F.3d 170, 172 (3d Cir. 2010) (exigent circumstances existed where, among other things, child's mother explicitly informed officers she was concerned for the child's wellbeing); Shakir v. Stankye, 805 Fed.Appx. 35, 38 (2d Cir. 2020) (officers arresting known child abuser reasonably believed child was inside the home when they were aware the child had been absent from school and where the abuser refused to respond to any questions about the whereabouts of the child). However, a jury must assess the facts to determine whether Cadavid was justified in entering the home to search for the child. Thus, Defendants' motion for summary judgment on this claim should be denied.
Additionally, even if exigent circumstances existed, a warrantless search inside a home “must be strictly circumscribed by the exigencies which justify its initiation.” Tierney, 133 F.3d at 196-97 (citation omitted). Here, it is clear from the record that after Cadavid conducted a walkthrough of the apartment and determined the child was not there, Plaintiff told Cadavid the child was on a playdate and instructed him to leave his apartment, and after Cadavid refused to do so, Plaintiff then called 911 to report the search. (Def. 56.1 ¶¶ 62-67.) Even if Cadavid was justified in conducting a brief search for the child, there are no facts on the record showing that it was reasonable for him to remain in the home after determining the child was not there and learning that the child was on a playdate. Although it may have been reasonable for Defendants to remain at the premises while awaiting the arrival of a supervisor, (Def. Br. 3), they do not allege that any exigent circumstances required Cadavid to remain inside the apartment during this time, or that he could not wait immediately outside the apartment with Trigueno. To the extent Cadavid's continued presence in Plaintiff's home following the initial walkthrough is considered a search, Defendants have not shown as a matter of law that the search was properly circumscribed. For this reason as well, summary judgment should be denied as to this claim.
2. Qualified Immunity for Officer Cadavid on the Unlawful Search Claim
Defendants argue that even if the Court finds exigent circumstances did not exist to justify the warrantless search, Cadavid is nonetheless entitled to summary judgment on this claim under the doctrine of qualified immunity. An officer is entitled to qualified immunity under § 1983 unless (i) the officer violated a federal statutory or constitutional right, and (ii) the unlawfulness of the officer's conduct was “clearly established at the time.” D.C. v. Wesby, 138 S.Ct. 577, 589 (2018) (citing Reichle v. Howards, 566 U.S. 658, 664 (2012)). A court need not determine whether a defendant violated a plaintiff's rights if it decides that the right was not clearly established. Liberian Cmty. Ass'n of Connecticut v. Lamont, 970 F.3d 174, 186 (2d Cir. 2020) (citing Pearson v. Callahan, 555 U.S. 223, 236 (2009)). This demanding standard protects “all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).
In considering whether the law is “clearly established,” the Court must consider whether the “rule's contours” are “so well defined” that it would be clear to a reasonable officer that the conduct in question was unlawful in the situation the officer confronted. D.C., 138 S.Ct. at 590 (quotation marks and citation omitted). “This requires a high degree of specificity.” Id. (quotation marks and citation omitted). Accordingly, while there does not need to be “a case directly on point,” “existing precedent must place the lawfulness” of the behavior “beyond debate.” Id. (citation omitted). The rule must be “dictated by ‘controlling authority' or a ‘robust ‘consensus of cases of persuasive authority.''” Id. at 589-90 (citation omitted).
Accordingly, the Court begins the qualified immunity analysis by defining the precise circumstances presented to the officers. As discussed above, at this summary judgment stage, the undisputed facts are that the officers were responding to a reported custody dispute in which the child's mother was crying and reported that she had not heard from the child that day, but also reported “no injuries,” “no weapons,” and no concern as to the child's safety; the responding officers, upon knocking on the father's front door, were met with a somewhat uncooperative individual who did not immediately open his door, but who nonetheless quickly informed the officers that the child was not at home; and the officers observed no indication that the child was home or in need of assistance.
As the Court described above, such circumstances do not amount to exigent circumstances under applicable case law, and it would not be reasonable for an officer in this precise situation to enter the home without a warrant. Moreover, numerous binding and authoritative cases confirm that it was clearly established at the time that a warrantless entry on the undisputed facts listed above would amount to a violation of a plaintiff's rights.
As an initial matter, it is a “basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable.” Groh v. Ramirez, 540 U.S. 551, 559 (2004) (quotation marks and citation omitted). Ample Supreme Court and Second Circuit case law establish that “probable cause plus exigent circumstances” constitutes an exception to the warrant requirement and define the contours of what constitutes exigent circumstances. Loria, 306 F.3d at 1283 (2d Cir. 2002) (collecting cases); see also Rivera, 2008 WL 5062103, at *7 (finding the law regarding exigent circumstances in the context of warrantless entry “clearly established” in light of “numerous and consistent Second Circuit decisions”). Specifically, the case law is clear that exigent circumstances in the context of a home entry are “rare[],” Stanton v. Sims, 571 U.S. at 8 (2013), and exist only in those situations where there is “clear factual evidence showing an urgent need to render assistance,” Rivera, 2008 WL 5062103, at *5 (collecting cases); see also Hurlman, 927 F.2d at 77 (explaining that there needs to be evidence supporting the officers' knowledge that an emergency exists, and the “mere possibility” of danger is not sufficient).
Numerous Second Circuit cases pre-dating the incident at bar have established that where, like here (at least for purposes of this summary judgment motion), police have a subjective concern for the wellbeing of a child but lack objective evidence that the child needs immediate assistance, exigent circumstances do not exist. For example, in 1991, the Second Circuit held in Hurlman that exigent circumstances did not exist to permit officers' warrantless entry into a home to retrieve a four-year-old child even though the child was residing with an individual convicted of endangering the welfare of a child. 927 F.2d at 77. The Court explained that the evidence suggested a lack of knowledge regarding whether on the night in question any threat to the child “was imminent or of emergency proportions.” Id. at 81.
Similarly, in 1995, the Second Circuit held in Caruso that exigent circumstances did not justify defendants' warrantless entry into the plaintiff's home to search for a child that had been reported as abducted and missing. 47 F.3d at 33. After a jury found for the plaintiff, Defendants moved for judgment as a matter of law, and the court denied the motion, explaining that the fact that the defendants were considering the child's welfare when they entered the home, absent evidence suggesting an imminent threat to the child, did not enable the jury to conclude that the search was reasonable. Id. at 30-33.
More recently, the Second Circuit found exigent circumstances did not exist to justify a warrantless entry where the officers were responding to a domestic violence incident and where the officers “could see that the children were not in danger or in need of aid.” Penree, 694 Fed. App'x at 33. The Court denied qualified immunity to the officer, explaining that the “law prohibiting warrantless entry into a home without exigent circumstances was and continues to be clearly established.” Id. (emphasis added).
Although none of these cases contains the exact factual circumstances that were present here, they all involve a situation where, like here, the officers had some generalized concern for the wellbeing of a child but lacked objective evidence supporting a belief that danger to the child was imminent. These cases show that it was clearly established that a warrantless entry into Plaintiff's home under the circumstances facing the officers (considering only the undisputed facts and drawing inferences in favor of Plaintiff), was unlawful. Of course, a different finding may be warranted if the jury, considering the record as a whole, finds that the facts confronting the officers were different from the limited set of undisputed facts the Court considers at this stage.
Defendants point to three warrantless search cases for the proposition that reasonable officers in the Defendants' situation could disagree as to whether exigent circumstances existed. All three cases are distinguishable and are not contrary to the above analysis. The cases are Ray, 626 F.3d at 172; Howard v. Town of Dewitt, 2015 WL 2381334 (N.D.N.Y. May 19, 2015); and Hunsberger v. Wood, 570 F.3d 546 (4th Cir. 2009). Ray and Howard also involved custody disputes, but in those cases, facts on the record not present here reasonably led the officers to believe a child inside the house might be in danger. See Ray, 626 F.3d at 172-77 (plaintiff entirely failed to respond to the officer's repeated knocking, despite previously always responding and turning over the child after police arrived on the scene); Howard, 2015 WL 2381334, at *1-4 (plaintiff refused to answer door for over 20 minutes, and eventually acknowledged the child was in fact home but refused to allow the officers to see the child, and made an odd remark that nobody was “bleeding”). Moreover, and significantly, in Ray, the officers received authorization from a municipal court judge to enter the home, 626 F.3d at 172, and in Howard, the officers were in fact denied summary judgment on the warrantless search claim, and only at trial did a jury find for the defendants, 2015 WL 2381334, at *2. Defendants' third case, Hunsberger, involves entirely different facts concerning a reported break-in, where the circumstances confronted by the officers suggested that the home “was being vandalized and that a missing teenage girl was in the house and in need of assistance.” 570 F.3d at 549-50.
Having concluded that the law regarding exigent circumstances to enter a home in similar circumstances was “clearly established,” the Court next considers whether Defendants' actions were objectively reasonable. See Rodriguez v. City of New York, 2022 WL 3587598, at *8 (S.D.N.Y. Aug. 22, 2022). In resolving this issue, the Court must consider the information Defendants possessed at the time of the act in question and the reasonable beliefs they might have had based on that information, even if those beliefs were mistaken. Moore v. Vega, 371 F.3d 110, 116-17 (2d Cir. 2004). If there are facts in dispute that are material to a determination of reasonableness, summary judgment on qualified immunity grounds is not appropriate. Kerman, 261 F.3d at 240.
As discussed above, there are material facts in dispute as to what information Cadavid possessed at the time he entered and searched Plaintiff's home that bear on the issue of whether there were exigent circumstances to search. In fact, the same factual disputes that make summary judgment on the merits improper in this case preclude summary judgment on qualified immunity grounds. See, e.g. Schoolcraft v. City of New York, 103 F.Supp.3d 465, 503 (S.D.N.Y.), on reconsideration in part, 133 F.Supp.3d 563 (S.D.N.Y. 2015) (explaining that the same issues of material fact that prevented the court from granting summary judgment to defendants on the merits applied equally to defendants' qualified immunity defense); Tirado v. Shutt, 2015 WL 774982, at *18 (S.D.N.Y. Feb. 23, 2015), report and recommendation adopted in relevant part, 2015 WL 4476027 (S.D.N.Y. July 22, 2015) (same).
Specifically, as discussed above, the parties dispute whether Defendants were provided sufficient information indicating that there might be an imminent threat of harm to the child. These factual disputes bear upon whether it was reasonable for the officers to believe they were acting lawfully and thus they must be resolved by a jury. See Kaminsky v. Rosenblum, 929 F.2d 922, 927 (2d Cir. 1991) (where objective reasonableness of officers' action depends upon disputed facts, district court properly denied summary judgment); Brawer v. Carter, 937 F. Supp. 1071, 1082 (S.D.N.Y. 1996) (declining to grant summary judgment on issue of qualified immunity where the parties disagreed on the facts known to the arresting officers at the time). At this stage, making all inferences in favor of Plaintiff, the Court cannot conclude that it was objectively reasonable for Cadavid to think that exigent circumstances existed to justify his warrantless search of Plaintiff's apartment. See Loria, 306 F.3d at 1287 (denying summary judgment on qualified immunity grounds where officers entered home without a warrant based on plaintiff's noise violation and his refusal to speak with or cooperate with officers, and finding that “no reasonable officer could have found that exigent circumstances were present” given that there was no threat of violence).
Accordingly, summary judgment on qualified immunity grounds is not warranted for Cadavid on the unlawful search claim.
3. Unlawful Search Claim against Officer Trigueno.
Summary judgment should be granted in favor of Defendants as to the unlawful search claim against Trigueno because it is undisputed that she did not cross the threshold into Plaintiff's apartment. (Pl. Opp. at 8, 12.)
It is well established that “the common halls” of apartment buildings “are not within an individual tenant's zone of privacy.” United States v. Holland, 755 F.2d 253, 255 (2d Cir. 1985); see also United States v. Pena Ontiveros, 547 F.Supp.2d 323, 334-35 (S.D.N.Y. 2008), aff'd sub nom. United States v. Rico Beltran, 409 Fed.Appx. 441 (2d Cir. 2011) (no unlawful search occurred when agent approached the residence but did not enter the residence). Because Trigueno never crossed the threshold into Plaintiff's apartment or searched the apartment, she did not commit an unlawful search.
4. Failure to Intervene in Unlawful Search Claim against Officer Trigueno
Plaintiff argues that Trigueno unlawfully failed to intervene in Cadavid's search because she stood outside the apartment and watched while Cadavid conducted the search. “[A]ll law enforcement officials have an affirmative duty to intervene to protect the constitutional rights of citizens from infringement” by other officers in their presence. Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994). An officer who “observes or has reason to know that [a] constitutional violation has been committed by a law enforcement official” is liable for failing to intervene and preventing the harm, provided there was “a realistic opportunity” to do so. Id. Defendants argue that if an illegal search occurred, Trigueno “had no realistic opportunity to intervene.” (ECF No. 207, Def. Br. at 20.)
As discussed above, depending on how a jury determines the disputed material facts, it could find that no exigent circumstances existed and that Cadavid's search was unlawful. There is no evidence that Trigueno had information about the safety of the child that differed from that possessed by Cadavid. Moreover, it is undisputed that Trigueno remained just outside Plaintiff's apartment while the search occurred, and accordingly a reasonable jury could find that Trigueno saw the search take place or knew it was taking place. Thus, the same material factual disputes that preclude summary judgment on the unlawful search claim against Cadavid preclude summary judgment on the failure to intervene in the search claim against Trigueno.
Defendants argue that Trigueno did not have the time to intervene because the search was “a rapidly occurring event.” (Def. Br. at 21.) However, Cadavid testified that it took him about ten to fifteen minutes to conduct the initial active search of Plaintiff's home. (Cadavid Tr. 26:15.) Cadavid then remained in the home for approximately an hour. (Pl. Opp. at 14.) Even considering just the active search for the child, and even assuming it took Cadavid only a few minutes, or even seconds, to complete this search, a jury still could reasonably conclude that Trigueno could have intervened. See Figueroa v. Mazza, 825 F.3d 89, 108 (2d Cir. 2016) (concluding that even if the unlawful action lasted “less than twenty seconds,” it was legal error for the district court to conclude that the defendants did not have sufficient time to intervene); Buchy v. City of White Plains, 2015 WL 8207492, at *4 (S.D.N.Y. Dec. 7, 2015) (denying summary judgment on claim for failure to intervene where unlawful police action lasted “two minutes”). Thus, whether there was in fact time to intervene must be submitted to the jury.
Additionally, for the same reasons that the Court cannot conclude at this stage that Cadavid is entitled to qualified immunity for the underlying unlawful search claim, the Court similarly cannot conclude that Trigueno is entitled to qualified immunity for failing to intervene in the search. See, e.g. Glover v. City of New York, 2018 WL 4906253, at *33 (E.D.N.Y. Oct. 9, 2018) (Defendants were not entitled to qualified immunity for failure to intervene in plaintiff's false arrest for the same reason qualified immunity was not appropriate for the underlying claim). As discussed above, the law regarding warrantless searches is clearly established. Similarly, the law regarding the duty to intervene is “well settled” in this Circuit. Bolden v. Vill. of Monticello, 344 F.Supp.2d 407, 421 (S.D.N.Y. 2004) (citing Ricciuti v. New York City Transit Auth., 124 F.3d 123, 129 (2d Cir. 1997)); see also Bugman v. City of Tonawanda, New York, 2022 WL 3699407, at *8 (W.D.N.Y. Aug. 26, 2022) (denying qualified immunity to officers on plaintiff's claim the officers failed to intervene in an illegal search.) This issue can only be determined through a jury trial.
Accordingly, summary judgment should be denied as to the claim that Trigueno failed to intervene in the alleged unlawful search.
5. False Arrest Claim against Officer Cadavid, and Failure to Intervene in False Arrest Claim against Officer Trigueno
It is undisputed that after Cadavid searched Plaintiff's home and determined that the child was not present, he remained in the home for approximately an hour and asked Plaintiff questions, despite Plaintiff's request for Cadavid to leave. (Def. 56.1 ¶¶ 56-59, 62, 71.) There is evidence in the record that Cadavid told Plaintiff that Plaintiff was not free to leave the apartment during this time. (Pl. Opp. at 18.) It is also undisputed that during this time, Cadavid permitted Plaintiff to use his cellphone; that Plaintiff called 911 and reported the search; that the Defendants were waiting for a supervisor; that Trigueno remained just outside Plaintiff's apartment; and that the officers never told Plaintiff he was under arrest, never placed him in handcuffs, and never drew their weapons. (Def. 56.1 ¶¶ 54, 65, 80-82.) Plaintiff asserts that Cadavid's remaining in his home for approximately an hour following the search, at first asking Plaintiff questions, and then awaiting his supervisor's arrival, constituted an unlawful arrest in violation of the Fourth Amendment, because Plaintiff was effectively confined to his home during this period and believed he was not free to leave. (Pl. Opp. at 21.) Defendants argue Plaintiff was never formally arrested, and therefore was not falsely arrested.
To state a claim for false arrest under § 1983, a plaintiff need not show that he was “formally” arrested. Posr v. Doherty, 944 F.2d 91, 100 (2d Cir. 1991). Rather, a plaintiff must show that he was “seized” for purposes of the Fourth Amendment and that the seizure was sufficiently intrusive to constitute an arrest. Id. A person is “seized” when an officer “even briefly” restrains the person's “right to walk away.” United States v. Moreno, 897 F.2d 26, 30 (2d Cir.), cert. denied, 497 U.S. 1009 (1990). A seizure constitutes a false arrest when the officers acted with an “unreasonable level of intrusion given the totality of the circumstances.” Posr, 944 F.2d at 99; see also United States v. Tehrani, 49 F.3d 54, 61 (2d Cir.1995) (explaining an investigative stop may become an arrest if the means of detention are “more intrusive than necessary”).
In United States v. Parea, the Second Circuit set forth several factors to consider in assessing whether the level of intrusion was unreasonable, including: the amount of force used by police and the need for such force; the extent to which the plaintiff's freedom of movement was restrained; the number of agents involved; whether the plaintiff was suspected of being armed; the duration of the stop; and the physical treatment of the plaintiff. 986 F.2d 633, 645 (2d Cir. 1993) (citations omitted). Courts in this Circuit continue to rely on these factors in assessing whether an effective arrest occurred. See, e.g. Scott v. City of Mount Vernon, 2017 WL 1194490, at *18 (S.D.N.Y. Mar. 30, 2017) (applying the factors to find plaintiffs were effectively arrested when six officers with guns drawn entered their home, rounded them into the living room, and required them to remain there for four hours); Chance v. Cundy, 2004 WL 2009282, at *4 (D. Conn. Sept. 7, 2004) (applying the factors to find no arrest occurred when plaintiff was interviewed at the police station for twenty minutes).
Here, the evidence is not sufficient for a reasonable jury to conclude Plaintiff was “arrested” under the Fourth Amendment. Cadavid's presence in the apartment and his refusal to leave, as well as Cadavid's informing Plaintiff he was not allowed to leave, coupled with Trigueno's presence at the doorway, all support Plaintiff's contention that he reasonably believed his “right to walk away” and leave his apartment was restrained. Moreno, 897 F.2d at 30. However, regardless of whether a seizure was effectuated by this restraint, no reasonable juror could conclude, based on the evidence, that the officers acted with such an unreasonable level of intrusion to amount to an arrest. None of the factors set forth in Parea are seriously implicated here: the police never drew their weapons or used physical force against the Plaintiff; Plaintiff was able to move freely about his apartment and, accordingly, his freedom of movement was not especially restrained; Plaintiff was free to use his phone; Plaintiff was not handcuffed; only two officers were involved in the incident, only one of whom was in the apartment; and the incident lasted approximately one hour, which was about the length of time needed for the supervisor to arrive following calls from both Cadavid and Plaintiff requesting a supervisor's assistance in resolving the situation.
This incident is similar to that in United States v. Faux, 828 F.3d 130, 138 (2d Cir. 2016). There, the Court considered whether the plaintiff was “in custody” such that Miranda warnings were necessary. The test of custody for Miranda purposes is similar to the test for whether a seizure amounts to an arrest; specifically, the court considers whether, under the circumstances, a reasonable person in the plaintiff's position would have thought he was free to leave and whether he would have understood his freedom to have been curtailed to a degree associated with formal arrest. Id. at 135 (citations omitted). In Faux, while FBI agents searched the plaintiff's home pursuant to a search warrant, two agents interrogated the plaintiff at her dining room table for two hours. Id. at 133. The Court held that the plaintiff was not “in custody” during this period because she was in the “familiar surroundings” of her home, she was “not handcuffed,” the agents “did not display their weapons or otherwise threaten or use any physical force;” and her movements were monitored but not restricted. Id. at 137-39.
As in Faux, the circumstances here, even making all inferences in favor of Plaintiff, simply do not amount to an arrest. Cf. United States v. Guzman, 724 F.Supp.2d 434, 445-46 (S.D.N.Y. 2010) (finding individual was arrested when seven law enforcement agents, at least one displaying a firearm, searched his small apartment for two to three hours, during which time he was confined to the living room). I therefore recommend granting summary judgment to Defendants on the false arrest claim.
In any event, the Court is aware of no Supreme Court or Second Circuit holding that an arrest occurred on similar facts. There certainly is no precedent rendering it beyond debate that Cadavid was effectuating an arrest when he stayed in the apartment asking questions and waiting for a supervisor. Thus, Defendants are entitled to qualified immunity on the unlawful arrest claim because it was not clearly established at the time that the officers' actions amounted to an arrest.
Defendants also argue that if their conduct amounted to an arrest, probable cause for the arrest existed. (Def. Br. 17-20). Although the Court need not consider this argument because it finds an arrest did not occur, it is worth noting that while probable cause is typically a complete defense to an action for false arrest, this is not the case where the arrest occurs inside an individual's home. Rather, a warrantless arrest inside the home requires both probable cause and a separate exception to the warrant requirement such as exigent circumstances. Payton, 445 U.S. at 573; see also United States v. Allen, 813 F.3d 76, 78 (2d Cir. 2016) (holding that the warrantless arrest of plaintiff “inside his home . . . in the absence of exigent circumstances violated the Fourth Amendment,” regardless of whether there was probable cause to arrest him). Accordingly, probable cause alone, without exigent circumstances, would be insufficient to justify an arrest in this circumstance. As explained above, given the disputed issues of material fact, a jury would need to determine whether exigent circumstances existed here to justify any arrest in Plaintiff's home.
Because an arrest did not occur, I also recommend granting summary judgment on the failure to intervene claim against Trigueno with respect to the alleged unlawful arrest. See Felix v. City of New York, 408 F.Supp.3d 304, 312 (S.D.N.Y. 2019).
CONCLUSION
For the reasons set forth above, I respectfully recommend that Defendants' motion for summary judgment at ECF No. 206 be DENIED as to the unlawful search claim against Cadavid and the failure to intervene claim against Trigueno based on the unlawful search; and GRANTED as to the unlawful search claim against Trigueno, the false arrest claim against Cadavid, and the failure to intervene in the false arrest claim against Trigueno.
NOTICE
Defendants shall have fourteen days from this date, and Plaintiff shall have seventeen days from this date, to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C) (mail), (D) (leaving with the clerk), or (F) (other means consented to by the parties)).
If Defendants file written objections to this Report and Recommendation, the Plaintiff may respond to Defendants' objections within seventeen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). If Plaintiff files written objections, Defendants may respond to such objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2); see also Fed. R. Civ. P. 6(a), (d).
Objections and responses to objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the Hon. Paul G. Gardephe at 40 Foley Square New York, NY 10007-1312, to the chambers of the undersigned magistrate judge, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any request for an extension of time to file objections must be directed to Judge Gardephe. Failure to file timely objections will result in a waiver of those objections for purposes of appeal. See 28 U.S.C.§ 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).