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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

NICOLE SARNICOLA,
PLAINTIFF
vs
THE COUNTY OF WESTCHESTER, a municipal entity, "JOHN DOES", Westchester County Police Officers, individually and in their official capacities, WESTCHESTER COUNTY POLICE OFFICER BECKLEY, Shield # 189, individually and in his official capacity, WESTCHESTER COUNTY POLICE OFFICER VINNIE ANTONUCCI, individually and in his official capacity, WESTCHESTER COUNTY POLICE OFFICER MARK PIERRO, individually and in his official capacity,
DEFENDANTS

COMPLAINT/JURY TRIAL

I. INTRODUCTION

1. This is an action against the Defendant parties,

individually and collectively, for the violation of the Plaintiff's

federally guaranteed constitutional and civil rights and her rights

as otherwise guaranteed under law.

2. This case arises out of the Plaintiff's arrest and

detention and actions inter-related thereto on April 26, 2001 at or

about 5:45 P.M. in Tarrytown, New York.

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3. The Plaintiff seeks monetary damages for the violation of

the Plaintiff's federal constitutional and civil rights grounded in 'H* false arrest and for false imprisonment and for 'being subjected to
an intrusive body search. The Plaintiff seeks whatever other relief is appropriate and necessary in order to serve the interests of justice and assure that her remedy is full and complete.
II. JURISDICTION 4 • Jurisdiction of this Court is invoked pursuant to and under 28 U.S.C. Sections 1331 and 1343 [3] and [4] in conjunction with the Civil Rights Act of 1871, 42 U.S.C. Section 1983, and the First, Fourth and Fourteenth Amendments to the United States Constitution. 5. The value of the rights in question is in excess of $100,000.00 exclusive of interest and costs. 6. The Plaintiff also invokes the jurisdiction of this Court (| in conjunction with the Declaratory Judgment Act, 28 U.S.C. Sections 2201, et s_ecj_j_, this being an action in which the Plaintiff, while seeking monetary damages, also seeks declaratory and injunctive relief if such is deemed necessary and desirable and in the interest of justice in order to provide the Plaintiff with a full and complete remedy for the violation of her rights. 7. This is an action in which the Plaintiff seeks relief for the violation of her rights as guaranteed under the laws and Constitutions of the United States.
III. PARTIES 8. The Plaintiff, Nicole Sarnicola, is an American citizen and resident of the City of New York, the State of New York, the
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County of Kings. The Plaintiff is twenty six [26] years of age.

,'~j The Plaintiff resides with her mother, Zohira Torres, at 3395

Nostrand Avenue, Apt. # 3E, Brooklyn, New York 11229.

9. The County of Westchester is a municipal entity existing

under the laws and Constitution of the State of New York.

10. Defendants Beckley, Shield # 189, Vinnie Antonucci, Mark

Pierro, and John Does are Westchester County, New York Police

Officers. They are agents and employees of the County of

Westchester, New York. Notwithstanding the wrongful and illegal

nature of their acts and conduct as hereinafter described, they

were taken in and during the course of their duties and functions

as Westchester County Police Officers and under the policies and

practices of the County of Westchester, New York. They are sued

in their official and in their individuals capacities.

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IV. ALLEGATIONS

11. The Plaintiff is Nicole Sarnicola.

12. The Plaintiff resides in the Sheepshead Bay/Marine Park

area of Brooklyn, New York at 3395 Nostrand Avenue, Apt. # 3E,

Brooklyn, New York.

13. The Plaintiff resides at the above address with her

mother, Zohira Torres, who is divorced and has been divorced for

most of the Plaintiff's life. The Plaintiff has resided at the

afore-stated address for most of her life.

14. The Plaintiff is single.

15. The Plaintiff is twenty six years of age. The Plaintiff's

birth date is: 3/9/75.

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16. The Plaintiff attended Fontbonne Hall Academy in Bayridge, Brooklyn, New York. Prior thereto she attended^the Good Shepherd School in Marine Park, New York.
17. The Plaintiff attended St. John's University and graduated therefrom in 1996.
18. Thereafter, the Plaintiff worked as an office manager at the Marine Park Funeral Home for approximately one year [just under one year]. Subsequent thereto, the Plaintiff was employed at Cushman and Wakefield in the capacity as an Executive Administrator. She was employed thereat for approximately two years from September, 1998 through September, 2000. Because of downsizing, the Plaintiff was let go from her position.
19. While attending St. John's University the Plaintiff worked at "Downtown", a clothing store located at Bedford Avenue and Avenue U, in Sheepshead Bay/Marine Park, Brooklyn, New York.
20. The incident giving rise to this litigation commenced on Thursday, April 26, 2001 at or about 5:45 P.M. in Tarrytown, New York.
21. The Plaintiff and her boy friend, Michael Tricardo and their mutual friend, Frank Rossi, had traveled from Michael Tricardo's residence in Brooklyn, New York to Tarrytpwn where the Plaintiff believed that they were going to dinner along with another individual known as "Gabe" [believed to be Gabe Name Redacted
a person whom the Plaintiff did not know. 22. Gabe had been at Michael Tricardo's residence [outside of it] and the Plaintiff, Frank Rossi, and Michael Tricardo had
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followed Gabe, in his vehicle, to Tarrytown.

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23. Upon their arrival in Tarrytown, the Tlaintiff, Michael

Tricardo, and Frank Rossi parked the vehicle, in which they were

traveling and which the Plaintiff was driving, in a lot and the

Plaintiff and Frank Rossi, upon exiting, went to a cafe, about a

block away from the parking area, so that the Plaintiff could go to

the bathroom. The Plaintiff and Frank Rossi left Michael Tricardo

and Gabe, who was in his vehicle, in the parking area.

24. As the Plaintiff and Frank Rossi were returning to the parking area, where they had left Michael Tricardo and Gabe, the Plaintiff and Frank Rossi were stopped by Police Officers, believed to be in the employ of Westchester County. Both the Plaintiff and Frank Rossi had cups of tea [coconut vanilla] and each was directed to place the cups of tea on the sidewalk. The Plaintiff was /"*"] handcuffed. There was an officer present who displayed a gun. The Plaintiff believes that his name was "Ray" [known as Ramon and believed to be Cuban because he later informed the Plaintiff that he was Cuban]. She was asked her name and where she was from. The Plaintiff identified herself and indicated that she was from Brooklyn. The Plaintiff asked why she was being stopped and the Plaintiff was tapped on the shoulder by one of the officers then present and informed by that officers that it was because "today must be your unlucky day, sweetheart".

25. The Plaintiff was transported to a location which is believed to be a law enforcement facility. At that facility, the Plaintiff was placed in a room separate from Frank Rossi and from

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Michael Tricardo whom the Plaintiff saw was then present when she

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entered the facility to which she had been transported.

The

Plaintiff had been transported to the facility separate from Frank

Rossi and from Michael Tricardo whom the Plaintiff did not see

being arrested. The Plaintiff did not see the individual known as

"Gabe" when she first entered the law enforcement facility.

26. The Plaintiff was at that Facility for perhaps ten minutes

when she and Frank Rossi were then taken to a second law

enforcement facility. Michael Tricardo was transported to that

Facility separate from the Plaintiff and Frank Rossi.

27. When Frank Rossi and the Plaintiff entered that second

facility, the Plaintiff heard the facility referred to as "Central

Booking" when the telephone was answered by an Officer Doyle.

28. Frank Rossi and the Plaintiff were first placed in a cell

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and remained handcuffed. Michael Tricardo was brought into the

facility and the Plaintiff was removed from the cell and placed in

a chair and handcuffed to the chair.

29. The Plaintiff could see Frank Rossi and Michael Tricardo.

30. The Plaintiff observed that both Frank Rossi and Michael

Tricardo were taken, separately, from that room to another location

and returned. The Plaintiff learned that each had been strip

searched.

31. The Plaintiff was informed that she would be strip

searched when a female officer was available.

32. At the facility, the Plaintiff was subjected to a strip

search by a female Officer Beckley. Before she was strip searched,

Officer Beckley took into her possession the Plaintiff's jewelry [

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three rings, two pairs of earrings, a watch and an ankle bracelet].

The Plaintiff was made to take off all her outer and under garments

and was forced to bend over.

33. The Plaintiff was returned to a room and placed in a chair

outside of a cell [handcuffed]. The Plaintiff believes that

Michael Tricardo and Frank Rossi were placed in separate cells [one

in a holding cell and one in cell in another room]. The Plaintiff

was then taken into another room and the handcuffs removed.

Eventually, the Plaintiff was taken upstairs and into a room and

questioned by a Police Officer Mark Pierro. Present at the time

were Police Officers Beckley and Vinnie Antonucci. Other officers

were also present.

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34. The Plaintiff was informed in that room that Michael

Tricardo had been arrested for a drug offense involving ecstacy and

that Gabe had been followed for some period of time prior to that

date. The Plaintiff was informed that the drug bust had a value of

one hundred thousand dollars. The Plaintiff was informed that the

quantity of ecstacy was five thousand tabs or pills [the Plaintiff

cannot recall the specific word used to describe the substance].

35. The Plaintiff had no knowledge of such and, when

questioned, made such known to the Officer[s]. When questioned

about a bag in which some ecstacy was apparently seized, the

Plaintiff indicated that she did not know what bag the Officers

were speaking about. The Plaintiff was asked whether, if they

"dusted the bag", her fingerprints would be found on it. The

py—v /—t

Plaintiff indicated "no" because she had no idea what bag it was that they were discussing. The Plaintiff was asked about why she was in Tarrytown and the Plaintiff indicated that she and her boy friend and Frank Rossi were going out to dinner. The Officers indicated, in substance, that such was unusual and questioned the Plaintiff about such particularly that she and her boyfriend were going out to dinner with a third person, Frank Rossi. The Plaintiff responded that it was not unusual and that it was "like 'Three's Company', backwards". The Plaintiff has known Frank Rossi and Michael Tricardo for many years as persons in the general neighborhood where they grew up. It has only been in the last year and one half or thereabouts that the Plaintiff and Michael Tricardo have been dating. The Officers asked the Plaintiff about $466.00 which was in her wallet. The Plaintiff indicated that she needed to buy a birthday gift for Michael Tricardo and she had that money for that purpose. The Plaintiff had just stopped receiving unemployment as a consequence of the loss of her position at Cushman and Wakefield [because of down sizing]. The Plaintiff had been receiving $385.00 per week. The Officers also asked the Plaintiff where Michael Tricardo got his money and the Plaintiff indicated that, as far as she knew, Michael Tricardo had received some monies when his father had passed away approximately three years ago. The Plaintiff was asked if Michael Tricardo bought her extravagant jewelry and the Plaintiff responded that at holidays Michael Tricardo has bought her jewelry. The Plaintiff was asked if she and Michael Tricardo went on a lot of trips and the

"It1,

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Plaintiff indicated that they had just gone on a trip to Acapulco. ( I When asked who paid for the trip, the Plaintiff indicated that
Michael Tricardo had paid for the trip but that she had brought her own monies, as well. The Officer[s] indicated that they wanted to let the Plaintiff go and would she sign a statement. The Plaintiff indicated she would. The Plaintiff asked did it have to be written or typed. The Officers, in a joking manner, said, "you can type?" The Officer[s] indicated the statement must be handwritten. The Plaintiff then wrote a statement out which was dictated to the Plaintiff. During the dictation, the Officers made reference to the bag, again, and the Plaintiff refused to write something about the bag which would have suggested, the way it was being dictated, that she had knowledge of some bag [which she did not]. The Officer[]s, again in somewhat of a jovial manner, { | stated, with respect to the dictation at that point, "we're kidding, we're kidding". The Plaintiff responded that she did not have time for jokes.
36. After the statement was dictated to, and written by, the Plaintiff, she re-read it and signed it and she was required to place a time on it. The Plaintiff recalls and believes that the time was approximately 8:45 P.M.
37. Thereafter, the Plaintiff asked if she could use the bathroom and was permitted to do so although a female Officer observed the Plaintiff in the bathroom.
38. The Plaintiff asked if she could leave. The Plaintiff was placed in a room and was informed that she would be able to
MUM*

leave "soon".

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39. The Plaintiff was placed in the room witft an Officer known

as Roman, the individual whom the Plaintiff previously saw on the

street and who, on the street, was observed by the Plaintiff with

a gun.

40. During the course of the period that the Plaintiff was

with Ramon, it was then that she learned from him that he was

Cuban.

41. He also indicated to the Plaintiff that she did not meet

the "profile" because of his observation of how the Plaintiff was

shaking when she was handcuffed on the street.

42. The Plaintiff was held from 8:45 P.M. to approximately

midnight or 12:30 A.M. The Plaintiff would periodically ask when

she could leave and was continuously told "soon". The Plaintiff

/ i asked where the nearest train station was so that she could travel

back to New York City.

43. The Plaintiff did not, however, feel that she was free to

leave until she was told that she could leave and she was never

told that she could leave when she continued to ask when she could

leave.

44. The Plaintiff asked whether Frank Rossi had been arrested.

The Plaintiff was informed by the Officer that he did not think so.

45. Prior thereto, when the Plaintiff had been in the room

being questioned by Officer Pierro and others, the Plaintiff had

been informed that: "your boy friend is going away".

46. Prior to the Plaintiff's release, all of her property was

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vouchered/invoiced.
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41. The Plaintiff's pocketbook was returned'as was her jewelry [the latter at a different point of time prior to the release].
48. The Plaintiff was asked to ascertain whether all of her property was accounted for and the Plaintiff, after a thorough search, indicated that a check book insert was missing. As result, the Plaintiff was taken out of the facility and brought to the impounded vehicle [the vehicle in which the Plaintiff had driven to Tarrytown]. After a serach of the vehicle, the insert could not be located. There was further discussion in which the Officers indicated that, if and when they found the insert, they would mail it to the Plaintiff. The Plaintiff rejected such offer and wanted to continue to look for it. Eventually, the insert was found on a desk. The insert contained the Plaintiff's birth certificate and such was the reason that she was particularly concerned about it because she needed her birth certificate to look for employment and because her birth certificate was an otherwise valued document.

49. In the process of leaving, the Plaintiff saw Michael Tricardo. Having apparently seen the Plaintiff, Michael Tricardo

asked if he could say goodbye to the Plaintiff. He was permitted to do so. In addition and with this consent, the Plaintiff was permitted to take his possessions. It was at this time that the

Plaintiff received her jewelry back into her possession. 50. it was at this point that the Officer Pierro indicated

that he would take the Plaintiff and Frank Rossi, who was then being released, to New York since he had to do something in

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Brooklyn. 51. Accordingly, the Plaintiff and Frank* Rossi went with
Officer Pierro and Officer Antonucci in a police vehicle and were transported to Brooklyn.
52. Shortly after leaving the law enforcement facility, the Officers stopped to get a six pack of Corona beer. Frank Rossi paid for such. It occurred in the context of the Officers providing Frank Rossi and the Plaintiff cigarettes and Frank Rossi indicating that, if they stopped, he would get a package of cigarettes so that he could return them to the Officers. At that point, Officer Pierro indicated that he "could sure use a Corona" and eventually, the Officerfs] stopped the vehicle and Frank Rossi purchased cigarettes and a six pack of the Corona beer.
53. On the trip to Brooklyn, the Plaintiff and Frank Rossi each had one beer and each of the two Officers had two beers.
54. During the ride, the Officers made several comments including, from Officer Antonucci, that the way the Plaintiff was speaking it sounded as if she was in a "battering relationship". Officer Pierro indicated that Michael Tricardo was a bad guy, a "piece of shit" and an "anti-Christ". Officer Pierro indicated: "how could he bring his 'old lady' to a drug deal".
55. The officers indicated that, before they took the Plaintiff and Frank Rossi home, Frank Rossi was going to show them where Michael Tricardo lived. Frank Rossi indicated to them that they already had Michael Tricardo's address because they had his license.
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56. The officers went to the location where Michael Tricardo y-—I lived. Michael Tricardo resides with his'*, mother [at his
grandmother's house], at 2051 East 18th Street, Brooklyn, New York 11229.
57. At about l;30 A.M., the Officers arrived at the residence and, when at the door, informed Michael Tricardo's grandmother, that they had a consent from Michael Tricardo to search his room and only his room at the premises. The Officers entered and the Plaintiff and Frank Rossi remained with the grandmother who lived on the middle floor of this three floor premises. Michael Tricardo and his mother lived on the third floor; and an aunt lived in the basement level. The Officers had a key and believed that the key was to the door to the premises where Michael Tricardo and his mother lived. However that key was not the key to the premises and /pi the Officers asked the grandmother or the aunt whether the individual had key. The door was opened and the Officers entered.
58. The aunt and the aunt's boyfriend went into the premises with the Officers. In addition, two officers from the 61st Precinct went into the premises as well apparently having been notified of the same.
59. Eventually, approximately one hour later, the Officers exited. At that time they asked the Plaintiff what she was going to do and the Plaintiff indicated that she was going to stay with the grandmother who was particularly shaken by the matter. The Officers indicated that the Plaintiff would be arrested if she gave Michael Tricardo money for bail and if they saw her in Court and

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if she went to visit Michael Tricardo.

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60. The Plaintiff was subjected to fal^fe arrest, false

imprisonment, excessive and unnecessary seizure and an unjustified

and an improper and unreasonable intrusive body serach. There was

no probable cause for the stop, detention, seizure, imprisonment;

and there was no other reasonable suspicion or basis for such.

There was absolutely no reasonable justification for the intrusive

body serach.

61. The actions and conduct of the law enforcement officers

were taken in the course of their duties and functions as law

enforcement officers. Although illegal, unconstitutional, and

wrongful, the actions and conduct were taken incidental to the

otherwise lawful performance of their duties and functions.

62. The actions and conduct of the Officers were taken

,— pursuant to and implementation of polices and practices of the

municipal entity which policies and practices are grounded in the

philosophy that the "ends justifies the means" and, therefore,

crossing the line is permissible in order to obtain arrests and

prosecutions of those whom law enforcement officers believe have

engaged in otherwise wrongful conduct.

Fortunately, the

Constitution of the United States prohibits the "ends justifies the

means" approach to law enforcement which, as is the situation

herein, caused the law enforcement officers to cross the line and

engage in impermissible and unlawful conduct toward the Plaintiff

in the context of the law enforcement agents' efforts to deal with

the suspicions that they possessed with respect to Michael

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Tricardo, there bring no existent reasonable suspicions regarding

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the Plaintiff except and only for the fact that the Plaintiff was

in the proximity of Michael Tricardo.

63. The Plaintiff suffered injuries and damages including

humiliation, anger, mental distress, emotional anguish, and

psychological trauma, the residual effects of which still continue.

64. The Plaintiff's rights under the First, Fourth and

Fourteenth Amendment to the United States Constitution and the

civil Rights Act of 1871, 42 U.S.C. Section 1983, were violated.

The Plaintiff's right under the laws and Constitution of the State

of New York were violated.

65. The Plaintiff was otherwise subjected to negligence

actions on the part of the Defendants which negligence actions were

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the proximate cause of the injuries and damages which she suffered. 66. The Plaintiff seeks yet to be calculated compensatory and

punitive damages.

67. The Plaintiff has no other adequate remedy at law.

FIRST CAUSE OF ACTION

68. The Plaintiff reiterates Paragraph #'s 1 through 67 and

incorporates such by reference herein.

69. The actions, conduct and policies and practices violated

the Plaintiff's rights under the First, Fourth and Fourteenth

Amendments to the United States Constitution and the Civil Rights

Act of 1871, 42 U.S.C. Section 1983. 70. The Plaintiff suffered injuries and damages.

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SECOND CAUSE OF ACTION

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71. The Plaintiff reiterates Paragraph # *5s 1 through 70 and

incorporates such by reference herein.

72. The Plaintiff was subjected to false arrest and

imprisonment in violation of her rights under the Fourth Amendment

to the United States Constitution and the Civil Rights Act of 1871,

42 U.S.C. Section 1983.

73. The Plaintiff suffered injuries and damages.

THIRD CAUSE OF ACTION

74. The Plaintiff reiterates Paragraph #'s 1 through 73 and

incorporates such by reference herein.

75. The Plaintiff was subjected to an intrusive body search.

Such violated the Plaintiff's rights under the Fourth Amendment to

the United States Constitution and the Civil Rights Act of 1871, 42

|T~| U.S.C. Section 1983.

76. The Plaintiff suffered injuries and damages.

FOURTH CAUSE OF ACTION

77. The Plaintiff reiterates Paragraph #'s 1 through 76 and

incorporates such by reference herein.

78. The actions and conduct of the Defendant Officers were

propelled by the policies and practices of the County of

Westchester which policies and practices violated the Plaintiff's

rights under the First, Fourth and Fourteenth Amendments to the

United States Constitution and the Civil Rights Act of 1871, 42

U.S.C. Section 1983.

79. The Plaintiff suffered injuries and damages.

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FIFTH CAUSE OF ACTION

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80. The Plaintiff reiterates Paragraph # 's*'l through 79 and

incorporates such by reference herein.

81. The Plaintiff was subjected to false arrest and false

imprisonment aind an unnecessary and excessive seizure [intrusive

body search] in violation of her rights under the laws and

Constitution of the State of New York.

82. The Plaintiff was injured and damaged.

SIXTH CAUSE OF ACTION

83. The Plaintiff reiterates Paragraph #'s 1 through 82 and

incorporates such by reference herein.

84. Independent of the federal law claim against the Defendant

County of Westchester arising out of the Monell policy and practice

construct, the Plaintiff possesses a respondeat superior claim over

' I and against the Defendant County of Westchester under pendent party

and pendent State law jurisdiction.

85. The Plaintiff suffered injuries and damages.

SEVENTH CAUSE OF ACTION

86. The Plaintiff reiterates Paragraph # 's 1 through 85 and

incorporates such by reference herein.

87. The actions and conduct of the Defendant parties were

negligent and the proximate cause of injuries and damages suffered

by the Plaintiff.

88. The Plaintiff suffered injuries and damages.

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WHEREFORE and in light of the foregoing, it is respectfully
Ti requested thaij: the Court assume jurisdiction herein and thereafter:
[a] Assume pendent party and pendent claim jurisdiction.
I [b] Enter appropriate declaratory and injunctive relief.
[c] Award appropriate compensatory and punitive damages in an amount to be defined and determined.

[d] Award reasonable costs and attorney's fees.
[e] Award such other and further relief as the Court deems appropriate and just.
[f] Convene and empanel a jury.
DATED: New York, New York July 5, 2001
espectfully submitted,

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//JAMES I. MEYERSON "( 4304) 396 Broadway-Suite # 601

New York, New York 10013

[212] 226-3310

ATTORNEY FOR PLAINTIFF

BY:

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Sarnicola v. County of Westchester PN-NY-002-004

 
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* PRELIMINARY STATEMENT €
Defendants, The County of Westchester, and Sergeant Thomas McGura, individually and in his official capacity, hereinafter (County defendants) by their attorney, Charlene M. Indelicato, Westchester County Attorney, Jane Hogan Felix, Senior Assistant County Attorney, of counsel submit this memorandum of law in support of their Motion for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure ("FRCP").
STATEMENT OF FACTS For a statement of material facts, County defendants respectfully refer this Honorable Court to their Rule 56.1 Statement.
ARGUMENT POINT I
COUNTY DEFENDANTS ARE ENTITLED TO JUDGMENT AS A MATTER OF LAW BECAUSE PROBABLE CAUSE EXISTED FOR THE ARREST, DETENTION AND STRIP SEARCH OF THE
PLAINTIFF
Summary judgment should be granted if the evidence demonstrates that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S. Ct. 2505 (1986). The substantive law identifies the facts, which are material for each cause of action. Id. at 250.
Sarnicola v. County of Westchester
PN-NY-002-008

The party opposing summary judgment must establish the odstence of every

element essential to its case on which the party will bear the burden of proof at trial.

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The burden of the party resisting

summary judgment will not be satisfied by some metaphysical doubt as to the material

facts, conclusory allegations, unsubstantiated assertions or only a scintilla of evidence.

These types of allegations are clearly insufficient to raise genuine issues of fact.

Matsushita Electrical Industrial Co. v. Zenith Radio Corp.. 475 U.S. 574, 586-87 (1986);

Cifarelli v. Village of Babylon. 93 F.3d 47, 51 (2d Cir. 1996). A party may not rely on

mere speculation or conjecture as to the true nature of the facts to overcome a motion for

summary judgment. Knight v. U.S. Fire Ins. Co. 804 F.2d 9, 12 (2d. Cir. 1986)

"Summary judgment is a tool to winnow out from the trial calendar those cases whose

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facts predestine them to result in a directed verdict." United National Ins. Co. v. Tunnel,

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Inc., 988 F.2d 351, 355 (2d Cir. 1993).

Also, it is well settled in this Circuit that a party is not permitted to create his or

her own genuine issue of material fact simply by presenting contradictory or unsupported

statements; and the existence of a disputed fact will not prevent the granting of a motion

for summary judgment unless the disputed fact is material. Celotex Corp. v. Catrett, 477

U.S. 317 (1986); Mack v. United States. 814 F.2d 120, 124-25 (2d Cir. 1987); Burlington

Coat Factory Warehouse Corp. v. Esprit De Corp.. 769 F.2d 919, 923 (2d. Cir. 1985);

SEC v. Research Automation Corp.. 585 F.2d 31, 33-34 (2d Cir. 1978)

As demonstrated below, the County defendants' motion should be granted based

upon the pleadings, the deposition testimony, the undisputed facts and the applicable law.

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Here, the County defendants are entitled to summary judgment, as there are no disputed issues of facts, which would prevent the Court from concluding that probable cause, existed for the arrest, detention and strip search of the plaintiff.
PROBABLE CAUSE "Probable cause to arrest a person exists if the law enforcement official, on the basis of the totality of the circumstances, has sufficient knowledge or reasonably trustworthy information to justify a person of reasonable caution in believing that an offense has been or is being committed by the person to be arrested." United States v Michios, Rivera and DaSilva. 1998 U.S. App. LEXIS 23534; (Hogan Felix Declaration Exhibit "M") Dunway v. New York, 442 U.S. 200, 60 L.Ed. 2d 824, 99 S.Ct. 2248 (1979); United States v. Patrick, 899 F.2d 169, 171 (2d Cir. 1990). The defendant bears the burden of establishing that his actions were justified based on probable cause. (See
Raysor v. Port Authority of New York & New Jersey, 768 F.2d 34 (2d Cir. 1985) To meet that burden the defendant must show that he had a quantum of evidence which amounted to "more than a rumor, suspicion, or even a strong reason to suspect". United States v. Fisher, 702 F. 2d 372 (2d cir. 1983)
It is also important to note, however, that probable cause requires neither a prima facie showing of criminal activity nor a showing that evidence of a crime will, more likely than not, be found. United States v. Cruz, 834 F.2d 47 (2d Cir. 1987) Probable cause requires only the possibility of criminal activity or the possibility that evidence of a crime will be found. Texas v. Brown, 460 U.S. 730 (1983). Moreover, in determining whether probable cause exists, the experience and expertise of the law enforcement

agents should be taken into consideration. United States v. Perea.?848 F. Supp. 1101 (E.D.N.Y. 1994)
In the instant case the officer had sufficient information to believe that probable cause existed for the arrest, detention and subsequent strip search of the plaintiff. Sergeant McGurn was in charge of the field "buy and bust" drug operation on April 26, 2001. He was an officer with nearly thirty years of police experience and seven years of experience as a narcotics officer. Sergeant McGurn remained in constant, direct communication with all of the other officers who were assigned to the detail. Further, he was entitled to rely on the information provided to him by fellow police officers. Bernard v. United States, 25 F. 3d 98, 102-3 (2d Cir, 1994); Martinez v. Simonetti et. al.. 202 F. 3d 625.
Sergeant McGurn personally participated in three prior drug transactions between undercover police officer, Detective Christopher Kelly, and Gabriel Name Redacted On the day of the arrest, Sergeant McGurn was advised by one of his surveillance officers, that a second vehicle containing three passengers was following the Name Redacted vehicle as Name Redacted
was traveling to meet the undercover officer. Sergeant McGurn formulated the impression that it was probable that the second vehicle contained the drug supplier who had followed the drugs to the transaction to ensure that he received his money. He remembered a similar incident involving the third drug transaction, which involved a smaller amount of drugs and money, where Name Redacted was observed meeting with a man in Tarrytown just prior to meeting the undercover officer and then was observed returning to meet the same man immediately after consummating the drug deal. Sergeant McGurn opined, as did Sergeant Buonanno of the Tarrytown Police Department, that

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such activity was "textbook", meaning that in their experience drug^leals often occur in

this manner.

On the day of the arrest, Sergeant McGurn observed the Name Redacted vehicle pull

into the parking lot where he and other officers were parked in undercover police

vehicles. He observed a silver Dodge Durango; being driven by the plaintiff, pull into the

parking lot immediately behind the Name Redacted vehicle and park adjacent to the vehicle.

Detective Rowan, who was in a different location in the parking lot, reported the

description of the three individuals who exited the Durango over his police radio to

Sergeant McGurn and all other units. Name Redacted was observed to exit his vehicle and

stand by the trunk apparently waiting for the three occupants of the Durango to exit their

vehicle. The plaintiff, along with the two other occupants, (later identified to be Michael

Tricardo and Frank Rossi) had a brief conversation with Name Redacted in the parking lot.

Michael Tricardo had been seated in the front passenger seat and Frank Rossi had been

seated in the rear. Detective Rowan observed all four subjects apparently exiting the

parking lot together and reported such information to Sergeant McGurn.

Moments later the undercover officer spotted Name Redacted in his side view mirror.

The officer believed Name Redacted was walking with the plaintiff and Frank Rossi and that

the three were engaged in conversation. Undercover officer, Detective Kelly, next

observed the plaintiff and Frank Rossi look into the undercover vehicle as Name Redacted was

getting in the vehicle. Detective Kelly and Name Redacted consummated the drug deal and

Name Redacted was arrested.

After the arrest of Name Redacted Detective Kelly told Sergeant McGurn that he had

observed the plaintiff walking and talking to Name Redacted and Rossi just prior to Name Redacted

getting into his vehicle. He volunteered to search for the plaintiff a£d Rossi because he

believed he could readily identify them. Sergeant McGurn immediately began to

question Name Redacted about the identities of the three occupants of the Durango. After

waving Miranda rights, Name Redacted confirmed Sergeant McGurn's suspicion and advised

him that Tricardo was his drug supplier. According to Name Redacted Tricardo insisted on

following Name Redacted to the site of the drug deal because of the amount of money

involved. Name Redacted further stated that he and Tricardo had talked on the cell phone

repeatedly on the way from Brooklyn to Tarrytown during which time Tricardo dictated

how the drug deal should take place and that it should happen quickly. Name Redacted further

advised Sergeant McGurn that when the four conversed in the parking lot prior to the

drug deal, Tricardo, once again, reiterated that the deal should happen quickly.

Based on the totality of the circumstances, as outlined above, Sergeant McGurn

ordered that the plaintiff be arrested and detained pending further investigation. Clearly

the officer had probable cause to arrest the plaintiff under the circumstances of this case.

While it is established law that "a person's mere propinquity to others independently

suspected of criminal activity does not, without more, give rise to probable cause, Ybarra

v. Illinois, 444 U.S. 85, 91, 62 L.Ed. 2d 238, 100 S.Ct. 338 (1979), the known

circumstances tying the plaintiff to the drug transaction for which she was arrested were

substantially more than a "mere propinquity" to another suspect. Unlike in Ybarra, where

the defendant was arrested based solely on his presence in a public place, the plaintiff

here transported the drug supplier from Brooklyn to the site of the drug transaction. She

was present when the drug transaction was discussed during cell phone communications

n

and during a final conversation minutes prior to Name Redacted entering the under cover's

vehicle. It was reasonable for Sergeant McGurn to conclude that tjje plaintiff was a knowing participant in the drug transaction. The information provided to Sergeant McGurn by Detective Rowan and under cover officer, Detective Kelly, that the plaintiff was walking and talking with Name Redacted up until the moment he entered the under cover's vehicle and that she looked in the vehicle as she walked by the under cover's vehicle, added to the reasonable impression of the plaintiffs participatory involvement.
As the Supreme Court has explained the evidence "must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement". United States v. Cortez, 449 U.S. 411, 418, 66 L.Ed. 2d 621, 101 S. Ct. 690 (1981) Sergeant McGurn was entitled to rely on his experience in the field and to reasonably conclude that the presence of the plaintiff and others, in the company of Name Redacted
under the circumstances, was consistent with the manner in which drug transactions generally occur. (See Perea, Supra.) Detective Pierro and Detective Rowan both testified that in their experience it was not unusual for the drug seller to arrive on the scene with additional people to act as lookouts or to be armed with weapons. Detective Pierro acknowledged that it was for that very reason that he and Detective Bravo were armed with shotguns. Detective Kelly testified that the large number of officers present as members of his backup team were necessary for his safety and security as well as the safety and security of the general public. .
The United States Court of Appeals for the First Circuit, in Martinez-Molina observed "we do not think officers in the field are required to divorce themselves from reality or to ignore the fact that criminals rarely welcome innocent persons as witnesses to serious crimes and rarely seek to perpetrate felonies before larger than necessary

audiences". United States v. Martinez-Molina. 64 F. 3d 719, 729 (l|t Cir. 1995). Similarly, the Court in United States v. Baltodano. 2000 U.S. App. Lexis 6692 (9th Cir. 2000) found probable cause to arrest a passenger in a vehicle loaded with a commercial quantity of marijuana. The Court recognized that "the border agents' experience indicated that drug dealers do not normally carry out their criminal activity without the knowledge of all persons present".
The United States Court of Appeals for the Second Circuit reversed the District Court's decision in United States v. Patrick, 899 F.2d 169, (2d Cir. 1990) by easily distinguishing the case from Ybarra's "mere propinquity" doctrine. The Court found that the Customs officials knew much more about Patrick than just his "propinquity" to Taylor, a person for whom they had probable cause to make an arrest. The Court found that the officials observed the two enter the Customs office together, both carrying knapsacks, at a time when no other pedestrians were around. The two both told a similar story about accidentally crossing the border into Canada. Once cocaine was found in Taylor's knapsack the Court opined that the totality of the circumstances known to the Custom officials at the time provided an adequate basis for the officials to reasonably believe that Patrick was not just a mere innocent traveling companion but was traveling and acting in concert with Taylor in transporting cocaine.
In the instant case, Sergeant McGurn's suspicions about the plaintiffs involvement in the drug transaction, which were initially justifiably based on his experience in the field, were unquestionably confirmed by the information obtained from Name Redacted within minutes of his arrest. Accordingly, his decision to arrest the plaintiff was justified as having been based on probable cause to believe that the plaintiff was
O

engaged in criminal activity. Consequently plaintiffs second cai$e of action should be

dismissed.

LENGTH OF DETENTION

The Fourth Amendment to the United States Constitution guarantees the freedom

from "unreasonable" seizures. (Untied States Constitution, Amendment IV). Plaintiff

challenges the length of her detention in the fifth cause of action of her complaint. The

length of the plaintiffs detention (approximately three hours and forty minutes) was

reasonable under the totality of the circumstances in this case. Plaintiff was initially

taken into custody and brought to the Westchester County Department of Public Safety

Headquarters at approximately 7:00 P.M. She was thereafter released to the lobby of the

police headquarters at approximately 10:40 P.M. During the intervening time period she

o

was processed, searched and questioned. The three other individuals, who were taken into

custody with her, were also questioned. Her statement was completed and signed at 8:45

P.M. By approximately 10:40 P.M. the plaintiff had collected all of her belongings and

was waiting in the reception area of the police headquarters. Detective Pierro and

Detective Antonecchia, who were part of a team of officers dispatched to Brooklyn to

conduct a search of Tricardo's apartment, ultimately drove her back to Brooklyn.

Accordingly, the length of her detention was not unreasonable under the totality of the

circumstances of this case.

STRIP SEARCH

As an invasive procedure, a strip search requires probable cause. Dunwav.

New York, Supra., Rivera v. United States, 928 F.2d 592 (2d Cir. 1991); Walsh v.

Franco, 849 F.2d 66 (2d Cir. 1988); M.M. v. Anker, 607 F2d 588, 589 (2d Cir. 1979)

Arrestees have a right, absent a reasonable suspicion of concealmenj of drugs or

contraband, not to be subjected to a search by prison officials. Weber v. Dell, 804 F2d

796, 802 (2d Cir. 1986), cert denied 483 U.S. 1020 (1987). The suspicion justifying the

search must arise from the nature of the charge or the circumstances of the arrest. United

States v. Montova De Hernandez, 473 U.S. 531, 87 L.Ed. 2d 381, 105 S. Ct. 3304 (1985)

In the instant case, the plaintiff was arrested based on the reasonable suspicion

that she had knowingly participated in the sale of a substantial amount of narcotic drug

known as ecstasy. It was reasonable for the officers to believe that based upon the

circumstances the plaintiff could have secreted both a weapon and contraband on her

person. Under the circumstances of this case, the nature of the crime for which the

plaintiff was taken into custody, as well as the proven ability of drug dealers to secrete

contraband on their persons the instant strip search did not violate the plaintiffs

constitutional rights. (See Weber v. Dell, Supra., Campbell v. Fernandez 54 F. Supp. 2d

195. Moreover the circumstances of the search were not unreasonable. The plaintiff was

taken to a secluded area outside of the view of any other individuals. A female officer

who did not make any physical contact with the plaintiff searched her. Accordingly, the

plaintiffs third cause of action should be dismissed.

POINT II

THE STATE CAUSES OF ACTION FOR FALSE ARREST AND FALSE IMPRISONMENT SHOULD BE DISMISSED AS THE POLICE ACTIONS
WERE BASED UPON PROBABLE CAUSE
To the extent that plaintiff alleges false arrest and false imprisonment in the

second cause of action, they are considered synonymous causes of action. (See Posr v.

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Dohertv, 944 F. 2d 91, 96 (2d Cir. 1991). The elements necessary to state a claim for

10

inI--v

false arrest under 42 U.S.C. Section 1983 are the same as those necejfeary to state a claim

for false arrest under New York State law. Wevant v. Okst. 101 F.3d 845, 852 (2d Cir.

1996) To state a claim for false arrest under New York State law, a plaintiff must show

that: (1) the defendant intentionally confined the plaintiff (2) the plaintiff was conscious

of the confinement (3) the plaintiff did not consent to the confinement (4) the

confinement was not otherwise justified. (See Posr, Sup_ra.) The existence of probable

cause to arrest is a complete defense to an action for false arrest. Bernard v. United

States, 25 F. 3d 98, 102 (2d Cir. 1994). As set forth in the arguments outlined above, the

officer had probable cause to believe that the plaintiff had engaged in the commission of

a crime. Accordingly, her state claim of false arrest and false imprisonment contained in

the sixth cause of action must be dismissed.

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POINT III

THE CLAIMS AGAINST THE COUNTY SHOULD BE DISMISSED BECAUSE EVEN IF THE COURT FINDS THAT THE PLAINTIFF'S CONSTITUTIONAL RIGHTS WERE VIOLATED THERE IS NO EVIDENCE THAT A COUNTY POLICY OR PRACTICE CAUSED THE VIOLATION OF

THE PLAINTIFF'S CONSTITUTIONAL RIGHTS

Plaintiffs first and fourth causes of action appear to assert claims based upon

the alleged existence of a County policy or practice which caused the deprivation of

her constitutional rights. It is well settled that when a municipality is to be held liable

for violation of an individual's constitutional rights pursuant to 42 U.S.C. Section

1983, it must be established that an employee was acting pursuant to an officially

adopted municipal policy or custom. Monell v. New York City Department of Social

n

Services, 436 U.S. 658, 98 S. Ct. 2018 (1978); Zanghi v. Incorporated Village of Old

Brookville, 752 F.2d 42 (2d Cir. 1985). Since plaintiff has failed to establish a

violation of her constitutional rights as a result of her arrest, detent^n and strip search,

she lacks standing to challenge the policies and practices of Westchester County

:

Department of Public Safety. Dietz v. Damas, 932 F. Supp 459.

Assuming arguendo, that the Court finds a constitutional violation, the record

is devoid of any evidence demonstrating that any such County policy resulted in the
i

I

deprivation of the plaintiffs rights. The policy of a municipality must be either

express, Monell, supra, or inferred from a single decision taken by the highest official

responsible for setting policy in that area of municipal business. City of St. Louis v.

Praprotnik, 485 U.S. 112, 108 S. Ct. 915 (1988). In the absence of such a policy,

plaintiffs must demonstrate a custom or practice of the municipality by establishing

facts outside their own case constituting similar unconstitutional conduct. Thurman v.

Torrington, 595 F. Supp. 1521 (D. Conn. 1984). To amount to a custom or practice,
0

there must be a persistent pattern or practice by municipal officials, which is "so

widespread as to have the force of law." Board of the County Commissioners of

Bryan County, Oklahoma v. Brown et al., 117 S. Ct. 1382, rehearing denied, 117 S.Ct.

2472 (1997)Turpinv.Mailet 619 F.2d 196, 199 (2d Cir.), cert denied, 449 U.S. 1016

(1980) (emphasis added).

Finally, and perhaps most importantly in this case, plaintiff must

establish that the policy or custom is causally related to the alleged constitutional

deprivation. Monell v New York City Department of Social Services, 436 U.S. at

2036. As stated previously, a municipality cannot be held liable solely because it

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employs a tortfeasor, and traditional notions of respondeat superior do not apply to

actions against a municipality under Section 1983. Id.; See also, Dominguez v.

12

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^ Beame, 603 F.2d 337 (1979), cert, denied, 446 U.S. 917 (1980). Mnunicipality will

only be held liable under Section 1983 if "deliberate action attributable to the

municipality itself is the 'moving force' behind the plaintiffs deprivation of federal

rights." Board of the County Commissioners of Bryan County, Oklahoma v. Brown et

aL, 117 S. Ct. at 1388. Indeed, "[w]here a plaintiff claims that the municipality has

not directly inflicted an injury, but nonetheless has caused an employee to do so,

rigorous standards of culpability and causation must be applied to ensure that the

municipality is not held liable solely for the actions of its employees. " Id. at 1389

(citations omitted).

At the outset, plaintiff has failed to allege, except in a conclusory fashion, that

a municipal policy or custom caused the alleged constitutional violations here. Even

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assuming this single incident (the alleged arrest, detention and strip search of the

plaintiff) was unconstitutional, it is insufficient to support plaintiffs' claim of a policy

or custom. The record in this case is devoid of any information, which would support

the conclusion that the plaintiffs rights were violated as a result of a persistent pattern

or practice of the County of Westchester. Certainly the record reflects no express

policy of Westchester County Department of Public Safety to make arrests on less

than a probable cause standard. The County's policy on strip-searching certain

arrestees is consistent with applicable law. Rather, the record reflects a policy, which

is Constitutionally sound. Bare assertions, in the absence of any evidence of the

existence of a policy or practices, which were so persistent as to constitute custom or

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usage, are insufficient to create an issue of fact. Amato v. City of Saratoga Springs,

972 F. Supp. 120, 127 (N.D.N.Y. 1997)

13

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^—^

In light of the foregoing failure of plaintiff to attribute the purported constitutional

violations directly to a municipal policy or custom, plaintiffs first and fourth causes of

action must be dismissed.

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(I

THERE IS NO CAUSE OF ACTION EMINATING FROM THE CLAIM OF NEGLIGENT ARREST
There is no independent cause of action under New York law for the negligent arrest and prosecution of an individual. Shea v County of Erie, 202 AD2d 1028, (4th Dept. 1979); Staltieri v County of Monroe, 107 AD2d 1071; Boose v Rochester, 71 AD2d 59. Consequently all negligence claims asserted by plaintiff in her seventh cause of action, relative to her arrest must be dismissed.
QUALIFIED IMMUNITY
Qualified Immunity is available if it was objectively reasonable for the officer to believe his acts were not unconstitutional. Anderson v. Creighton 483 U.S. 635, 638, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987); Frank v. Relin 1 F. 3d 1317 (2d Cir. 1993). When a valid defense of qualified immunity is raised, summary judgment is appropriate to eliminate merit less actions against public officials at early stages in the litigation. Mitchell v. Forsyth, 472 U.S. 511, 86 L. Ed. 2d 411, 105 S. Ct 2806 (1985).
Summary judgment is appropriate in the context of this case if it can be demonstrated that reasonable officers could have disagreed that probable cause existed for the arrest, detention and strip search of the plaintiff. Anderson, 483 U.S. at 641. Even evidence insufficient to sustain a finding of probable cause may be adequate to show qualified immunity. "The question of immunity remains, as it should, distinct from

14

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the question of probable cause." Warren v. Dwyer. 906 F. 2d 70^75 (2d. Cir. 1990) The

defense of qualified immunity protects all but the "plainly incompetent or those who

knowingly violate the law." Malley v. Briggs, 475 U.S. 335,341, 89 L.Ed. 2d 271, 106 S.

Ct. 1092 (1986) While the subjective beliefs of the defendant are not to be considered on

a qualified immunity determination "for the purposes of qualified immunity and arguable

probable cause, police officers are entitled to draw reasonable inferences from the facts

they possess at the time of the seizure based upon their own experiences". Cerrone v.

Cahill, 246 F. 3d. 194, 202, (2d Cir. 2001) In other words, the "court must evaluate the

objective reasonableness of the officer's conduct in light of clearly established law and

the information the officers possessed." Cerrone v Cahill, 246 F. 3d at 202.

The officer must show that (a) it was objectively reasonable to believe that

n

probable cause existed, or (b) that officers of reasonable competence could disagree on

whether the probable cause test was met. Elk v. Townson, 839 F. Supp 1047; Anderson

v. Creighton, 483 U.S. at 641. Under the circumstances of this case, the totality of

information known to Sergeant McGurn at the time of the plaintiffs arrest was enough to

support probable cause. If the Court finds that probable cause did not exist, it is

respectfully suggested that reasonable officers could have disagreed as to the existence of

probable cause. In fact, Detective Pierro, Sgt. Buonanno, Detective Kelly and Detective

Antonnechia all testified that in their opinion the plaintiff was a knowing participant in

the criminal activity and that probable cause existed for her arrest.

Moreover, based upon all of the information available to Sergeant McGurn at the

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time of the plaintiffs arrest, it cannot be said that Sergeant McGurn's "judgment was so

flawed that no reasonable officer would have made a similar choice." Lennon v. Miller,

15

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F. 3d 416, 425 (2d Cir. 1995). Accordingly, even if the Court find^that the plaintiffs

Constitutional rights were violated, Sergeant McGurn in entitled to summary judgment

based upon the principles of qualified immunity.

CONCLUSION It is respectfully requested that this Honorable Court grant the County defendants' motion for summary judgment dismissing the action in its entirety, together with costs, fees, disbursement, and for such other and further relief as this Honorable Court deems just and proper.

Dated:

White Plains, New York

n

February 6, 2002

Respectfully submitted,
CHARLENE M. INDELICATO Westchester County Attorney Attorney for Defendant
County of Westchester •,

• fijj. Jane rfofean Felix (4915) Senior Assistant County Attorney 600 Michaelian Office Building 148 Martine Avenue White Plains, New York 10601 Telephone: (914) 995-2708

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16

 
 ,-

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
----------------------------------------x
NICOLE SARNICOLA, Plaintiff,
\

DEFENDANT
COUNTY OF WESTCHESTER'S
STATEMENT PURSUANT TO LOCAL RULE 56.1

-against-

01 Civ. 6078 (CM)

THE COUNTY OF WESTCHESTER, a municipal entity, WESTCHESTER COUNTY POLICE SERGEANT THOMAS MCGURN, individually and in his official capacity,
:'

Defendants.
------------------------------------------x
Pursuant to Local Rule 56.1 defendants County of Westchester and Westchester

nI

County Police Sergeant Thomas McGurn, individually and in his official capacity,

(hereinafter "County"), respectfully submit the following statement of material facts to

which there is no genuine dispute:

I.

The Parties

1. Plaintiff, Nicole Sarnicola, was the driver of a silver Dodge Durango, on

April 26, 2001, which was observed following a vehicle driven by Gabriel Name Redacted an

individual known to the Westchester County Police Officers as a drug dealer. (See Tkacz

affidavit, Sarnicola 50-h testimony pages 21 and 22) (Hogan Felix Declaration Exhibits

"A" and "B") The plaintiff drove the vehicle, from Brooklyn, accompanied by two other

passengers, later identified as Michael Tricardo and Frank Rossi, and followed the NameRedacted

vehicle until it reached a parking lot in Tarrytown, New York whereupon all parties

n

1IIIIIlmrrI if~lrilnllT1I PN-NY-002-009

••

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f ••

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exited their vehicles. (See Sarnicola 50-h testimony page 27) (HQ~an Felix Declaration •
"Exhibit "B") 2. The Defendant, Sgt. Thomas McGurn is a Westchester County
Department of Public Safety Officer, with approximately 30 years of police experience including seven years of experience in Narcotics, who was in charge of the Narcotics Unit on April 26, 2001. (See McGurn deposition page 7) (Hogan Felix Declaration Exhibit "C") Sgt. McGurn was responsible for coordinating the efforts of numerous police officers from the Westchester County Department of Public Safety and the Tarrytown Police Department, in the undercover field "buy and bust" operation involving Gabriel Name Redacted (See McGurn deposition page 8 lines 15-25, page 9 lines 1-4) (Hogan Felix Declaration Exhibit "C") The backup officers were in communication with Sgt. McGurn and were also responsible for surveillance and security. The officers were positioned in various locations in the vicinity of the CVS Parking Lot in Tarrytown, New York and the surrounding streets. (See Pierro deposition page 17 through page 18 line 19, Rowan deposition page 7 lines 8-21, page 12 lines 1-9, Kelly deposition page 21 through page 22 line 4, Antonecchia deposition page 7 line 17 through page 8 line 9) (Hogan Felix Declaration Exhibits "D", "E", "F" and "G")
3. The Defendant, County, is a municipal entity existing underthe laws and Constitution of the State of New York.

II. The Complaint

4.

Plaintiff, Nicole Sarnicola, essentially alleges that she was subjected to an

illegal arrest and detention, which was not justified by probable cause, in violation of her

.~

,. _.

•

• _. IV

&1_ ...~

state, and federal Constitutional rights. She further alleges that whWe in custody she was •
subjected to an illegal strip search. Finally, she alleges that the County's policies and
practices were responsible for the damages she suffered resulting from the County
officers' deprivation of her Constitutional rights. (See Complaint paragraphs 70 through
90) (Hogan Felix Declaration Exhibit "H")

III The County's Motion For Summary Judgment
(A) The Plaintiffs Complaint should be dismissed because probable cause existed for the arrest, detention and strip search of the plaintiff; consequently, the County
defendants' actions were justified in their entirety.

5. On April 11,2001, a controlled informant introduced undercover police

officer, Detective Christopher Kelly, to Gabriel Name Redacted ("Name Redacted The purpose

rl

of the introduction was to arrange for future ecstasy purchases. (See Kelly affidavit)

(Hogan Felix Declaration Exhibit "1")

6.

On April 12,2001 Detective Kelly met Name Redacted at a pre-arranged

location in Tarrytown, New York and purchased one hundred ecstasy pills at a cost of

one thousand dollars. Also present at the scene as back-up officers, although

unbeknownst to Name Redacted were defendant, Sgt. Thomas McGurn, Detective Rodriguez

and Detective Weather. On April 13,2001 Detective Kelly again met Name Redacted at a

pre-arranged location in Tarrytown, New York and purchased one hundred ecstasy pills

at a cost of one thousand dollars. Sgt. McGurn, Detective Antonecchia, Detective

Rodriguez and Detective Weather were also present as back-up officers. (See Kelly

affidavit) (Hogan Felix Declaration Exhibit "1")

_.
iii

• • _ . ,W t

7. On April 18, 200 1, in anticipation of what was to beqhe third drug •
transaction between the undercover officer, Detective Kelly and Name Redacted Sgt. McGurn

1· ·~.'~i.'r,.......~...

.
. ..

and Sgt. Buonanno of the Tarrytown Police Department, positioned themselves on Route

9 in the Village of Irvington. The Sergeants observed Name Redacted driving the same

vehicle that he had used on the previous occasions. They followed Name Redacted into the

front parking lot of the Hilton Hotel where he pulled behind a Lincoln Sedan. A white

male exited the Lincoln and got into the passenger side of the Name Redacted vehicle. Name Redacted

drove to the front overhang of the hotel where the white male leaned over to Name Redacted

and then exited the vehicle. Name Redacted immediately proceeded to the pre-arranged

location in Tarrytown, New York where he met up with Detective Kelly and delivered

one thousand ecstasy pills at a cost of eight thousand dollars. Name Redacted was observed to

n

leave the location of the drug transaction and proceed directly back to the Hilton Inn

parking lot where he parked his vehicle and walked into the Hilton Hotel lobby. The

white male exited the Lincoln and followed Name Redacted into the hotel. Shortly afterward

both subjects were observed to exit the hotel and return to their vehicles. (See McGurn

affidavit, Buonanno deposition pages 11 through page 15) (Hogan Felix Declaration

Exhibits "J" and "K") Lt. Emerson, Sgt. McGurn, Sgt. Buonanno, Detective Martin,

Detective Rodriguez, Detective Pierro and Detective Tkacz were present in the area of

the drug transaction as back-up officers. (See McGurn affidavit) (Hogan Felix

Declaration Exhibit "J")

8. On April 26, 2001, just prior to the fourth pre-arranged meeting between

Detective Kelly and Name Redacted Detective Tkacz, observed the Name Redacted vehicle exit

Interstate Route 87 and travel north on Broadway in the village of Tarrytown. Detective

---....---....__--."....-__r-----_. . ._...-__ i _

hi

--,.-----,....,~r__--.....----.----"---------

Tkacz immediately observed that the Name Redacted vehicle was being{ollowed by a Dodge •
Durango with three occupants. Detective Tkacz radioed such information to Sgt.

McGurn. (See Tkacz affidavit) (Hogan Felix Declaration Exhibit "A") Sgt. McGurn,

Captain Annis, Detective Antonecchia, Detective Bravo, Detective Clarke, Detective

Pierro, Detective Polant, Detective Rodriguez, Detective Rowan, Sgt. Buonanno as well

as other members of the Tarrytown Police Department, were all positioned in various

locations around the CVS parking lot in Tarrytown, New York for the anticipated "buy and bust" ofName Redacted (See Tkacz affidavit, Pierro deposition page 17 through page 18

line 19, Rowan deposition page 7 lines 8-21, page 12 lines 1-9, Kelly deposition page 21

through page 22 line 4, Antonecchia deposition page 7 line 17 through page 8 line 9,

McGurn deposition page 8 lines 15-25, page 9 lines 1-4) (Hogan Felix Declaration

n

Exhibits "C","D", "E", "F", "G") Several of the officers were armed with shotguns and

dispatched as security personnel for the "buy and bust" operation. Their function was to

watch the street for persons working with the drug supplier who might create a dangerous

situation for the police personnel and civilians in the area. (See Pierro deposition page 17

lines 4 through 25, page 18 lines 1-19) (Hogan Felix Declaration Exhibit "D") Sergeant

McGurn believed, based on his experience, that the car following Name Redacted contained

Name Redacted drug supplier. (See McGurn deposition page 21 lines 9-25, page 22 lines 1-

25, page 23 lines 1-7) (Hogan Felix Declaration Exhibit "C") He further testified that

such activity so closely fit with his prior experiences in narcotics transactions that it was

"textbook". (See McGurn deposition page 35 lines 17-25, page 36 lines 1-6) (Hogan

Felix Declaration Exhibit "e")

I MI.

ifI

T

Iii i

_._-----._-

is_

9.

Detective Kelly observed the Name Redacted vehicle as i~drove past his

location while he was parked on Broadway in the Village of Tarrytown at the pre-

arranged time for their meeting. He received a page from Name Redacted and was advised by

Name Redacted that he was on his way. Name Redacted made no mention of the fact that he was

traveling with any other individuals. (See Kelly deposition page 16 lines 1-23) (Hogan

Felix Declaration Exhibit "F")

10. Detective Rowan observed the Name Redacted vehicle pull into the CVS

parking lot followed immediately by the Dodge Durango, which was being driven by the

plaintiff. Both vehicles parked next to one another. Name Redacted was observed to exit his

vehicle and stand at the rear of his vehicle apparently waiting for the Durango passengers

to exit their vehicle. Detective Rowan observed Name Redacted Tricardo, Rossi and the

n

plaintiff standing together engaged in a conversation although he could not make out

what was being said. He observed the three men to greet each other with a "high five"

hand signal. (See Rowan deposition page 19 lines 18-25, page 20 lines 1-3, page 21 lines

4-24) (Hogan Felix Declaration Exhibit "E") Detective Rowan communicated via police

radio to the back-up units, including Sgt. McGurn, that Name Redacted arrived with three

individuals, two men and one woman. (Rowan deposition page 22 lines 9-21) (Hogan

Felix Declaration Exhibit "E") Detective Rowan observed the four individuals to appear

to exit the parking lot together. He continued to observe them until they reached the

sidewalk at the end of the driveway leading out of the parking lot. When they reached

the sidewalk it appeared to Detective Rowan that Tricardo and Name Redacted walked off to

the left and that Rossi and the plaintiff, walked off to the right. Detective Rowan lost

sight of the individuals because the sidewalk was crowded with other pedestrians. (See

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,..
-

Rowan deposition page 25 lines 7-25, page 26-27 line 12) (Hogan-felix declaration •
Exhibit "E") 11. Detective Kelly observed Name Redacted walking toward his undercover
vehicle through his passenger side mirror. (Kelly deposition page 17 lines 13-18) (Hogan Felix Declaration Exhibit "F") Detective Kelly observed Name Redacted to be walking with and apparently engaging in conversation with Rossi and the plaintiff. The three walked together up to the undercover vehicle. Detective Kelly observed the plaintiff and Rossi to look in the vehicle and to continue walking south on Broadway in Tarrytown while Name Redacted got into the passenger's side of the undercover vehicle. (See Kelly deposition page 17 line 25, page 18 lines 1-9, page 22 lines 7-25, page 49 lines 1825, page 50 lines 1-14) (Hogan Felix Declaration Exhibit "F")
12. Detective Kelly drove his vehicle to a side street, where his back-up team was positioned, to complete the transaction. It was anticipated that Name Redacted was to provide the under cover with 5000 ecstasy pills in exchange for thirty-two thousand five hundred dollars. (See Kelly affidavit) (Hogan Felix Declaration Exhibit "I") Name Redacted advised Detective Kelly that he did not have the drugs on him and that they were in his car. Detective Kelly and Name Redacted drove to the CVS parking lot where the Name Redacted vehicle and the Dodge Durango were parked. Name Redacted exited DetectiveKelly's vehicle and went to the trunk of his vehicle and retrieved a package. Name Redacted re-entered the under cover vehicle and turned the drugs over to Detective Kelly. Detective Kelly provided Name Redacted with twenty thousand dollars in cash and told Name Redacted to count the money. Kelly then exited his vehicle claiming that the remainder of the money was in the trunk. Kelly opened the trunk of his vehicle, which was a pre-arranged sign to the

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back-up officers signaling that the deal had been completed. Cruz"'fatz was immediately

taken into custody. (See Kelly deposition page 26 lines 9-25, pages 27-29 line 23)

(Hogan Felix Declaration Exhibit "F")

13. Immediately after Name Redacted was taken into custody Sgt. McGurn

questioned him about the identity of the three individuals who accompanied him in the

Dodge Durango. After waving his Miranda Rights, Name Redacted stated that Michael

Tricardo was his drug supplier and that he followed him up from Brooklyn so as to

collect his money on the spot. Name Redacted admitted that he and Tricardo had numerous

cell phone communications during the ride from Brooklyn during which Tricardo told

Name Redacted how the drug deal should take place and that it should happen quickly. Cruz-

Katz also stated that when the four individuals were conversing in the parking lot

immediately after their arrival, Tricardo again dictated how the deal was to take place and

that it had to be completed quickly. (See McGurn deposition page 28 lines 11-25 page 29

lines 1-3, page 31lines7-25, page 35 lines 7-25, page 36 lines 1-6, McGurn Affidavit)

(Hogan Felix Declaration Exhibits "C" and "1")

14. The plaintiff, Frank Rossi and Michael Tricardo were located on the street

and taken into custody and brought to the Westchester County Department of Public

Safety Headquarters. ("headquarters") (See McGurn deposition page 43 lines l z-Zfi)

(Hogan Felix Declaration Exhibit "C") The plaintiff arrived in headquarters just prior to

7:00 p.m. (See McGurn deposition page 82 lines 7-14) (Hogan Felix Declaration Exhibit

"C") While at the headquarters, pursuant to the order of Sergeant McGurn plaintiff was

strip-searched by Officer Ana Maria Beckley. (See McGurn deposition page 56 lines 15-

21) (Hogan Felix Declaration Exhibit "C")

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15. Officer Beckley was called from her post to report tfheadquarters to
• conduct a strip search of the plaintiff at approximately 7:00 p.m. (See Beckley deposition

pages 7-10) (Hogan Felix Declaration Exhibit "L") Officer Beckley vouchered the

plaintiffs jewelry and personal items and then took her to a secluded area in the

headquarters to conduct the strip search. Officer Beckley asked the plaintiff to take off

each item of clothing and to hand the item to the officer. The plaintiff complied with the

officer's requests. When the plaintiff had removed all of her clothes the officer asked her

to tum around and bend over. (See Beckley deposition pages 16-19) (Hogan Felix

Declaration Exhibit "L") Officer Beckley made no physical contact with the plaintiff.

(See Sarnicola deposition page 43 lines 17-21) (Hogan Felix Declaration Exhibit "B")

16. Detective Pierro questioned the plaintiff from approximately 8:20 p.m.

rl

until 8:45p.m., at which time she completed a written statement. (See Pierro deposition

page 24 lines 2-7) (Hogan Felix Declaration Exhibit "D") Afterwards, the plaintiff

remained in a room with another officer for a period of hours during which time she

believed the officers were questioning the three other individuals involved. See Sarnicola

deposition page 47 lines 16-24, page 48 lines 1-16) (Hogan Felix Declaration Exhibit

"B")

17. The plaintiff was released to the lobby of the headquarters cit

approximately 10:40 p.m. after the completion of the interviews with the three other

subjects and consultation with the District Attorney's Office. (See McGurn deposition

pages 69-71, Sarnicola deposition, page 49 lines 20-24, page 50 lines 1-10, page 50 lines

22-24, page 51 lines 1-4) (Hogan Felix Declaration Exhibits "B" and "D") At

approximately 10:45 p.m. she was advised that the detectives would be traveling to
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Brooklyn and they would give her and Frank Rossi a ride back to llfooklyn if they were •

willing to wait a short time. (See McGurn deposition page 73 lines 13-25, page 74 lines

1-16) (Hogan Felix Declaration Exhibit "D") Detective Pierro and Detective

Antonecchia, who were members of a team of officers dispatched to Brooklyn to conduct

a search of Tricardo's apartment, transported the plaintiff and Frank Rossi back to

Brooklyn at approximately midnight. See Antonecchia deposition page 28 lines 2-25,

page 291ines 1-15) (Hogan Felix Declaration Exhibit "G")

(B) If the Court finds that the County Police Officer's actions violated the plaintiffs Constitutional rights the Officer is entitled to Qualified Immunity because it was objectively reasonable for the Officer to believe that his actions did not violate clearly established law.

18 Detective Buonanno testified that while it was not his responsibility to

("'I

decide whether the plaintiff was to be arrested, if it were his responsibility he would have

arrested the plaintiff as well. He believed that the arrest was justified based upon his

experience and the observations of the plaintiff in the CVS parking lot. (See Buonanno

deposition page 57 lines 18-25)

19. Detective Kelly testified that if the decision were his to make he would

have arrested the plaintiff. (See Kelly deposition page 57 lines 21-25, page 58 lines 1-10)

(Hogan Felix Declaration Exhibit "F") He further testified that he believed the plaintiff

was part of a backup team for Name Redacted and that he believed that she and the others

played a part in the drug transaction. (See Kelly deposition page 76 lines 6-22) (Hogan

Felix Declaration Exhibit "F")

20. Detective Pierro testified that based upon his ten years of police

('I

experience and his involvement in many drug dealings, he believed that the plaintiff was

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--
an active participant in the drug transaction. (See Pierro depositiorgpage 4 lines 23-25, •
page 5 lines 1-25, page 57 lines 5-21) (Hogan Felix Declaration Exhibit "D")

iIII(1 1.+. 5

(C) If the Court finds that the plaintiffs Constitutional rights were violated there is no evidence that such violation resulted from a policy or practice of the County and therefore the plaintiffs cause of action against the County must be dismissed.
21. Officer Beckley testified that the County policy regarding strip searches
required them to be directed by a command officer and only under circumstances where a
felony has been committed. (See Beckley deposition page 23 line 9-page 24 line 5)
(Hogan Felix Declaration Exhibit "L")

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41

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 229 F.Supp.2d 259 (2002)
Nicole SARNICOLA, Plaintiff, v.
The COUNTY OF WESTCHESTER, a Municipal Entity, Westchester County Police Sergeant Thomas McGurn, individually and in his official capacity, Defendants.
No. 01 CIV. 6078(CM).
United States District Court, S.D. New York.
October 23, 2002.
260 *260 Jane Hogan Felix, Office of Charlene M. Indelicato, Westchester County Attorney, White Plains, NY, for Defendants.
James I. Meyerson, New York, NY, for Plaintiff.
MEMORANDUM AND DECISION GRANTING IN PART AND DENYING IN PART THE CROSS-MOTIONS FOR SUMMARY JUDGMENT
MCMAHON, District Judge.
Plaintiff, Nicole Sarnicola, brings this action alleging false arrest in violation of her rights as guaranteed under the Fourth Amendment to the United States and the New York State Constitution. Plaintiff also alleges that she was 261 subjected to an unlawful strip search in violation of her *261 Fourth Amendment rights and the New York Constitution, and that this unlawful strip search was pursuant to an unconstitutional policy of the defendant County of Westchester. Finally, Plaintiff alleges that, even assuming probable cause for her arrest, she was unnecessarily and excessively detained and held in police custody in violation of her rights under the Fourth Amendment. Defendant denies all of these allegations, and moves for summary judgment pursuant to Fed.R.Civ.P. 56. Plaintiff cross-moves for summary judgment pursuant to Rule 56.
FACTS PERTINENT TO THE MOTION
The following facts are undisputed, unless otherwise noted.
On April 26, 2001, Plaintiff, Nicole Sarnicola, drove a silver Dodge Durango from Brooklyn, New York, to a parking lot in Tarrytown, New York. Plaintiff was accompanied by two other passengers, later identified as Michael Tricardo and Frank Rossi. Plaintiff was following a vehicle driven by Gabriel Cruz-Katz, an individual known as a drug dealer by the Westchester County Police.
Sergeant Thomas McGurn is a Westchester County Department of Public Safety Officer with approximately 30 years of police experience, including seven years of experience in Narcotics. He was in charge of the Narcotics Unit on April 26, 2001. On that date, Sergeant McGurn was responsible for coordinating the efforts of numerous police officers from the Westchester County Department of Public Safety and the Tarrytown Police Department in the undercover field "buy and bust" operation involving Gabriel Cruz-Katz. The back-up officers were in communication with Sgt. McGurn and were also responsible for security and surveillance. The officers were positioned in various locations in the vicinity of the CVS parking lot in Tarrytown, New York and the surrounding streets.
The Defendant County of Westchester (the "County") is a municipal entity existing under the laws of the Constitution of the State of New York.
On April 11, 2001, a controlled informant introduced an undercover police officer, Detective Christopher Kelly, to Gabriel Cruz-Katz. The purpose of the introduction was to arrange for future ecstasy purchases.

On April 12, 2001, Detective Kelly met Cruz-Katz at a pre-arranged location in Tarrytown, New York and purchased one hundred ecstasy pills at a cost of one thousand dollars. Also present at the scene as back-up officers, although unbeknownst to Cruz-Katz, was defendant Sgt. Thomas McGurn, Detective Rodriguez and Detective Weather. On April 13, 2001, Detective Kelly again met Cruz-Katz at a pre-arranged location in Tarrytown, New York and purchased one hundred ecstacy pills at a cost of one thousand dollars. Sgt. McGurn, Detective Antonecchia, Detective Rodriguez and Detective Weather were also present, again unbeknownst to Cruz-Katz.
On April 18, 2001, in anticipation of what was to be the third drug transaction between Detective Kelly and CruzKatz, Sgt. McGurn and Sgt. Buonanno of the Tarrytown Police Department, positioned themselves on Route 9 in the Village of Irvington. The Sergeants observed Cruz-Katz driving the same vehicle that he had used on previous occasions. They followed Cruz-Katz into the front parking lot of the Hilton Hotel, where he pulled behind a Lincoln Sedan. A white male got out of the Lincoln and got into the passenger side of the Cruz-Katz vehicle. 262 McGurn and Buonanno observed Cruz-Katz drive *262 to the front overhang of the hotel where the white male leaned over to Cruz-Katz and then exited the vehicle.
Cruz-Katz immediately proceeded to the pre-arranged location in Tarrytown where he met up with Detective Kelly and delivered one thousand ecstacy pills at a cost of eight thousand dollars. Cruz-Katz was observed leaving the location and proceeding directly back to the Hilton's parking lot, where he parked the vehicle and walked into hotel lobby. The white male from the Lincoln exited his car and followed Cruz-Katz into the lobby. Shortly afterward, both subjects left the hotel and returned to their respective vehicles. Lieutenant Emerson, Sgt. McGurn, Sgt. Buonanno, and Detectives Martin, Rodriguez, Pierro and Tkacz were present in the area of the drug transaction as back-up officers.
The fourth pre-arranged meeting between Detective Kelly and Cruz-Katz was scheduled for Tarrytown, New York on April 26, 2001. The Westchester County Police intended to do a "buy and bust" of Cruz-Katz 0907 that is, buy drugs and immediately arrest the seller. Sergeant McGurn was the coordinating officer for this operation.
On April 26, 2001, Detective Tkacz observed the Cruz-Katz vehicle exit Interstate Route 87 and travel north on Broadway in the village of Tarrytown. Detective Tkacz immediately observed that the Cruz-Katz's car was being followed by a Dodge Durango with three occupants. Detective Tkacz radioed this information to Sgt. McGurn. Captain Annis, Detective Antonecchia, Detective Bravo, Detective Clarke, Detective Pierro, Detective Polant, Detective Rodriguez, Detective Rowan, Sergeant Buonanno, as well as other members of the Tarrytown Police Department, were all positioned in various locations around the CVS parking lot in Tarrytown for the buy and bust. Several of the officers were armed with shotguns and dispatched as security personnel. Their function was to watch the street for persons working with the drug supplier who might create a dangerous situation for the police personnel and civilians in the area.
Sergeant McGurn believed, based on his experience, that the car following Cruz-Katz contained Cruz-Katz's drug supplier. McGurn Deposition p. 21, lines 9-25, p. 22, lines 1-25, p. 23, lines 1-7. He further believed that such activity so closely fit with his prior experiences in narcotics transactions that it was a "textbook" scenario. McGurn Deposition, p. 35, lines 17-25, p. 36, lines 1-6. His belief was further fueled by the fact that Cruz-Katz had met with another individual (the white male in the Lincoln) both before and after the third buy went down.
Detective Kelly observed the Cruz-Katz vehicle as it drove past his location while he was parked on Broadway in the Village of Tarrytown at the pre-arranged time for their meeting. Kelly paged Cruz-Katz that he was on his way. Cruz-Katz did not mention that he was driving with any other individuals.
Detective Rowan observed the Cruz-Katz vehicle pull into the CVS parking lot, followed immediately by the Dodge Durango, which was being driven by plaintiff. The two cars were parked next to each other. Cruz-Katz got out of his vehicle and stood at the rear of the car. Then the passengers of the Durango 0907 plaintiff, Tricardo and Rossi 0907 left their vehicle.
There is some dispute as to the specific details, although not the general details, of what happened next. Considering only the undisputed facts, and ignoring every disputed observation, Detective Rowan observed 263 Cruz-Katz, Tricardo, Rossi and plaintiff standing together having a conversation. *263 He could not make out

what was being said. After this, plaintiff and Rossi left the parking lot together, followed by Tricardo and CruzKatz.[1] Rossi continued to observe them until he saw Tricardo and Cruz-Katz walk off to the left and the plaintiff and Rossi walk off to the right. Rowan then lost sight of all four. Rowan Deposition p. 26, lines 21-23, p. 27, lines 9-12.
At about the same time, or shortly thereafter, Detective Kelly, looking through his passenger side mirror, observed Cruz-Katz walking toward his (Kelly's) undercover vehicle through his passenger side mirror. Detective Kelly saw Cruz-Katz walking with two persons he did not know; he thinks they were plaintiff and Rossi. Kelly testified that plaintiff and Rossi looked into his (Kelly's) car and continued walking while Cruz-Katz got in on the passenger side. Kelly Deposition, p. 17, line 25, p. 18, lines 1-9, p. 22, lines 7-25, p. 49, lines 18-25, page 50, lines 1-14. Detective Kelly did not write any of this down in his field report and Plaintiff and Rossi both deny doing any type of "walk-by surveillance" of any vehicle. For purposes of this motion I will ignore all references to this alleged activity.
Detective Kelly drove his vehicle to a side street, where his back-up team was positioned, to complete the transaction. Cruz-Katz was supposed to provide Detective Kelly with 5000 ecstacy pills in exchange for thirty-two thousand five hundred dollars ($32,500). Cruz-Katz told Kelly that the drugs were in his car. They drove to the CVS parking lot, where Cruz-Katz's car and the Dodge Durango vehicle were parked. Cruz-Katz exited Detective Kelly's vehicle, went to the trunk of his car and retrieved a package. Cruz-Katz reentered the undercover vehicle and turned the drugs over to Detective Kelly. Detective Kelly provided Cruz-Katz with twenty-thousand dollars in cash and told Cruz-Katz to count the money. Kelly then got out of the vehicle, claiming that the remainder of the money was in the trunk. When he opened the trunk (the signal to the back-up team that the buy had gone down), Cruz-Katz was taken into custody.
Immediately after Cruz-Katz was taken into custody, Sergeant McGurn questioned him about the identity of the three individuals who accompanied him in the Dodge Durango. After waiving his Miranda Rights, Cruz-Katz stated that Michael Tricardo was his drug supplier and that Tricardo had followed him from Brooklyn so he could collect his money on the spot. Defendants allege that Cruz-Katz also admitted that he and Tricardo held numerous cell phone communications during the ride from Brooklyn, during which Tricardo told Cruz-Katz how the drug deal should take place and instructed him to get it over quickly. Cruz-Katz also alleged that Tricardo repeated these statements when the four individuals were conversing in the parking lot. McGurn Deposition p. 28, lines 11-25, p. 29, lines 1-3, p. 31, lines 7-25, p. 35, lines 7-25, p. 36, lines 1-6. These comments about the cell phone calls and the content of the parking lot conversation are not documented in the field report and plaintiff contends that Crux-Katz did not make these statements until after he was taken to Police Headquarters. For 264 purposes of this motion, I accept *264 plaintiff's version and ignore the alleged comments.[2]
Before McGurn spoke with Cruz-Katz, he directed Detective Rowan to find the three individuals who had driven up in the Durango. All three were located in the vicinity, taken into custody and brought to the Westchester County Department of Public Safety Headquarters. None of them was questioned in the parking lot or in the police cars. Plaintiff arrived in headquarters sometime between 6:30 and 7:00 P.M. While at the headquarters, pursuant to the order of Sgt. McGurn, plaintiff was strip searched by Officer Ana Maria Beckley.
Officer Beckley was called from her post to report to headquarters to conduct a strip search of the plaintiff at approximately 7:00 P.M. Officer Beckley vouchered the plaintiff's jewelry and personal items and then took her to a secluded area in the headquarters to conduct a strip search. Officer Beckley asked plaintiff to take off each item of clothing and to hand it to her. The plaintiff complied with the officer's requests. When the plaintiff had removed all of her clothes, the officer asked her to turn around and bend over. After inspecting her anal area, Officer Beckley allowed plaintiff to re-dress. Officer Beckley made no physical contact with the plaintiff.
Following the strip search, Detective Pierro questioned the plaintiff from approximately 8:20 P.M. until 8:45 P.M., at which time Sarnicola completed a brief written statement. She remained in a room with another officer for several hours, while officers were questioning the three men. Plaintiff was eventually released to the lobby of the headquarters after the completion of the interviews with the three other subjects and after consultation with the District Attorney's Office. Defendants contend that plaintiff was brought to the lobby at approximately 10:40 P.M., and that at approximately 10:45 P.M., she was told that she could leave. McGurn Deposition, p. 69-71, Sarnicola

Deposition p. 49, lines 20-24, p. 50, lines 1-10, p. 50, lines 22-24, p. 51, lines 1-4. Plaintiff believes that it was closer to 11:30 P.M. when she was brought downstairs to the front desk and lobby and released. Plaintiff's Response to Defendant's Rule 56.1 Statement, ¶ 17. Regardless, it is undisputed that plaintiff, along with Rossi, remained at headquarters until approximately midnight, so they could ride back to Brooklyn with two detectives 0907 Detectives Pierro and Antonecchia 0907 who were members of a team of officers going to conduct a search of Tricardo's apartment.
No charges were ever filed against Sarnicola.
On July 5, 2001, plaintiff commenced this action, alleging false arrest, excessive seizure and unlawful strip search in violation of her Fourth Amendment rights and her rights under the New York State Constitution and the laws of New York. Plaintiff also alleged a Monell claim against the County of Westchester, claiming that the 265 unlawful strip search was pursuant to an unconstitutional operative policy of the *265 County encompassed within certain interrelated Westchester County Department of Public Safety General Orders. Additionally, plaintiff alleged a respondeat superior claim against the County of Westchester, and negligence claims against both defendants.
On February 7, 2002, defendants filed for summary judgment, and on February 22, 2002, plaintiff cross-moved for summary judgment, both pursuant to Fed. R.Civ.P. 56.
For the reasons stated below, I grant summary judgment to the defendants on the false arrest claims and excessive confinement claims under both federal and state law. (First and Second Cause of Action; Fifth Cause of Action, in part). I also grant defendants' motion for summary judgment dismissing Sarnicola's state law claim of negligence (Seventh Cause of Action).
I grant summary judgment to the plaintiff on her unlawful strip search claim against Sgt. McGurn, finding a clear violation of her Fourth Amendment rights and her parallel State Constitutional rights and finding no basis for imputing qualified immunity to Sgt. McGurn. (Third Cause of Action; Fifth Cause of Action, in part).
Unfortunately, while the strip search violated the written policy of Westchester County, there is a disputed issue of material fact concerning whether that policy was routinely ignored. If so, then routine strip searches of all felony narcotics arrestees, without probable cause to believe they are secreting contraband, would qualify as a "practice" of the County. In addition, the parties have not sufficiently developed the record on the issues relating to County liability for the strip search under state law. Thus, I deny both parties' motions for summary judgment against the County on the strip search claim. (Fourth and Sixth Cause of Action).
DISCUSSION
I. Summary Judgment Standard
On a motion for summary judgment, the movant is entitled to judgment as a matter of law if there are no genuine issues of material fact. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If a genuine issue for trial exists such that a reasonable jury could find in favor of the nonmovant, then summary judgment must be denied. See Id. at 248, 106 S.Ct. 2505. The court must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in favor of the non-movant. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142, (1970); In re Chateaugay Corp., 10 F.3d 944, 957 (2d Cir.1993).
II. There Was Probable Cause to Arrest Nicole Sarnicola
"Probable cause to arrest a person exists if the law enforcement official, on the basis of the totality of the circumstances, has sufficient knowledge or reasonably trustworthy information to justify a person of reasonable caution in believing that an offense has been or is being committed by the person to be arrested." United States v. Patrick, 899 F.2d 169, 171 (2d Cir.1990). The defendant bears the burden of establishing that his actions were

justified based on probable cause. Raysor v. Port Authority of New York & New Jersey, 768 F.2d 34 (2d Cir.1985), cert. denied, 475 U.S. 1027, 106 S.Ct. 1227, 89 L.Ed.2d 337. To meet that burden the defendant must show that he had a quantum of evidence which amounted to "more than a rumor, suspicion, or even a strong reason to 266 suspect." United States v. Fisher, *266 702 F.2d 372, 375 (2d Cir.1983) (citations omitted).
Probable cause does not require a prima facie showing of criminal activity or a showing that evidence of a crime will, more likely than not, be found. United States v. Cruz, 834 F.2d 47 (2d Cir.1987). Probable cause requires that the possibility of criminal activity or the possibility of evidence of a crime will be found. Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983). Moreover, in determining whether probable cause exists, the experience and expertise of the law enforcement agents should be taken into consideration. United States v. Zabala, 52 F.Supp.2d 377, 382 (S.D.N.Y.1999); United States v. Perea, 848 F.Supp. 1101, 1104 (E.D.N.Y.1994). Evidence "must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement." United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981).
No reasonable juror could conclude that Sergeant McGurn lacked probable cause to arrest plaintiff Nicole Sarnicola on the evening of April 26, 2001 and to detain her pending investigation. While the details are as to what happened in the parking lot are contested, the undisputed facts, and the circumstances surrounding them, give rise to probable cause: Sarnicola drove an SUV following Cruz-Katz, a known drug dealer who had previously sold large amounts of narcotics to an undercover agent; she parked next to him and got out of the SUV with two men (one of whom was later determined to be Cruz-Katz's supplier); she participated in a discussion with the men; she left the parking lot at approximately the same time that Cruz-Katz left with the supplier, and shortly thereafter the pre-arranged "buy and bust" was completed. Sgt. McGurn's belief that the occupants of the SUV were drug suppliers was based not only on these observations, but also on his experience in narcotics enforcement, and his observations of a deal Cruz-Katz had conducted earlier that month. Defendant's 56.1 Statement ¶ 7, 8 (numerous citations to record omitted). These facts and circumstances give rise to probable cause that Sarnicola was a participant in drug activity. That this suspicion later turned out to be unfounded is irrelevant.[3]
Plaintiff argues that her mere "proximity 0907 even with a verbal exchange, without something more affirmative conduct [sic] specifically linking the Plaintiff to a participation in the drug dealing enterprise, is not sufficient to form a probable cause justification for the full custodial arrest." Plaintiff's Memorandum of Law at 14. As this court said several years ago, in Flores v. City of Mount Vernon, 41 F.Supp.2d 439 (S.D.N.Y.1999), ".....the mere fact that a person is physically proximate to others who are suspected of criminal narcotics activity does not give rise to probable cause; there must be something more in order for an arrest to be lawful." Id. at 443. But Sarnicola was not just "physically proximate" to the real criminals, Cruz-Katz and Tricardo. She did in fact engage in affirmative conduct that was closely connected with the crime. She drove Tricardo, the suspected supplier of the drugs, to Tarrytown; she got out of the car with him; and she engaged in conversation with Tricardo and Cruz267 Katz, albeit briefly. That is more than physical proximity 0907 it is *267 the "something more" required to give rise to probable cause. United States v. Patrick, 899 F.2d 169 (2d Cir.1990).
In Patrick, Christopher Patrick and his co-defendant, Linda Taylor, entered the U.S. Immigration Office at Niagara Falls, New York after crossing the international border on foot from Canada. Taylor entered first carrying a knapsack, followed by Patrick who was also carrying a knapsack. They were the only two civilian pedestrians in the office at the time. Patrick, 899 F.2d at 170.
Both were questioned by a U.S. Customs inspector about their citizenship and length of stay in Canada. Both told the inspector that they had accidentally crossed the Canadian border on a bus, and after realizing their mistake had walked back to the United States. Id. The inspector found their answers to be suspicious, and directed them to another inspection point, where their belongings were searched. Cocaine was found in the lining of Taylor's purse. Over the next few hours, both Taylor and Patrick were interrogated, and eventually Patrick made an oral and written statement that a person named "Gino" had asked him to accompany Taylor to make sure that the packages were delivered to Niagara Falls. Id.

Taylor and Patrick were indicted on one count of unlawful importation of a controlled substance and one count of unlawful possession of a controlled substance. At trial, both defendants made motions to suppress any inculpatory statements made after they were detained. The district court denied Taylor's motion, but granted Patrick's motion to suppress those statements, finding that the Customs inspector lacked probable cause to arrest Patrick. Id. at 1700907171. The government appealed the suppression order. Id. at 170.
The Court of Appeals reversed, finding that there was probable cause for Patrick's arrest. The Court of Appeals concluded that the following factors added up to probable cause: Patrick and Taylor had entered the office together, waited in line next to each other, and told the inspector the same suspicious story of how they happened to walk from Canada to the United States. Id. Those facts indicated that Taylor and Patrick were traveling together. Once drugs were found in Taylor's bag, there was enough evidence to indicate that the two were traveling and acting together, which provided probable cause for Patrick's arrest. Id. at 171-172.
The Second Circuit distinguished Patrick's situation from the one in Ybarra v. Illinois, 444 U.S. 85, 91-93, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979). There, police who had a warrant to search a bartender and the premises in which he worked frisked every patron who happened to be in the bar at the time they arrived to execute the warrant. The Supreme Court concluded that there was no probable cause to search the plaintiff, because all the police knew about him was that he was a patron in the bar 0907 he himself had done nothing that might give rise to probable cause. In contrast, Sarnicola was not in the Tarrytown parking lot by happenstance. Police had observed her driving two men to the location while following the car of a known drug dealer and then conversing with all three men. Her actions, not her mere presence, aroused suspicion.
In addition to Ybarra, plaintiff cites Flores v. City of Mount Vernon in support of her proposition. But the egregious facts of Flores are even less helpful to her.
In Flores, a confidential informant told the Mount Vernon police that the owner of a local pub was selling cocaine. A police investigator swore out a warrant based on the informant's report. The warrant authorized the Mount 268 Vernon Police Department *268 to search the pub for evidence of narcotics and to look for a male named Shawn. A detective with the Mount Vernon Police Department executed the warrant on March 20, 1997. On that evening, Flores was working at the pub as a bartender/waitress. The police entered the pub, and spent about an hour and a half searching. Ms. Flores, the only employee behind the bar when the police entered, was ordered to sit on a stool with her hands on her lap. No narcotics were found on or behind the bar where Ms. Flores had been working. Ms. Flores was not frisked while at the pub, but her pocketbook was searched, and no drugs were found. Shawn, the owner of the pub, and three other patrons were arrested for possession of cocaine. However, the police arrested Ms. Flores and took her to Mount Vernon Police Headquarters, where she was strip searched by a female officer. She was not charged and was allowed to leave. Flores, 41 F.Supp.2d at 441-442. Nothing in the facts known to the police gave rise to probable cause that Karen Flores had committed a crime or had drugs on her person. Ms. Flores was arrested simply and solely because she had a job at the bar. That is a far cry from following a drug dealer to the scene of a planned buy, under circumstances that lead police to believe that the occupants of the vehicle are involved in a felony drug deal.
Thus, Sergeant McGurn had ample probable cause to order plaintiff arrested and detained pending further investigation. Defendants' motion for summary judgment on plaintiff's second cause of action, alleging false arrest in violation of 42 U.S.C. § 1983 is granted. Their motion for summary judgment dismissing plaintiff's fifth cause of action, insofar as it alleges the non-constitutional torts of false arrest and false imprisonment, is also granted, since the existence of probable cause negates any such claim as a matter of state law. Bernard v. United States, 25 F.3d 98, 102 (2d Cir.1994); Weyant v. Okst, 101 F.3d 845, 852 (2d Cir.1996); Posr v. Doherty, 944 F.2d 91, 96 (2d Cir.1991). Plaintiff's cross-motion for summary judgment addressed to these claims is denied.
III. Plaintiff was Subjected to an Unlawful Strip Search
By far the most interesting 0907 and complicated 0907 question raised by this case is whether it was constitutionally permissible for Sgt. McGurn to order that Sarnicola be strip searched. It is also the issue least adequately briefed

by the parties, who are, for the most part, content to rest on their analysis of whether there was or was not probable cause to arrest plaintiff. Unfortunately, that issue is far from dispositive.
The facts relevant to the search are undisputed. I conclude that McGurn's search violated Sarnicola's Fourth Amendment rights, because McGurn had no individualized reasonable suspicion to believe that plaintiff was concealing weapons or contraband on her person. Moreover, McGurn is not entitled to qualified immunity; his strip search order violated not only settled constitutional law but Westchester County's official policy concerning strip searches. Plaintiff is entitled to summary judgment against McGurn on this claim.
A. The strip search violated Sarnicola's Fourth Amendment rights because McGurn did not have a particularized reasonable belief that she was secreting contraband.
1. Legal Standard.
The Fourth Amendment prohibits "unreasonable" searches and seizures. For more than two decades, courts 269 have specifically and repeatedly recognized the importance *269 of guarding against unreasonable strip
searches, in view of the degrading nature of this particular invasion of privacy. In Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), the United States Supreme Court ruled that Fourth Amendment reasonableness analysis had to balance the need for a particular search against the invasion of personal rights implicated. Stating that the "test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application," Chief Justice Rehnquist held that the reasonableness of a strip search turned on (1) the scope of the intrusion, (2) the manner in which the search is conducted, (3) the justification for initiating the search, and (4) the place in which the search in conducted. Bell, 441 U.S. at 559, 99 S.Ct. 1861 (citations omitted). And while the Supreme Court stated in 1973 that "full body searches" incident to a lawful arrest were reasonable under the Fourth Amendment, U.S. v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), numerous post-Bell courts have held that strip searches are not automatically justified by a lawful arrest. See Fuller v. M.G. Jewelry, 950 F.2d 1437, 1446 (9th Cir.1991)(holding that a search incident to arrest under Robinson did not extend to a strip search or bodily intrusion) (citation omitted), Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1272 (7th Cir.1983)("[the Robinson court] simply did not contemplate the significantly greater intrusions" of a strip or body cavity search). In addition, the Supreme Court has implicitly recognized that they have not considered the circumstances under which a strip search is justified incident to arrest. See Illinois v. Lafayette, 462 U.S. 640, 644-646, 103 S.Ct. 2605, 77 L.Ed.2d 65 (1983)(discussing the permissible scope of searches incident to arrest, and their holdings in Robinson and United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974), and stating: "we were not addressing in Edwards, and do not discuss here, the circumstances in which a strip search of an arrestee may or may not be appropriate").
A particularized reasonableness analysis under Bell v. Wolfish is required to establish the lawfulness of any warrantless strip search, even one conducted incident to a lawful arrest. Swain v. Spinney, 117 F.3d 1, 6 (1st Cir.1997) A determination of reasonableness must be based on "all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself." United States v. Montoya de Hernandez, 473 U.S. 531, 537, 105 S.Ct. 3304, 87 L.Ed.2d 381 (1985) (citation omitted). The reasonable suspicion test is objective, not subjective 0907 that is, the test is whether a reasonable officer could have particularized suspicion considering the totality of the circumstances. Cartier v. Lussier, 955 F.2d 841, 843 (2d Cir.1992).
The Second Circuit, applying Bell v. Wolfish, has held that a strip search of a misdemeanor arrestee is unlawful unless there is "reasonable suspicion that the arrestee is concealing weapons or other contraband based on the crime charged, the particular characteristics of the arrestee, and/or the circumstances of the arrest." Weber v. Dell, 804 F.2d 796, 802 (2d Cir. 1986) cert denied sub no. County of Monroe v. Weber, 483 U.S. 1020, 107 S.Ct. 3263, 97 L.Ed.2d 762. In the sixteen years following Weber, the Second Circuit has firmly held that strip searches of persons lawfully arrested for minor infractions (misdemeanors and violations) must be justified by an individualized reasonable suspicion of concealed weapons or contraband. See e.g. Shain v. Ellison, 273 F.3d 56 270 (2d Cir.2001); Kaufman v. Rivera, 1999 WL 197199, 1999 U.S.App. LEXIS 6259 *270 (2d Cir.1999); Elk v.

Townson, et al., 839 F.Supp. 1047 (2d Cir.1993). The Second Circuit also requires reasonable suspicion based on individual circumstances to justify strip searches in other contexts. See e.g., Varrone v. Bilotti, 123 F.3d 75 (2d Cir.1997)(reasonable suspicion clearly required for strip search of prison visitors); Security and Law Enforcement Employees v. Carey, 737 F.2d 187 (2d Cir.1984)(reasonable suspicion standard required for strip search of prison guards). While the Second Circuit has not spoken directly to the appropriate test for the validity of a strip search incident to a felony arrest, this Court recently opined that the Court of Appeals would apply the particularized reasonable suspicion test to searches of felony arrestees as well, rather than permitting strip searches of all felony arrestees solely because they had been arrested for a felony. Murcia v. County of Orange, 226 F.Supp.2d 489 (S.D.N.Y. 2002); Dodge v. County of Orange, 209 F.R.D. 65 (S.D.N.Y.2002).[4] There would seem to be no constitutional prerogative to strip search individuals in the absence of particularized reasonable suspicion that they are carrying drugs or contraband.
Official policy statements in the record demonstrate that, at least on paper, Westchester County understands the legal restrictions on strip searches incident to lawful arrests. The County's policy tracks the language of the controlling cases: strip searches are permitted only in cases in which the searching officer had reasonable suspicion to believe that the arrestee was carrying contraband based on the nature of the crime committed, the particular characteristics of the arrestee, or the circumstances of the arrest. An officer who wishes to conduct a strip search must obtain permission from a supervisor, and must conduct the search in accordance with rules designed to protect the privacy of the person searched. General Order No. 42.05 (Exhibit 9 in support of Plaintiff's Cross Motion for Summary Judgment). The policy does not distinguish between persons arrested for felonies and misdemeanors. On its face, such a policy is constitutional.
Ms. Sarnicola was arrested at the scene of a crime because the police had probable cause to believe that she was involved in a felony. She was brought to the jail and strip searched upon arrival, before any further determination was made about her involvement in the crime. She was not mixed in with the general population of a correctional facility. The validity of Ms. Sarnicola's strip search must be justified by individualized reasonable suspicion that Ms. Sarnicola was concealing weapons or contraband, based on her particular circumstances.

2. McGurn did not have particularized reasonable suspicion to order that Sarnicola be strip searched.

While the Westchester County policy does not define "reasonable suspicion," the Second Circuit provided guidance in Varrone v. Bilotti, 123 F.3d 75, 79 (2d Cir. 1997):

"A `reasonable suspicion' of wrongdoing is something stronger than a mere `hunch,' but

something weaker than probable cause." To establish reasonable suspicion, "prison officials must

271

point to specific objective facts and rational *271 inferences that they are entitled to draw from

those facts in light of their experience." The standard requires "individualized suspicion,

specifically directed to the person who is targeted for the strip search..." (citations omitted)

The Supreme Court has also recently discussed the concept of reasonable suspicion (in the context of an investigatory stop, rather than a strip search) in U.S. v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002):

When discussing how reviewing courts should make reasonable-suspicion determinations, we have said repeatedly that they must look at the "totality of the circumstances" of each case to see whether the detaining officer has a "particularized and objective basis" for suspecting legal wrongdoing. (citation omitted)

As long ago as 1978, the United States Court of Appeals for the Second Circuit reviewed factors to be considered in determining the reasonableness of a strip search. United States v. Asbury, 586 F.2d 973, 976-977 (2d Cir.1978) . These include:

1. Excessive nervousness

2. Unusual conduct

3. An informant's tip

4. Information showing pertinent criminal propensities

5. Loose-fitting or bulky clothing

6. An itinerary suggestive of wrongdoing

7. Discovery of incriminating matter during less intrusive searches

8. Lack of employment or a claim of self-employment

9. Needle marks or other indications of drug addiction

10. Information derived from searches of others arrested contemporaneously

11. Inadequate luggage (particular to border searches)

12. Evasive or contradictory answers to questions (citations omitted)

The Asbury court, citing United States v. Diaz, 503 F.2d at 1025, 1026 n. 1 (3d Cir.1974), noted that courts rely upon a combination of factors to determine reasonableness, rather than any single factor standing alone. See also, Johnson v. Harron, 1995 WL 319943 (N.D.N.Y. May 23, 1995) (citing the Asbury factors and considering several in determining reasonableness of a strip search at the border). While Asbury dealt with a Customs border search rather than a custodial search, it relied on custodial search cases in compiling its list of relevant factors, and there is no reason to believe that the Court of Appeals would not find the Asbury factors relevant to a determination of the reasonableness of a strip search incident to a lawful arrest.

The record reveals that McGurn knew no more about Sarnicola when he directed that she be strip searched than he knew when he ordered her arrest. He knew that she drove the alleged supplier to the scene of the buy, got out of her car and engaged in conversation with the alleged supplier and the seller. In other words, he knew enough to have her arrested for her suspected involvement in a drug deal. From his deposition testimony, it seems that he believed a strip search was justified simply and solely because Plaintiff had been taken into custody in connection with a drug deal:

Q: What is the reason that you wanted her subjected to a strip search?

A: The reason she was taken into custody, and as per our GO, that she be searched for weapons

or contraband, and in cases dealing with narcotics, experience tells us all prisoners in dealing with

272

specifically large scales of narcotics they will be *272 searched. (McGurn Deposition, p. 57, lines

1-11)

Q: Other than your general experience, did you have, in this particular matter, a specific belief, in the specific context of this matter, that she was secreting drugs independent of the fact that you were authorizing an arrest in a felony drug matter?

A: Well, it's a felony drug matter and it deals with contraband and weapons, so there is also a security issue here too, so we searched for both...I'm trying to explain that it's a procedure. Am I going to guess whether she has anything on her or not? No, I couldn't do that. (emphasis added) (McGurn Deposition, p. 59, lines 2-17)

Q: Independent of the fact that this was an alleged felony transaction, did you have any particular belief that particular day that she was particularly and specifically secreting drugs?

A: No more than any other subject I would have arrested... (emphasis added)(McGurn Deposition, p. 60, lines 6-11)

Because he did not harbor any particular belief that Sarnicola was secreting drugs, McGurn did not believe that he had any reason to order what he referred to as a "cavity search" on Sarnicola.[5]

A: I didn't deem [a cavity search] necessary.

Q: Why not?

A: Because we were dealing with a large amount of narcotics. I was looking for secreted narcotics. When other parties are included they usually have only a little on them, and usually a cavity search is done either in prison when prisoners are transporting a small amount of drugs. I didn't think that applied here. (McGurn Deposition, p. 58, lines 5-16)

However, Sgt. McGurn believed that County Police regulations authorized him to have Sarnicola strip and bend over, based solely on the fact that she had been arrested on a felony drug charge:

Q: So pursuant to the regulations, this offense of a drug transaction, felony in nature, authorized you to subject her to a strip search, correct?

A: Oh, yes.

Q: Other than the rules and regulations which authorized you to subject her to a strip search to

273

determine *273 whether or not she was secreting drugs, and other than the fact that there was this

felony, alleged felony transaction, drug transaction, was there anything else that caused you to

have her strip searched?

A: I think that is enough.

A diligent search of the record fails to turn up evidence of any other objective fact that might have justified the search. There is no evidence that Sarnicola refused to identify herself or behaved suspiciously; no evidence that she was dressed in a way that would have allowed her to secret contraband on her person; no evidence that she walked or stood in a way that suggested she was secreting contraband; no evidence that she was a drug user; and no evidence that anyone else advised the police that she might be carrying drugs or weapons. Furthermore, no one has testified that the circumstances of this particular drug buy suggested that Sarnicola was carrying contraband on her person. One could easily argue that the circumstances suggest precisely the opposite. She was accused of participating in a pre-arranged buy of a large quantity of drugs, not in a street sale from a private stash. She was not the seller. The 500 ecstacy tablets that the County Police had arranged to purchase had already been delivered to the undercover agent, in a wrapped package. She was apprehended, without warning, at the scene of the crime, and had no opportunity to hide anything. Finally, no pat-down or a less intrusive search of her belongings incident to her lawful arrest turned up any drugs or other contraband, which might have alerted authorities to the possibility that more was being carried elsewhere on her person. Indeed, it appears that the strip search, including the visual inspection of her buttocks in a bent-over position, was the first and only search of plaintiff.

So a reasonable trier of fact must take Sgt. McGurn at his word. He ordered Sarnicola strip searched because she had been lawfully arrested for a felony involving narcotics. The question is whether that is enough to justify a strip search. The answer, I conclude, is no.

In the past, courts (including this one) have stated in passing that being arrested for a narcotics offense could give rise to an inference that the arrestee was secreting drugs on her person. See, e.g., Campbell v. Fernandez, 54 F.Supp.2d 195 (S.D.N.Y. 1999), Elk v. Townson, 839 F.Supp. 1047, 1052 (S.D.N.Y.1993).[6] However, to the best of my knowledge, no court has ever held that being arrested for a narcotics-related crime automatically gives rise to reasonable suspicion that drugs are being carried in an arrestee's body cavities, so as to justify a strip search or visual body cavity inspection like the one performed on Sarnicola. An automatic justification for strip 274 searches based on an arrest for a *274 drug-related crime would be inconsistent with the legal concept of reasonable suspicion based on the totality of the circumstances, as discussed above. See generally, United States v. Arvizu, 534 U.S. 266, 266, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002)(holding that the lower court's

"evaluation and rejection of certain factors in isolation from each other [in evaluating reasonable suspicion] [did] not take into account the `totality of the circumstances'") New York State courts have found that factors other than being picked up in a drug operation are required to establish particularized reasonable suspicion that an arrestee is secreting contraband on his person. See People v. Jennings, 747 N.Y.S.2d 235 (2d Dept.2002) (evidence seized in strip search suppressed where record demonstrated that officers strip searched all occupants of automobile where drugs had been found without particularized suspicion that this defendant was carrying drugs and despite fact that less intrusive pat down revealed no contraband); People v. Taylor, 294 A.D.2d 825, 741 N.Y.S.2d 822 (4th Dept.2002) (defendant lawfully strip searched at station after officer discovered crack pipe in his pocket and observed him moving legs and torso in a suspicious way). Other federal Circuits have also held that a drug arrest does not automatically supply reasonable suspicion for a strip search. Foote v. Spiegel, 118 F.3d 1416, 1425 (10th Cir. 1997)("the mere fact that [Plaintiff] was arrested for driving while under the influence of drugs does not justify the strip search...even if there was probable cause to believe Foote was under the influence of marijuana, there was no particularized reason to believe she was hiding marijuana on her person)"; Swain v. Spinney, 117 F.3d 1 (1st Cir.1997)(the fact that the plaintiff dropped a baggie of marijuana at the scene of the crime did not justify a strip search); see generally Kelly v. Foti, 77 F.3d 819, 822 (5th Cir.1996)(holding that a strip search was not objectively reasonable because there was no "individualized suspicion," and stating that "pure speculation does not create a reasonable suspicion; nor does a generalized fear of a category of arrestees")(emphasis in original).
Here, Sgt. McGurn had no particularized reason to suspect that Sarnicola was secreting drugs on her person. He ordered a strip search simply and solely because Sarnicola was arrested for suspected involvement in a drugrelated felony. That does not even comport with County Police policy, let alone pass constitutional muster.[7]
As was true of her false arrest/imprisonment claim, plaintiff asserts a parallel state law claim for unconstitutional search. As is true of the false arrest claim, the parties fail to brief the state law issues raised by the claim. (Plaintiff's Fifth Cause of Action) Neither party has discussed the state law claims in their briefs. Plaintiff does not 275 ever specify what laws or provisions of the Constitution she believes *275 were violated, although in this case it is presumably Article I, Section 12 of the New York State Constitution, which parallels the Fourth Amendment. As this court recently discussed in Murcia v. County of Orange, 226 F.Supp.2d 489 (S.D.N.Y.2002) there is no indication that the New York State Constitution affords any greater protection for strip searches than the Fourth Amendment of the U.S. Constitution. Murcia, 2002 WL 31245264, at *10. By the same token, it affords no less. Thus, a search that violates the Federal Constitution necessarily violates the State Constitution. Plaintiff is entitled to summary judgment on her unconstitutional search claim under New York law.
B. Sgt. McGurn is not entitled to qualified immunity.
As to the federal unreasonable search claim, Sgt. McGurn contends that he is entitled to summary judgment on the ground of qualified immunity.[8] Government officials performing discretionary functions are entitled to qualified immunity from federal constitutional claims of false arrest and false imprisonment "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, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)(emphasis added). Or, put otherwise, a police officer is immune from Federal constitutional claims when he performs a discretionary act based on a mistaken but objectively reasonable belief that his conduct is constitutional. Finding reasonable suspicion to conduct a strip search, like finding probable cause to arrest, is a discretionary act within a police officer's official capacity. Hunter v. Bryant, 502 U.S. 224, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991). Therefore, an officer who conducts a strip search is entitled to qualified immunity if officers of reasonable competence in the same circumstances and with the same knowledge could disagree whether a strip search was constitutionally justified. See Lee v. Sandberg, 136 F.3d 94, 102 (2d Cir.1997); Anderson v. Creighton, 483 U.S. at 641, 107 S.Ct. 3034. In the probable cause context, this mistaken but objectively reasonable belief has recently been referred to as arguable probable cause. See, e.g., Coons v. Casabella, 284 F.3d 437, 441 (2d Cir.2002); Cerrone v. Brown, 246 F.3d 194, 202 (2d Cir.2001); 1A Martin A. Schwartz & John E. Kirklin, Section 1983 Litigation Claims and Defenses § 3.21 (3d ed.1997).

Here, Sgt. McGurn, by his own admission, ordered a strip search without having the slightest reason to suspect that Sarnicola was secreting drugs on her person. No officer of reasonable competence could have thought that ordering a strip search without individualized reasonable suspicion was justified. Any rational jury would find that McGurn's order, which overtly violated written County policy, was "so flawed that no reasonable officer would have made a similar choice." Lennon v. Miller, 66 F.3d, 416, 425 (2d Cir.1995)(finding qualified immunity because a rational jury could not find that officers judgement was thus flawed). Sgt. McGurn is not entitled to qualified immunity for authorizing the strip search of Nicole Sarnicola.
IV. No Reasonable Trier of Fact Could Find that Plaintiff's Confinement was Excessive
There is no significant difference of opinion between plaintiff and defendants concerning her detention. She was at County Police Headquarters for at most five hours. During that time, she was interviewed and the three men 276 arrested *276 with her were interviewed. When all the interviews had been conducted, plaintiff was free to go. She lost an evening out of her life. No reasonable juror could conclude that she was detained for an unreasonable period of time. Defendants are entitled to summary judgment dismissing plaintiff's claims of excessive detention, whether asserted under federal or state law.[9]
V. Plaintiff's Claim Against Westchester County Cannot Be Dismissed on Summary Judgment.
Plaintiff's Fourth Cause of Action alleges that Westchester County is liable to plaintiff because her arrest, excessive detention and strip search were undertaken pursuant to policies and practices of Westchester County. Monell v. Dept. of Social Serv. of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). As I have found no wrongful arrest and no excessive detention, the claims against Westchester County on these grounds necessarily fail. The same is not true of the strip search claim, as to which plaintiff has been granted summary judgment against McGurn.
As discussed above, Sgt. McGurn's actions did not accord with the written strip search/body cavity search policy of Westchester County, which requires reasonable suspicion based on the circumstances of the case. See General Order Number 42.05, Exhibit 9 in Plaintiff's Cross Motion for Summary Judgement. However, while the search was a violation of the written policy of Westchester County, it may have been undertaken pursuant to the actual practices and usual customs of the Westchester County police. The deposition testimony of both Sgt. McGurn and Officer Beckley suggest that strip searching all felony narcotics arrestees (possibly including a visual body cavity search) was a routine practice of the County Police. McGurn Deposition, p. 57, lines 3-8, p. 59, lines 8-11; Beckley Deposition, p. 23, lines 17-25, p. 24, lines 1-22. The potential contradiction between the policy and the practices of the Westchester County Police preclude summary judgement.
While there is no Federal respondeat superior liability for the actions of a municipal defendant, New York State law permits the imposition of derivative liability on a municipal employer. Plaintiff seeks to impose such liability on Westchester County in her Sixth Cause of Action. However, the parties did not bother to brief the State law issues, and because the search violated written County policy, the County may have a defense to liability, depending on a jury's findings about custom and practice. Therefore, summary judgement is not warranted on the Plaintiff's Sixth Cause of Action, either.

VI. New York Does Not Recognize A Negligence Claim on These Facts, So Defendants Are Entitled to Summary Judgment Dismissing the Seventh Cause of Action
277 Plaintiff's seventh and last cause of action purports to sound in negligence. *277 However, false arrest, false imprisonment and unconstitutional search (or its attendant torts, assault and battery) are not acts of negligence, and plaintiff cannot recover for them under general principles of negligence law. Shea v. County of Erie, 202 A.D.2d 1028, 609 N.Y.S.2d 473 (4th Dept. 1994); Russo v. Village of Port Chester, 198 A.D.2d 408, 603 N.Y.S.2d 582 (2nd Dept.1993); Stalteri v. County of Monroe, 107 A.D.2d 1071, 486 N.Y.S.2d 555 (4th Dept.1985); Boose v. City of Rochester, 71 A.D.2d 59, 421 N.Y.S.2d 740 (4th Dept. 1979). Defendants are entitled to summary judgment dismissing this claim.
CONCLUSION
Plaintiff is granted summary judgment against defendant McGurn on her Third Cause of Action and on her Fifth Cause of Action as related to the strip search. Defendants are granted summary judgment dismissing the First, [10] Second, and Seventh Causes of Action, and the remainder of the Fifth Cause of Action. The cross-motions for summary judgment on the Fourth and Sixth Causes of Action against Westchester County are denied.
The parties are directed to contact the Court with dates when they are available to try the issue of County liability and damages.
This constitutes the decision and order of the Court.
[1] Detective Rowan testified that he observed the four individuals to appear to exit the parking lot together. He also claims to have seen the three men "high five" each other. As plaintiff disputes these contentions, I ignore them for purposes of the motion. It is undisputed that there was at least a brief interaction in the parking lot. Plaintiff's Rule 56.1 Statement, p. 16.
[2] The field report states as follows:
On the above date [4/26/01], at approximately 1800 hours, this writer read suspect, Cruz-Katz his Miranda Warning. This took place in the writer's vehicle at the scene of the Cruz-Katz arrest, in the Village of Tarry-town. Subject Cruz-Katz was then asked if he would cooperate, which he then stated yes to this writer that he would. At this time, I asked subject Cruz-Katz who gave him the five thousand (5,000) pills of ecstacy, subject Cruz-Katz stated Mike. I asked if Mike came up in the silver Durango, he stated yes. Subject Cruz-Katz also stated that subject Mike followed his vehicle from Brooklyn because Mike wanted his money for the five thousand pills. (PX 4)
[3] It is also irrelevant whether Cruz-Katz told police officers that he spoke with his supplier during the ride from Brooklyn on the street or later, at the police headquarters. While this information would cement the question of probable cause, the dispute of when it was communicated is not material, because the information that was indisputably available to the arresting officers was legally sufficient. See United States v. Patrick, discussed below.
[4] In both Murcia and Dodge, this court noted that the Supreme Court itself has held that "the assumption that a `felon' is more dangerous than a misdemeanant" is "untenable" Tennessee v. Garner, 471 U.S. 1, 14, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) cited in Dodge, 209 F.R.D. at 73, Murcia, 2002 WL 31245264, at *4.
[5] Sgt. McGurn's terminology is confusing, to say the least. He agreed in his deposition that the "ordinary definition of [the] term [strip search]" includes having the subject remove all of their clothes, then telling them to turn around and bend over. (McGurn Deposition, p. 67, line 23-25; p. 68, line 1-2). He differentiates this from a

"cavity search," which he defines as "someone checking the person's cavities for narcotics." (McGurn Deposition, p. 68, lines 3-8). He apparently does not consider it a "cavity search" when a naked woman is asked to bend over 0907 a maneuver that has but one purpose: to better expose the anal area to visual inspection.
The decision in this case rests not on linguistics, but on the acts authorized by Sgt. McGurn. However, I note that the case law reveals stark and significant discrepancies in the definitions of terms such as "strip search" and "body cavity search." Compare, e.g., Dodge v. County of Orange, 209 F.R.D. 65, 69 (S.D.N.Y.2002), with Gonzalez v. City of Schenectady, 141 F.Supp.2d 304, 306 n. 3 (N.D.N.Y.2001). It is obvious that there is a pressing need for clarity and uniformity in the terminology used to describe strip searches, so that courts and officials share an understanding of what is permissible under the Fourth Amendment. See William J. Simonitsch, Visual Body Cavity Searches Incident to Arrest: Validity Under the Fourth Amendment, 54 U.Miami L.Rev. 665 (2000)(discussing the confusing linguistics in strip search jurisprudence, and calling for uniformity).
[6] The facts of both Campbell and Elk provided more compelling bases for individualized reasonable suspicion than the facts here. In Campbell, during the execution of a search warrant pursuant to a joint federal/state drug investigation, plaintiff was found in a non-public place (the basement of a store) that had been the site of the stash in at least one of several controlled buys made by the DEA. Also, he may or may not have conformed to the description of a man whose search was specifically authorized by the warrant. And in Elk, the plaintiff was taken from a vehicle redolent of marijuana, and from close proximity to a canister of marijuana. Here, on the view of the facts most favorable to plaintiff, Sarnicola did no more than drive a car and be seen in conversation with the seller and his supplier. On the best view of the facts for defendant, Sarnicola overheard conversations about the deal while she was in the Durango. None of that suggests that she was concealing drugs on her person.
[7] Following the submission of briefs, the Court asked for additional briefing on a different constitutional issue, which had not previously been raised by either side: whether McGurn should have obtained a warrant prior to conducting a strip search of plaintiff incident to her lawful arrest, under the reasoning of Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Defendant responded that the holding in Schmerber had no bearing on this case. I disagree. "Strip searches," particularly those that include visual searches into body cavities, areas like the anus, implicate the human dignity and privacy interests that the Supreme Court was concerned about in Schmerber. However, because I conclude that the search was unconstitutional based on a lack of individualized reasonable suspicion, and find that McGurn is not entitled to qualified immunity as a matter of law, I dispose of this case without ever reaching the fascinating 0907 and difficult 0907 question of wether the search was also unconstitutional under Schmerber.
[8] New York State does not recognize the doctrine of qualified immunity in connection with constitutional torts committed by State officers.
[9] Although both parties brief the excessive detention issue, it is hard to know exactly what those claims are to be found in the amended complaint. Plaintiff does not assert a separate cause of action for excessive detention. It may fall under her first cause of action, which alleges that unspecified "acts and practices" as described in the complaint violate her constitutional rights. Indeed, since the second cause of action alleges false arrest and third alleges strip search without probable cause, any excessive detention claim that purports to be brought under Section 1983 would have to fall within the ambit of the first cause of action (which is otherwise redundant). Plaintiff's state law false imprisonment claim (Fifth Cause of Action) may also be intended to encompass her allegation of excessive detention. Wherever it is lodged, it fails.
[10] To the extent that the First Cause of Action, which asserts in general terms that plaintiff's constitutional rights were violated, encompasses her claim of unlawful strip search, it is dismissed as duplicative of the Third Cause of Action.
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 RAlI

*

n

FEMALE PRISONERS: SEARCH, DETENTION, TRANSPORTATION

ISSUE DATE: 01/01/92

EFFECTIVE DATE:
06/05/92

REVISES: IV. A. 4

SUPEFCEDES: 1/92 I S S U E

DISTRIBUTION:

REEVALUAT1ON:

PAGE:

ALL MEMBERS
ISSUING AUTHORITY:

ANNUALLY
COMMISSIONER LOUIS S. D'ALISO

1 of 2.
"v^ (j/ &%<

I.
II.
Tl
in. IV.

PURPOSE:

To clearly define the policy and procedures of the Westchester County

Department of Public Safety for searching and processing female

prisoners at: headquarters.

. ••

BACKGROUND :

- - V ••;..

Case Law and the N.Y.S. State Commission of Correction, through its Codes, Rul-esi and Regulations (Sections £7502.1 -'7504 . 1),' dictates how a .female;prisoner should be searched and supervised. Rights of privacy must; be-respected. The observance of these Rights should not be interpreted, however, as a restriction, which prohibit'^' a' police officer from! frisking (patting down) a female prisoner af the time of arrest; or t<b remove weapons or evidence which can be destroyed or lost enroutefto Headquarters. {See\General Order Wl

POLICY:
The search and detention of female''prisoners must li>e /conducted and supervised, • respectively; by a'female pol'ic^ or peace .'officer.

PROCEDURE:
A. As soon is I' Desk Officer is notified that a''fefliale prisoner is going to|be\cletained_ in our lock-up he e W H :

1. O r d e i a female, officer, who is on^-duty-,^ to conduct the search

of tike "prisoner and assist in other required processing.

i

. .

"-.

r'

' " • • • — — - "i

' .

'V '-

•

•

2. When a female off;icer..id not- on duty, the Desk Officer shall

contact the supervTSor*~at"~EherWomen's Unit of the Westchester

Countiy Department'^df Corrections, and request that a female.

Correction Officer respond to Headquarters to conduct the •

search and other processing as required. Transportation

shall be provided for the Correction Officer, by the Desk

Officer, if necessary.

WESTCHESTER COUNTY DEPARTMENT OF PUBLIC SAFETY
WOPO 100
II

Page 2 of 2 Pages

IV.
Tl

PROCEDURE:.(Continued)
Wh0n a female Correction Officer cannot respond to Headquarters, then the female prisoner will be transported to thq Women's Correction Unit. Police Officers transporting the prisoner shall:
a. Obtain a blank copy of WCPD-12S, Property Receipt Form on which to record any additional property found on the prisoner.
b. ' Obtain the name and shield number of the Correction Officer conducting the search and enter same in the
: Headquarters Cell/Prisoner Inspection Log, which is kept by the Desk Officer.
When possible female prisoners will be transported by female officers. When a female officer is not available, TWO male officers will be assigned to the transportation. In NO case wilJL a sole male officer transport a female prisoner.

B. When a female prisoner is to be placed in the headquarters detention cell and no female officer is on duty, the Desk Officer should <j;all in an off-duty female Police Officer or a part-time matron public Safety Officer - (See Cardex File Under "Matron)

C. Only female officers or matrons will monitor (by video) a female prisoner. The desk Officer will lock in the female cell on, monitor|11 (Extreme left side monitor.) once the picture is locked in, the Desk Officer will turn off his monitor 11. He will keqp all other video monitors turned on.

D. Communiqations personnel will turn off monitor 11 in the radio room, (ijeft side monitor located in console.)

The female officer or matron responsible for viewing the female

prisonerj will turn on the monitor located on top of the console

facing tjhe spare switchboard in the rear section. This is the

only moriitor that will be used to view female prisoners. The key

to the tjhe female's cell must be in the possession of the female

officer ior matron and no male person shall be permitted to enter

the area where female prisoners are detained unless accompanied

n

by the matron. (Section 7504.1 N.Y.C.R.R.)

E. When possible, the Desk Officer should expedite the release of

the prisoner by R.O.R., bail or arraignment.

G.O. 42.06

Sarnicola v. County of Westchester
VB • • • • IIHHBI • • • • • H ^ l l ^ 11^
PN-NY-002-001

 
 0

SUBJECT:

41.01

PRISONER TRANSPORTS; SEARCHING/HANDCUFFING

ISSljJE CV\TE:

EFFECTIVE DATE:

REVISES:

SUPEFCEDES:

01/01/92

06/05/92

G.O. 4 1 . 0 1

1/92 ISSUE

DISTRIBUTION:

|

REEVALUATION:

ALL MEMBERS ISSUING AUTHORITY: •

10/00

LOUISJS. D'ALISO, COMMISSIONER/SHERIFF

I.

PURPOSE:

To establish the policy and procedure of the'Westchester County Department of Public Safety, to guide officers in the searching and and cuffing of persons taken into custody. ;

II.

POLICY: ;

...••••••

••'

Safety a'rjid security are the main consTderati'on d~n,dealing^ with persons vj-ho have'r been takfen into cus't^bdy; s"•*••>'";j

SAFETY - '' ,.-Of the officers, persons in custody,/and the general

/( public;

;

-

_,.•'"'

SECURITY1V i

The preyen6.i^n p£^$sc$zi&. ^ Of f.;:;cers must effectively

neutralize any threat which ,the subject may.pose, using

only, tfte minimum amount of -restraint necessa'ry to

accomplish this purpose. N.

i\

i n . PROCEDUREif :'

' .v

t$^

A. S-e'ar'crt'iaiq Prisoner'spin

'" '•Ft:'.

0.

• ' ) •A M ) If v /**~*/ ••••*

1 > T d y i e i a l l y , the;iperson tiakenpinto Custody/£h#/l/._be frisked

'•."•;iinnved'iately affeet apprehension arid jfiandc'^f f e'd.;.'. When

assistance a r r i v e s , a ful]^,search ,&f t*h-y>'^'-/^i^s^^nXe""r—s-hva.-ll be

a xfoEt^mporaheous incident iaf a
be-eaecked for ariy be-^usexl po> assault or

/fc&stodial arrest of rtment thereof
or devices which f«0Bilitate escape.

^ ^

»

/

Tie arresCtng^'b^f^.car'a's fi*Lly're4lp't)nsible for his prisoner

uiktil that ^ison^r^gL'ft ^wfjCQly. furhed over to another police

officer, a legl*timate~3etentibh facility or an agency which

is, empowered to adoe^jf responsibility for the prisoner. The

arresting officer wilImproperly document such transfer of

ciistody.

WESTCHESTER COUNTY DEPARTMENT OF PUBUC SAFETY

n
1

2 of 8
4. Whenever and wherever taking custody of a prisoner, the transporting officers' responsibility is to search /or research the prisoner for weapons and/or contraband.
B. Searching Prisoners of Opposite Sex: 1. Prisoners will be searched by officers of the same sex whenever possible. (See G.O. 42.06)
2. Rejasonable grounds must exist to believe that the prisoner hajs in her possession property (weapons, drugs, other evjidence) which may be hidden about the person and there is imminent danger that it may be utilized, discarded, or otiherwise destroyed.
3. Sejarches in such cases shall be conducted:
a. So as to scrupulously avoid any appearance of impropriety.
b., With the utmost regard to decency and privacy.
c. In the presence of a superior and/or other witness (if possible).
4. Under no circumstances shall male officers engage in a strip search or body cavity search of a female prisoner.
C. Handcuffing Prisoners:
1. Generally, all prisoners shall be handcuffed; the exception be^.ng where the age, infirmity, injury or other specific condition of the defendant renders him or her relatively harmless.
2. Whenever possible, prisoners will be handcuffed with the harjids behind the back, palms out, and double locked. (Exception - when a transport belt is used, the handcuffs wijl be placed through the ring on the belt and secured with 4 hands in front of the prisoner or when a waist chain with box is used the cuffs will be secured in front, double locked and the black box placed over the cuffs and secured to h^ chain.).
When applying handcuffs, the double locking pin should be accessible from the top.
i TheJ handcuffs shall be secured upon the wrists and adjusted so as to prevent the prisoner from slipping out, but not so tight as to cause discomfort or injury.
G.O. 41.01

Sarnicola v. County of Westchester
•••• ••••• ••••Maa ••••••• •••••••• s a w i
PN-NY-002-002

 
 n

SUBJECT:

*

PRISONER DETENTION: RULES AND PROCEDURES

ISSUE Cy\TE:

EFFECTIVE DATE:

REVISES:

SUPEFCEDES:

DISTRIBUTION:

06/15/95

06/27/96

IV.C.6.a.,b.

6/95 ISSUE

REVALUATION:

PAGE:

ALL MEMBERS ISSUING AUTHORfTY:

7/97

1 of 5

LOUIS S . D'ALISO, COMMISSIONER/SHERIFF

I.

PURPOSE;

To establish procedures which will promote-the1 safety aricll welfare of

prisoners, who are detained in detention cells; of the Westchester

CountyJ Department of Public .Safety, and the safety of theg officers

who tfpar the custodiaj^responsibilities.

'\

§$

II

BACKC

•A

ii|? custody who must iJ^e detained in tyjejrlocKupf 4fe guaranteed certain rights and

protection under the faw. State Commission of Correctio'n regulations

u deforje stand^aaPorphe^.._ 'i [Wstodyj/treatment, super-

vision] and dlscipline^-of

ned^in such ldckup

f a c i ^ t i e s (N.y:B^ Corr.'

thorough 7511)^

POLK

i

All pi£j.i.sdn*e-r-S' ;! s h a l l be humanely, t r e a t e d '^nd closely'moniSored while

iinn offffiicciiaall''.cuusttooddyy tooii pi— ro'tec*t• •t*h•*e•-i•»r- s_ _a^f_ei .t'y- i-. and> w. . ^^1l^fa2 r— e^ta. n_ _dj *t.h!.a_»t. _o^fr

partmerit personnleil involved. 'rv

'A {• VL / '>?

IV. PROCEbUREg'vi \

1 !,

^~T*-«4\

' %

A. Cond'iti<5n*|of PrisonertV^

'—

;

•*<

/

1.

e!Jchibits any signs of ,££-ajie>s8'ir injury or loss

iuk ot complains of siroK.I ^edl^cal attention will

*;L ^^ce/ktip^^^iMch

signs develop

.,..-_--A...^:v/. *3Fa t t e n t t o n w i l l b e

^

will be paid to

indivijdua!]

ugj^fy intoxicated. These

will be sul

piaicohol reading of greater

than .15 or

oms of acute alcohol

poisoning/ tor drug/alcohol withdri

r, • coma and shows signs of is physically incapacitated.

WESTCHESTER COUNTY DEPARTMEIVT OF PUBUC SAFETY

Page 2 of 5 Pages

IV. PROCEDURES: (Continued)

2. If a required examination by competent medical personnel is delayed, constant supervision of the prisoner must be provided until such time as the examination can take place.

3. When a prisoner is received from other authorities and is- in apparent need of medical attention, the Desk Officer will not accept custody of that prisoner until he has been afforded proper medical attention by that other authority.

4. A physical Condition form must be completed for each prisoner before he is placed into a detention cell.

B. Search of Prisoner Before Incarceration;

n

1. When a prisoner has been arrested and will be detained by incarceration at headquarters, the Desk Officer shall instruct the officer to conduct a Strip Search, as.per General Order No. 41.03. The searching officer shall remove from the possession of the prisoner all personal property, except essential clothing, with particular attention to:
a. items of contraband b. evidentiary items c. items that could be life threatening d. items that could facilitate an escape e. items which can cause injury to self or others or damage
property

2. Handling of a prisoner's property will be in accordance with Genejral Order No.41.06 (Handling of Prisoner's Property.)

C. Inspections:

1. Firearms will not be worn or carried in and about the detention cell area when there are prisoners lodged therein.

2. All doors must be kept locked whenever a prisoner is detained

in the holding facility. The inspecting! officer will

.physically check each door to ensure .tfiattallidoors are in

f a c £ ; l o c k e d , ; .'> - . • . . ..•;.• • ioi ;b^i>iv.i2-.i

• i r t :: i

.•••

.

W

i\i

3. Desk Officers shall be responsible-for an^inspection of

prisoners att.the beginning.of their tour 6f duty and every

thirty (30) minutes thereafter.. Exception are^permissible in

rn

_,.,.0,0. 42.0%
•"'i

Sarnicola v. County of Westchester

WH • • • • • IHH

• • • • • ^BlIH • • * • I

PN-NY-002-003

 
 Sarnicola v. County of Westchester

n

•••• ! • • • • • •• » • • ••••••• •••••••• •• « • I
PN-NY-002-010

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

NICOLE SARNICOLA, PLAINTIFF vs
THE COUNTY OF WESTCHESTER, etc., et al.,
DEFENDANTS

01 Civ 6078 (CM)(MDF) AFFIDAVIT OF NICOLE SARNICOLA

STATE OF NEW YORK
SS. : COUNTY OF NEW YORK

n

Nicole Sarnicola, being first duly sworn, deposes and says:

1. I am the Plaintiff in this action.

2. I execute this Affidavit in order to provide some additional information related to my arrest on April 26, 2001 and in order to clarify responses which I gave in my deposition to the extent that, in reviewing my deposition transcript, some clarification may be appropriate.

3. When I was arrested on the street in Tarrytown, New York on April 26, 2001, I was not subjected to a frisk or any kind of search before I was placed in the police vehicle and transported to a police facility.

4. Until I was subjected to the strip search on April 26, 2001 at the Westchester County Police Department facility, I was never subjected to any kind of search. I was not subjected to any kind of frisk search or pat search.

5. When I was arrested, I was not given or read any rights;

and I did not receive any rights until some point in time when I

was in the Westchester County Police Department facility where I

was strip searched and subjected to an interrogation. My

recollection is that, prior to being strip searched, I was given my

rights. I was only given my rights once and it was while I was

n

waiting for the female officer to arrive before I was then subjected to the strip search. I was not given my rights, again,

n

at the time that I was interrogated and then wrote out'w$r although, at the time I wrote out my statement^I did document related to rights. However, I was first given the rights-

-and only given the advisement of my rights, prior to the female

officer coming to the facility in order to conduct my strip search.

6. When I was approached by police officers, I was asked where I was from; and I responded indicating "Brooklyn". I was not asked my name and I was never asked why I was in Tarrytown or what I was doing or what my purpose was in being in Tarrytown.

7. During the journey from Brooklyn, New York to Tarrytown, Michael Tricardo did speak on his cell telephone. The only thing that I heard him say or ask was when we would arrive.

8. When I exited the vehicle in the parking lot in Tarrytown, I did not come together with any of the three other individuals [Michael Tricardo, Gabe Name Redacted Frank Rossi]. I did not see any huddle of individuals; and I was not a participant in a huddle type configuration.

9. I did not observe any individuals giving high fives. I did not give any high five to anyone.

10. As I got out of the vehicle, I indicated that I was going to the bathroom, having indicated that I needed to go to the
n bathroom while I was in the car. 11. I asked Frank Rossi if he wanted to go with me and he indicated he would.

12. I was not part of any other exchange and I did not hear or observe any other exchange between any of the individuals present in the parking lot. I do not even know whether there were any exchanges between Michael Tricardo and Gabe Name Redacted

13. I walked out of the parking lot with Frank Rossi. My belief was that Gabe Name Redacted and Michael Tricardo were in the parking lot behind me and Frank Rossi and it was my belief that they would be in or about the parking lot when, after going to the bathroom, Frank Rossi and I returned to the parking lot. My belief was that we would, then, go to a restaurant which, as I understood it from the beginning, was the reason why we had traveled to Westchester [what I believed was the Yonkers area].

14. I simply had to go to the bathroom; and I did not think in any manner or fashion about going to the restaurant for that purpose. I simply wanted to find a place, where I could go to the bathroom, as soon as possible.

15. Frank Rossi and I walked out of the lot together. We

o

exited right and walked about a block to a store which sold tea;

n

and it was in that store that I found a bathroop. 16. Frank Rossi and I did not walk with Gabe Name Redacted out of

the parking lot and we did not walk with him on the street.

17. The last time that I saw Gabe Name Redacted and Michael Tricardo they were in the parking lot where I believed I left them [at some location] when Frank Rossi and I exited right on to the sidewalk and where I expected them to be when I returned with Frank Rossi from the store where I anticipated going to the bathroom.

18. When I was arrested, I was closer to the parking lot than to the tea store where I went to the bathroom. At most, I was a
half a block from the parking lot when arrested [maybe not even that distance].

19. I did not see either Michael Tricardo or Gabe Name Redacted on the street at any time once I exited the parking lot and I do not know where they were as of the time that I was arrested.

20. I never looked into or observed any vehicle when I left the parking lot.

21. After I gave my statement at the Westchester County Police facility, I signed it and dated it. It was approximately 8:45 P.M.

a 22. When I inquired about whether or when I could leave, I was told "soon". I asked such periodically when or if I could leave; and I was continuously told "soon".

23. It was not until perhaps 11:30 P.M. that I was informed that I could leave and that a ride was available.

24. Until I was told that I could leave at or about 11:30 P.M., I never believed that I was free to leave.

25. I believe that it was unreasonable not to tell me that I could not leave; and I believe that it was unreasonable not to let me leave once I had completed the statement at or about 8:45 P.M. If I had been informed that I could leave, I would have left, in a heartbeat. I would have endeavored to locate a train and take the train back to the City. I had actually inquired, right after I finished writing out my statement, whether there was a bus or train that I could get to return to the City. It was at that time that I w as informed that I would be able to leave "soon".

O

n

26. I had no knowledge or information whatsoever at any time that Michael Tricardo had traveled to Westchester County on April 26, 2001 in order to engage in a drug transaction with Gabe Name Redacted
and/or to be present when Gabe Name Redacted engaged in a drug transaction. I only learned about such after I was taken into custody. I was shocked when I learned about it. Figuratively speaking, "my face hit the floor."

DATED: New York, New York February 16, 2 002

Sworn to and subscribed before me this 16th day of February, 2002.

n if
NICOLE SARNICOLA

NOTARY PUBLIC My Commission Expires:
n

n

Sarnicola v. County of Westchester

n

H IHI1I • • • • ! • HH1 1 • • • • •

• I

PN-NY-002-010

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

NICOLE SARNICOLA, PLAINTIFF vs
THE COUNTY OF WESTCHESTER, etc., et al.,
DEFENDANTS

01 Civ 6078 (CM)(MDF) AFFIDAVIT OF NICOLE SARNICOLA

STATE OF NEW YORK SS. :
COUNTY OF NEW YORK

n

Nicole Sarnicola, being first duly sworn, deposes and says:

1. I am the Plaintiff in this action.

2. I execute this Affidavit in order to provide some additional information related to roy arrest on April 26, 2001 and in order to clarify responses which I gave in my deposition to the extent that, in reviewing my deposition transcript, some clarification may be appropriate.

3. When I was arrested on the street in Tarrytown, New York on April 26, 2001, I was not subjected to a frisk or any kind of search before I was placed in the police vehicle and transported to a police facility.

4. Until I was subjected to the strip search on April 26, 2001 at the Westchester County Police Department facility, I was never subjected to any kind of search. I was not subjected to any kind of frisk search or pat search.

5. When I was arrested, I was not given or read any rights;

and I did not receive any rights until some point in time when I

was in the Westchester County Police Department facility where I

was strip searched and subjected to an interrogation. My

recollection is that, prior to being strip searched, I was given my

rights. I was only given my rights once and it was while I was

n

waiting for the female officer to arrive before I was then subjected to the strip search. I was not given my rights, again,

n

at the time that I was interrogated and then wrote out although, at the time I wrote out my statement7^ I did

document related to rights. However, I was first given the rights-

-and only given the advisement of my rights, prior to the female

officer coming to the facility in order to conduct my strip search.

6. When I was approached by police officers, I was asked where I was from; and I responded indicating "Brooklyn". I was not asked my name and I was never asked why I was in Tarrytown or what I was doing or what my purpose was in being in Tarrytown.

7. During the journey from Brooklyn, New York to Tarrytown, Michael Tricardo did speak on his cell telephone. The only thing that I heard him say or ask was when we would arrive.

8. When I exited the vehicle in the parking lot in Tarrytown, I did not come together with any of the three other individuals [Michael Tricardo, Gabe Name Redacted Frank Rossi]. I did not see any huddle of individuals; and I was not a participant in a huddle type configuration.

9. I did not observe any individuals giving high fives. I did not give any high five to anyone.

10. As I got out of the vehicle, I indicated that I was going to the bathroom, having indicated that I needed to go to the
n bathroom while I was in the car. 11. I asked Frank Rossi if he wanted to go with me and he indicated he would.

12. I was not part of any other exchange and I did not hear or observe any other exchange between any of the individuals present in the parking lot. I do not even know whether there were any exchanges between Michael Tricardo and Gabe Name Redacted

13. I walked out of the parking lot with Frank Rossi. My belief was that Gabe Name Redacted and Michael Tricardo were in the parking lot behind me and Frank Rossi and it was my belief that they would be in or about the parking lot when, after going to the bathroom, Frank Rossi and I returned to the parking lot. My belief was that we would, then, go to a restaurant which, as I understood it from the beginning, was the reason why we had traveled to Westchester [what I believed was the Yonkers area].

14. I simply had to go to the bathroom; and I did not think in any manner or fashion about going to the restaurant for that purpose. I simply wanted to find a place, where I could go to the bathroom, as soon as possible.

15. Frank Rossi and I walked out of the lot together. We

n

exited right and walked about a block to a store which sold tea;

n

and it was in that store that I found a bathroop. 16. Frank Rossi and I did not walk with Gabe Name Redacted out of

the parking lot and we did not walk with him on the street.

17. The last time that I saw Gabe Name Redacted and Michael Tricardo they were in the parking lot where I believed I left them [at some location] when Frank Rossi and I exited right on to the sidewalk and where I expected them to be when I returned with Frank Rossi from the store where I anticipated going to the bathroom.

18. When I was arrested, I was closer to the parking lot than to the tea store where I went to the bathroom. At most, I was a
half a block from the parking lot when arrested [maybe not even that distance].

19. I did not see either Michael Tricardo or Gabe Name Redacted on the street at any time once I exited the parking lot and I do not know where they were as of the time that I was arrested.

20. I never looked into or observed any vehicle when I left the parking lot.

21. After I gave my statement at the Westchester County Police facility, I signed it and dated it. It was approximately 8:45 P.M.

n

22. When I inquired about whether or when I could leave, I was told "soon". I asked such periodically when or if I could leave; and I was continuously told "soon".

23. It was not until perhaps 11:30 P.M. that I was informed that I could leave and that a ride was available.

24. Until I was told that I could leave at or about 11:30 P.M., I never believed that I was free to leave.

25. I believe that it was unreasonable not to tell me that I could not leave; and I believe that it was unreasonable not to let me leave once I had completed the statement at or about 8:45 P.M. If I had been informed that I could leave, I would have left, in a heartbeat. I would have endeavored to locate a train and take the train back to the City. I had actually inquired, right after I finished writing out my statement, whether there was a bus or train that I could get to return to the City. It was at that time that I w as informed that I would be able to leave "soon".

n

n

26. I had no knowledge or information whatsoever at any time that Michael Tricardo had traveled to Westchester County on April 26, 2001 in order to engage in a drug transaction with Gabe Name Redacted
and/or to be present when Gabe Name Redacted engaged in a drug transaction. I only learned about such after I was taken into custody. I was shocked when I learned about it. Figuratively speaking, "my face hit the floor."

DATED: New York, New York February 16, 2002

Sworn to and subscribed before me this 16th day of February, 2002.

f) if
NICOLE SARNICOLA

NOTARY PUBLIC

^

My Commission E x p i r e s :

; -•

*'""'"''

_^

c

n

 
 Sarnicola v. County of Westchester
PN-NY-002-011
n

IN THE UNITED STATE DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

NICOLE SARNICOLA, PLAINTIFF vs
THE COUNTY OF WESTCHESTER, etc., et al.,
DEFENDANTS

01 Civ 6078 (CM)(MDF) DECLARATION AND AFFIRMATION OF JAMES I. MEYERSON

James I. Meyerson, being duly admitted to practice law in and before the Courts of the State of New York among others and being duly admitted to practice law in and before this Court among others and being duly aware of the penalties for perjury and being duly aware of the sanctions which this Court may impose for the violation of its Rules, affirms under penalty of law and declares under the threat of the imposition of sanction by this Court for the violation of its Rules as follows:

1. I am the attorney for the Plaintiff.
2. I have prepared the Plaintiff's papers in Opposition to the Defendant' Motion for Summary Judgment. I have also prepared the Plaintiff papers in support of a Cross Motion for Summary Judgment.
3. I believe, in good faith, that the Defendants are not entitled to summary judgment. On the other hand and based on a significant number of undisputed relevant material facts, I believe that the Plaintiff is entitled to judgment as a matter of law on the various claims which she has asserted in this litigation.
4. There are some fact disputes. Such disputes relate to a narrow universe of information which Defendant McGurn claims that he was aware of at the time that he directed the Plaintiff's arrest. To the extent that such information changes the equation for assessing the probable cause [and I do not believe that, even with that information, such would change the outcome in Plaintiffs favor], then, it is submitted, the matter must be submitted to a jury for a resolution of those fact disputes.

n

5. On the basic facts which are not disputed and placing aside the limited facts which are disputed [relative to information

n

which Defendant McGurn asserts he had at the tijne he directed the Plaintiff's arrest], Defendant McGurn has testified that he believed that he had sufficient probable cause to arrest the

Plaintiff and he would have arrested her. On that information which

is not disputed, Plaintiff submits that, as a matter of law,

Defendant McGurn did not have a probable cause basis to arrest her.

Accordingly, on that information, judgment should be entered as a

matter of law for the Plaintiff [on her false arrest claim].

6. Moreover in that regard, the Plaintiff believes that the disputed information should be discounted and disregarded, as a matter of law, since it is not documented in any of the contemporaneous 4/26/01 field reports; and, therefore, as a matter of law, it cannot now be advanced to bolster the information base which was available to McGurn at the time that he subjected the Plaintiff to an arrest.

7. Furthermore and based on the uncontested material facts

and assuming that those facts are the only facts which are

relevant to the probable cause inquiry given that on those

undisputed material facts Defendant McGurn has admitted that he

would have arrested the Plaintiff without the disputed information

being factored in, I believe that there was no probable cause for

the Plaintiff's arrest and I further believe that no reasonable

police officer could have believed that there was probable cause to

arrest the Plaintiff.

n

8. As a matter of fact, based on the testimony of undercover

Officer Kelly, the reason for the arrest was and is apparent: [a]

to take everyone into custody no whatever what the evidence of

criminal activity against a specific individual [if any]; [b] to

interrogate everyone taken into custody [before booking and

charging anyone]; and [c], then, to sort it all out once everyone

was in custody. Such is an impermissible justification for an

arrest because the "suspicion" for a "Terry stop" interrogation

does not metastasize into probable cause for a full scale custodial

arrest and custodial interrogation associated therewith simply

because of a generic proximity to individuals for whom there was

probable cause to arrest for particular and specific criminal

activity.

9. It is my belief, too, that the strip search to which the Plaintiff was subjected by Defendant McGurn pursuant to the County policy, was, as a matter of law, unconstitutional because: [a] there was no probable cause for the arrest]; and/or [b] because, even assuming probable cause for the arrest, there was no independent basis to believe that the Plaintiff was secreting a weapon or contraband or was otherwise a security risk because of something which she was hiding; and/or [c] because the policy, nonetheless, allowed her to be subjected to the strip search simply because she was arrested in the context of a drug related situation to which she had some proximity and without more.

10. As with the arrest and except for #the limited fact

n

disputes related to the arrest which may be irrelevant to the analysis, there are no material fact disputes about the strip search and the circumstances thereof; and, accordingly, it appears

that judgment, as a matter of law, is the appropriate vehicle for

resolving the legality of the search. On the other hand and to the

extent that probable cause is a critical aspect to the resolution

of the case and the disputed facts are deemed to be relevant [even

in the context of Defendant McGurn indicating that without them he

still would have arrested the Plaintiff and subjected her to the

strip search], then the strip search issue may best be left to

resolution after trial.

11. Finally, with respect to the Plaintiff's excessive detention claim, it appears that there are no relevant material fact disputes. Defendant McGurn, who was the individual responsible for her release, indicated that he did not authorize the Plaintiff's release for approximately two hours after she completed her statement at 8:45 P.M. [the Plaintiff believes that it is closer to three hours thereby proposing that there is a dispute about the period post statement detention before she was authorized for release]. On the undisputed relevant and material facts, the Plaintiff believes that, assuming probable cause for her arrest, nonetheless, she should have been permitted to leave at 8;45 P.M. when she gave her statement. She was not charged at the time of the completion of her statement; and she was not released at that time; and she was not booked or charged. Accordingly and as
n a matter of law, the continued detention of the Plaintiff was unlawful and unconstitutional and the Court, on the undisputed relevant material facts as described, should so hold.

12. I have attached hereto as part of my submission, materials relevant to the claims which represent evidence supporting the uncontested relevant material facts and otherwise endeavoring to discount, as irrelevant, the facts which are in dispute. If the latter cannot be achieved, then judgment in favor of either party with respect to some of the Plaintiff claims may be required to be postponed pending a resolution of those contested facts [if deemed relevant to the probable cause equation].

DATED: New York, New York February 17, 2002

Respectfully submitted,

JAMES I. MEYERSON

n

 
 Sarnicola v. County of Westchester
PN-NY-002-012
n

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

NICOLE SARNICOLA, PLAINTIFF
VS
THE CITY OF NEW YORK, etc., et al.,
DEFENDANTS

01 Civ 6078 (CM)(MDF) PLAINTIFF'S CONSOLIDATED LOCAL RULE 56.1 STATEMENT IN SUPPORT OF HER CROSS MOTION MOTION FOR SUMMARY JUDGMENT/ COUNTER RULE 56.1 STATEMENT RELATIVE TO THE DEFENDANTS' RULE 56.1 STATEMENT

Now comes the Plaintiff, by and through her counsel, and
hereby and herein offer the following Rule 56.1 Statement in
support of her Cross Motion for Summary Judgment and as a Counter
Rule 56.1 Statement relative to the Defendants' Rule 56.1
Statement.
I. THE PLAINTIFF'S STATEMENT OF RELEVANT UNCONTESTED MATERIAL FACTS
A. SERGEANT THOMAS McGURN'S ROLE IN THE ARREST, SEARCH, DETENTION, AND RELEASE OF THE PLAINTIFF
f1] Defendant Sergeant Thomas McGurn directed that the Plaintiff be stopped, questioned, arrested [taken into custody], subjected to an intrusive body search, interrogated, detained and, eventually, released. See: McGurn deposition testimony at pages 10-11; 27; 29; 34; 56-57; 69; 87-88.
[2] Sergeant McGurn was the command officer of the field operation that resulted in the arrest of the Plaintiff (Rowan deposition testimony at page 13).

•*"•"••*

\

n

B. THE INFORMATION KNOWN TO SERGEANT! M C G U R N

WHEN HE DIRECTED THE PLAINTIFF'S ARREST

The only relevant material facts are those which Sergeant

McGurn knew when he directed the Plaintiff's arrest (McGurn

deposition testimony at page 47) . At the time that Sergeant McGurn

directed the arrest of the Plaintiff on April 26, 2001, he

possessed the following relevant uncontradicted material facts

[information]:

I"la] Gabriel Name

was an individual who had been under

surveillance Rebdaycted the Westchester County Police including

himself (McGurn deposition testimony at page9 ) ;

[2a] in the two weeks prior to April 26, 2001,Name

had

been observed engaging in ecstacy drug transacRtediacotend s with a

Westchester County undercover police officer (McGurn

deposition testimony at pages 9-10, 15, 39, 41-43);

("3a") As a consequence of the pre-April 26, 2001 surveillance

of Name Redacted McGurn believed that Name

had a male

ecstacy supplier (McGurn deposition tesRtediacmteod ny at page 2 3 ) ;he

did not believe that the supplier was a woman (McGurn

deposition testimony at page 104);

("4a"| in a pre-April 26, 2001 drug transaction, Name

was

observed in the company of a white male at a timeRepdarcteodximate to

an undercover drug transaction although the white male was not

physically present during the pre-April 26, 2001 drug

transaction between Name

and the undercover (McGurn

deposition testimony aRetdacptedages 21-23);

[5a"| on the late afternoon of April 26, 2001 Name

drove

his vehicle [a Toyota] into a parking lot behReidnacdted the CVS on

South Broadway in Tarrytown New York to engage in a pre-

arranged drug transaction (Rowan 4/26/01 field report);

f6a1 he was alone in his vehicle (Rowan 4/26/01 field report);

[7a] a second vehicle [a Durango], in which three individuals

[a female and two males] were situated, had been reported to

be following the Name

vehicle (Rowan 4/26/01 field

report);

Redacted

n

o
i

[8a] the second vehicle, which was driven by the female,

parked proximate to the Name

vehicle (Rowan 4/26/01 field

report);

Redacted

[9a] Name Redacted exited his vehicle and the three individuals exited their vehicle (Rowan 4/26/01 field report);

[ 10a] Detective George Rowan, who was conducting a surveillance in the parking lot behind the CVS Pharmacy observed such at or about 5:40 (see: Rowan 4/26/01 field report);

[lla] Rowan documents in his report that "when all the subject [sic] were out of their respective cars, the three...males gave each other five and conversed momentarily (Rowan 4/26/01 field report);

[12a] the individuals left the parking lot at approximately the same time (Rowan 4/26/01 field report);

[13a] Rowan documents in his report: "All the subjects walked toward North Broadway...The female subject and the male subject, wearing the black jacket and the black pants, walked south on North Broadway. The other two subjects turned the corner and appeared to walk north on North Broadway." (Rowan 4/26/01 field report);

[14a] within minutes after leaving the lot, Name

returned

to the parking lot in a vehicle being driveRnedabcytedKelly (Rowan

4/26/01 field report);

[15a] Name

engaged in a drug transaction with Kelly by

exchangRiednagcteda large quantity of ecstacy tablets, then in the

trunk of Name Redacted vehicle and retrieved by him from his

trunk, for a significant sum of money provided to him by the

undercover Kelly in Kelly's vehicle (Kelly and Rowan 4/26/01

field reports);

[16a] Sergeant McGurn went up to Kelly's vehicle where Name had just been taken from the vehicle and placed Ruenddaectr
arrest by Rowan pursuant to a pre-ordained signal from eKdelly that the transaction had taken place (Rowan and McGurn 4/26/01 field reports; Kelly deposition testimony at pages 14-15; McGurn deposition testimony at page 89; Rowan deposition testimony at pages 33-35, 39-43);

[17a] Kelly documents in his 4/26/01 field report that, after

giving the signal and as soon as Name

was placed under

arrest by members of the WestchesterRedCaocutendty Police Department,

he [Kelly] "...immediately returned to [his] vehicle,

recovered the twenty two thousand dollars in U.S. currency

that Gabe had dropped on the front passenger seat and secured

"Fl

n n n

it in my left front pants pocket." (Ke^Lly 4/26/01 field report; Kelly deposition testimony at page% 30-35);

[18a] Rowan documents in his report that Sergeant McGurn "immediately directed [Rowan] to give out the descriptions of the other three." (Rowan 4/26/01 field report);

[ 19a"| Sergeant McGurn documents in his report that, after

providing him his rights, McGurn: asked Name

if he wanted

to cooperate; Name

indicated yes; RSeedracgteedant McGurn asked

Name

who gRaedvaectehdim the five thousand pills of ecstasy and

RNeadmaected

responded "Mike"; Sergeant McGurn asked Name

Rwehdeatctheedr "Mike" came up in the silver Durango and NRaemdaected

responded yes; Name

indicated that "Mike" had Refdoalctleodwed

his vehicle fromReBdracoteodklyn because "Mike" wanted his money for

the five thousand pills (McGurn 4/26/01 field report);

f20a") the foregoing exchange between Name

and Sergeant

McGurn was memorialized by Sergeant McRGeudracntedon April 26, 2001

in his field report (McGurn 4/26/01 field report);

[21a] Sergeant McGurn does not document in his report any

other exchange between him and Name

and any other

information conveyed to McGurn at thRaetdatctiemde before/at or about

the time of issuing the order that the female and two other

males be arrested (McGurn 4/26/01 field report);

[22a] Sergeant McGurn does not document in his 4/26/01 report

or any other report any information provided to him by Kelly

and/or any other individual about having seen the female,

Name

and another male do a "walk by surveillance" of

RKeedlalctye'd s vehicle at or about the time that Name

entered

the vehicle on Broadway or any other point Riendatctiedme and Kelly

does not document conveying such information to McGurn in his

report and, furthermore, states in his deposition testimony

that he and McGurn did not have any exchange at the time and

location of the Name

arrest (Kelly and McGurn 4/26/01

field reports; KeRleldyactdedeposition testimony at pages 34-36);

[23a] McGurn did not ask Name

about what, if any,

knowledge he had about the inRveodlavctedment of any other person in

the Durango vehicle in the drug enterprise and Name

did

not implicate anyone other than "Mike" in the druRgedtarctaednsaction

(McGurn deposition testimony at pages 31-33);

[24a] Kelly testified that, if Name

exonerated the

Plaintiff and Rossi and if all Rtehdeactiednformation available

with respect to Sarnicola was her presence in the vehicle

and proximity to Tricardo and Name Redacted there would be no

probable cause for the arrest of the Plaintiff (Kelly

deposition testimony at pages 85-86);

-wrr

n
/ 1 '
O

F25al according to McGurn he directed t^he arrest of the Plaintiff and Frank Rossi simply because ^ . . a s far as I was concerned, they are all part of the deal. They all came up in the car. They are all part of the sale at that time...and I direct everybody to find them." (McGurn deposition testimony at page 34);

F26a1 according to McGurn he would have directed the arrest of the Plaintiff even without the information he claims to have received from Kelly regarding the alleged "walk by surveillance" of the Kelly vehicle by the Plaintiff and Rossi (McGurn deposition testimony at pages 103-104);

T27al Kelly documented in his 4/26/01 contemporaneous field report: "At approximately 1735 hours, I parked my undercover vehicle... in front of Pay Half Store...on Broadway in the Village of Tarrytown. At approximately 1740 hours, a subject known to me as "Gabe" arrived driving a green 4 door Toyota Camry...Gabe traveled north on Broadway and west into the CVS parking lot...I immediately used my department cell phone to call Gabe...I told Gabe where I was and he said he would meet me in five (5) minutes. At approximately 1754 hours, I received a page from Gabe and at the same time he entered my vehicle on the front passenger side." (Kelly 4/26/01 field report);

F28a"| Kelly does not memorialize in his report that he

observed a female and a male walk by his car with Name

and look into his car when Name

got into his caRredoacrtedthat

he communicated such informaRteidoacntedto anyone and McGurn does not

document in his report that he was informed of such

information by Kelly (Kelly and McGurn field 4/26/01 field

reports); and Kelly further does not testify that he had such

a communication exchange with McGurn at the time and place of

the Name

arrest [or otherwise](Kelly deposition testimony

34-3R6e)d;acted

[29a] McGurn believes that the information about an alleged "walk by surveillance" of a vehicle by people associated with a drug buy is of consequence and should be recorded (McGurn testimony at page 102-103);

f30al Kelly deems any alleged walk by surveillance of his vehicle as part of drug transaction to be significant but nonetheless he did not record such as part of his contemporaneously executed 4/26/01 field report even though he would have recorded such if, in the course of the walk by surveillance, the individuals had stood outside of his vehicle (Kelly deposition testimony at pages 71-77);

f31a] McGurn does not document in his 4/26/01 report any exchange with Name Redacted prior to McGurn directing that the

n

three individuals be arrested or at any tMie, in which Name describes the substance of any exchange between hiRmedaactnd
Tricardo on the cell telephone when they were travelinged, in

separate vehicles, to Tarrytown (McGurn 4/26/01 field report);

[32al McGurn does not document in his report any communication

which he had with Name Redacted prior to McGurn directing the

arrest of the three other individuals or at any time, in which

Name

describes any discussions he had with any of the

Rtehdarcteede individuals, individually and/or collectively, in the

parking lot once everyone had exited their vehicles;

f33al Sergeant McGurn had never previously heard or been made

aware of involvement by any female in the drug enterprise and

had never heard the Plaintiff's name and had never observed or

been made aware of any female being involved with Name

in

the drug enterprise (see: McGurn deposition testimRoednayctedat pages

15, 104);

[ 34a") Sergeant McGurn was a veteran drug offense law enforcement officer whose experience came into play, in an unguantifiable degree, in the field operation and the arrest of the Plaintiff (McGurn Affidavit; McGurn deposition testimony at pages 104-105);

|"35a1 with the foregoing information and within a couple of

n

minutes of the arrest of Name Redacted Michael Tricardo was arrested on North Broadway, just north of the CVS (Rowan

4/26/01 field report);

f36al at approximately 6:00 the Plaintiff and Michael Rossi were arrested on North Broadway, just north of Main Street, in front of a store located at 41 North Broadway in front of Novellos (Rowan 4/26/01 field report);

[37a] Detective Rowan documents in his report that he "positively identified those subjects as the subjects that I observed exit the Dodge Durango." (Rowan A/26/01, field report; Rowan deposition testimony at pages 54-60);

f 38a1 Kelly does not document in his report that he made any identifications of any of the individuals arrested on North Broadway (Kelly 4/26/01 field report);

\39a1 at the time of her arrest, the Plaintiff was not given any statement of her "Miranda rights". She was given her "Miranda rights" prior to her being strip searched; and, then, when she memorialized her statement in writing, she signed her "Miranda rights" form although she was not verbally advised of the rights, again, when she was subjected to interrogation and prior to her signing her statement (Sarnicola Affidavit);

n
n n

("40a] the protocol is for a "felony arrest^e" to be given "Miranda rights" at the time of arrest (Prferro deposition testimony at pages 40-41).

f41a] at the time of her arrest, the Plaintiff was not subjected to a pat down search or any other kind of frisk or search before being placed in a vehicle for transport to a police facility and she did not receive any kind of search frisk procedure before being subjected to the strip search procedure (Sarnicola Affidavit);

F42a1 pursuant to Westchester County Department of Public Safety General Order 41.01, Prisoner Transport; searching/handcuffing, Issue Date 01/01/92, Effective Date 06/05/92, "...the person taken into custody shall be frisked immediately after apprehension and handcuffed";

f43a] pursuant to Westchester County Department of Public Safety Order 25.01, Constitutional Guidelines, Issue Date 01/01/92, Effective Date 11/28/97, "during stop and frisk situations where there is insufficient probable cause to effect an arrest...questioning must be limited to ascertaining subject's identity and reason for being in the area. If...probable cause for arrest exists, appropriate constitutional warnings must be given prior to any further questioning."

[44a] if McGurn had not given the direction to arrest the Plaintiff, Kelly would have done so in any event "to question them [Plaintiff, Rossi, and Tricardo] to see what was going on." (Kelly deposition testimony at pages 5758)

f45a] Kelly assumed that McGurn had directed the Plaintiff's arrest but he did not hear any direction by McGurn to arrest her/them (Kelly deposition testimony at pages 56-57);

[46a] Kelly assumed that McGurn wanted the Plaintiff arrested because "this is how we conduct this type of investigation." (Kelly deposition testimony at page 57).

T47a1 according to Kelly it was his understanding that simply

because the Plaintiff was with Tricardo in the vehicle that

had followed the Name

vehicle such was sufficient

probable cause foRredahcetedr arrest (Kelly deposition testimony at

page 78) ;

f48a] according to Kelly, the arrest of the Plaintiff and Rossi would have occurred in this type of situation "...to see what their degree of facilitation of this crime was, and at a later point if it's determined that they did not take part in this or they did — t h a t then we would let them go, but

we definitely bring them in to question th^m. We don't know

o

on the scene if the pills could have belonged to Nicole or Frank, so they would have been arrested, too, and brought

back to headquarters to see what their degree of involvement

was in the situation." (Kelly deposition testimony at page

79).

f49a] otherwise put, "...the totality of all circumstances that occurred, Detective Rowan watched these people get out of the vehicle, greet Name Redacted so yes, given these circumstances, all three people if able to be apprehended would be arrested, brought back to headquarters, and questioned to see—and t o — s o we can determine what their involvement in this action was." (Kelly deposition testimony at page 80).

[50a1 in substance, McGurn, as well, deemed the fact that Sarnicola and Rossi were in the vehicle to be "all part of the deal"—"all part of the sale" and deemed such sufficient to arrest them (McGurn deposition testimony at pages 34-36);

f51a] Beckley, who conducted the strip search of the Plaintiff, was informed and understood that the Plaintiff had been arrested because "she was with them." (Beckley deposition testimony at page 24-26).

n

f52a"| Pierro, who interrogated Sarnicola at the police facility, indicated that, prior to his commencement of the

interrogation, he had been informed that Sarnicola was

arrested "because she was in a group of people involved in

the bust operation and they were all brought to

headquarters" where it was his "assignment...to discuss with

her the level of involvement with these people." (Pierro

deposition testimony at page 13).

f53a] it was only after Sarnicola was informed by the police while she was in custody that Tricardo was involved in a drug transaction, that she became aware of what Tricardo had done and was doing. She had no knowledge whatsoever of such; and, when informed, Sarnicola was shocked; figuratively speaking, her "...face hit the floor". (Sarnicola Affidavit).

[54a] on the way to Brooklyn, Sarnicola and Rossi were permitted to drink beer in the police vehicle although Pierro denies that either he or Antonecchi drank beer even though Sarnicola alleges such and Rossi testified that Pierro and Antonecchi did drink beer (Pierro deposition testimony at pages 60-64; Rossi deposition testimony at pages 39-42 and 53-54; Plaintiff's Complaint).

O

n

C. THE BASIS FOR SERGEANT McGURN'S DIRECTIVE TO SUBJECT THE PLAINTIFF TO A STI&P SEARCH

At the time that Sergeant Thomas McGurn directed the strip

search of the Plaintiff the following relevant material facts are

uncontradicted:

fib] McGurn directed that the Plaintiff be subjected to a strip search pursuant to and under the authority of the policy of the County of Westchester encompassed in Westchester County Department of Public Safety General Order, Section 42.05, encaptioned "Cavity Searches of Prisoners", Issued Date 01/0/92/Effective Date 01/01/92 (McGurn deposition testimony at pages 57, 65-67);

[2b] McGurn had no independent basis to believe that the Plaintiff was concealing contraband and/or a weapon (McGurn deposition testimony at pages 58-68);

f3b] McGurn understood the County policy to allow him to subject any individual, who was arrested for any drug offense, to a strip search without any other independent factor[s] related to either the individual of circumstances of the alleged crime (McGurn deposition testimony at page 66 "...anything dealing with drugs, anything—");

[4bl Westchester County Department of Public Safety General Order 42.05 which allows for a strip search on "reasonable suspicion" [less than probable cause] in conjunction with other factors related to the circumstances of the arrested individual and/or the circumstances of the arrest;

C5bl the Plaintiff was subjected to the strip search during which process Ms. Sarnicola periodically cried (Beckley deposition testimony at pages 15-18);

[6b] the procedures reguired to be followed, where as here a strip search was undertaken, were not followed:, the policy requires that two officers of the same sex be present and during the search in this case only one, Officer Beckley, was present (Sarnicola deposition testimony at pages 61-62); and the policy requires that every strip search must be documented in a written report and no written report was made as part of the arrest reports (see Westchester County Department of public Safety General Order 42.05 (Beckley deposition testimony at page 39);

[7b] Sarnicola was not subjected to any kind of frisk, pat,

or other search prior to being subjected to the strip

n

search (Sarnicola Affidavit);

TF1T

f8b") Beckley conducted the strip search pursuant to a supervisor's direction (Beckley depositiorf testimony at page 23);

f9b] pursuant to the strip search procedure, Beckley went into a cell and directed the Plaintiff to remove her clothing items, one by way, including her skirt, her shirt, her underwear and bra, and to turn around and bend over; and the Plaintiff complied (Beckley deposition testimony at pages 1619);

flOb] No contraband was found on Sarnicola (Beckley deposition testimony at page 19).

D. THE PLAINTIFF'S DETENTION AND EVENTUAL RELEASE

The following are uncontested material facts related to the

Plaintiff's excessive detention claim:

Pursuant to Sergeant McGurn's directive the Plaintiff was arrested at or about 6:00 P.M. (Rowan 4/26/01 field report);

f2c"| she was transported to the Westchester County Department

of Public Safety Facility [after initially being transported

for a very brief period to the Village of Tarrytown Police

Department] (Sarnicola 50[h] hearing testimony at pages 36-40;

O

Sarnicola deposition testimony at pages 49, 52);

[3c"| the Plaintiff was not fingerprinted or photographed

or booked when she was brought to the Westchester County

Police Department facility (McGurn deposition testimony at

page 106) although the Plaintiff was eventually photographed

(Sarnicola 50[h] hearing testimony at page 39); and she was

never charged with any crime or otherwise booked (see

Sarnicola arrest report);

[4c] she was subjected to the strip search (Sarnicola 50[h] hearing testimony at pages 42-44; Sarnciola deposition testimony at pages 59-64; Beckley deposition testimony at pages 16-19);

\5c] then, she was interrogated, at the outset of which she was informed "...sweetheart, we want to let you go" (Sarnicola deposition testimony at pages 69, 74), and which at the conclusion of the interrogation resulted in her memorializing a statement commencing at or about 8:20 P.M. and concluding at or about 8:45 P.M. (Sarnicola 4/26/01 statement; Sarnicola 50[h] hearing testimony at pages 44-47; Sarnicola deposition testimony at pages 64-71; Pierro deposition testimony at page 44);

n

10

in

[6C1 the Plaintiff was, then, informed that she would be able to leave "soon" (Sarnicola 50[h] hearing testimony at pages 47-52; Sarnicola deposition testimony at pages 77-78);

T7c1 if the Plaintiff had been informed that she could leave at the time that she completed her interrogation and wrote out her statement at or about 8:45 P.M., she would have left in a "heart beat". She would have endeavored to locate a train and take a train back to the City; she actually inquired, right after she finished writing out her statement whether there was a bus or train that she could get to return to the City and it was at that time that she was told that she would be able to leave "soon" (Sarnicola Affidavit);

f8c] periodically the Plaintiff asked when she could leave and was continuously informed "soon" (Sarnicola deposition testimony at pages 77-78);

F9c1 that based on the "soon" pronouncements, the Plaintiff did not believe that she was free to leave (Sarnicola Affidavit);

flOc] Sarnicola believes that it was unreasonable not to tell

her that she could not leave when she first asked and then

periodically asked thereafter and when she was informed

"soon"; and she further believes that it was unreasonable not

o

to let her leave once she completed her statement at or about 8:45 P.M. (Sarnicola Affidavit);

f lie") Frank Rossi completed his interrogation and statement at or about 10:45 P.M. [Rossi 4/26/01 statement]; Rossi was, thereafter, detained for approximately one half hour or thereabouts before he and the Plaintiff were informed that they could go home (Rossi deposition testimony at pages 3335);

f12c] it was not until about 11:30 P.M. when Sarnicola was informed that she could leave (Sarnicola Affidavit);

f13<fc] Sarnicola was taken to the front desk and.Frank Rossi was already there and the Plaintiff waited another twenty minutes to forty five minutes before she and Frank Rossi actually left the facility with the officers (Sarnicola 50[h] hearing testimony at pages 48-49,51);

[14c] thereafter, the Plaintiff and Rossi were informed that

they could get a ride back to Brooklyn since Officer Pierro

and others were going to Brooklyn to do some business in

connection with the arrest and detention of Mr. Tricardo

(Rossi deposition testimony at pages 35-37; Sarnicola 50[h]

hearing testimony at page 51; McGurn deposition testimony at

pages 69-70, 73-74 where he concedes that it was two hours

n

11

•n

n

after Ms. Sarnicola completed her statement before he

indicated she could leave) ;

*»

f 14c"| McGurn indicated that Ms. Sarnicola was not released when she completed her statement because the investigation was on-going (McGurn deposition testimony at page 70);

[15c] it was between twenty minutes and 45 minutes before Rossi and Sarnicola left the Department facility once she and Rossi were brought to the desk on the first floor at or about 11:30 or thereabouts (Sarnicola 50 [h] hearing testimony at page 51);

|"16c"| the Plaintiff thought it was unreasonable for the police to hold her once she had given a statement and was not informed that she could leave but that she would be able to leave "soon" (Sarnicola Affidavit; Sarnicola deposition testimony at pages 72-76).

II. THE CONTESTED FACTS

Based on the Defendants' submissions, it is important that the

Court be clear as to what facts the Plaintiff contends are in

dispute.
n

A. THE ALLEGED "HUDDLE"

The Defendants contend that, when Sarnicola, Tricardo and

Rossi, and Name

exited their respective vehicles, they came

Redacted

together, in a huddle type of configuration, spoke and "high fived"

each other (McGurn deposition testimony at pages 24-25 ["...she was

standing right in the middle of the huddle. They were four people

all facing each other to the center."]; McGurn deposition testimony

at page 96).

The Plaintiff categorically denies such. See: Sarnicola 50[h]

hearing testimony at pages 27-30; Sarnicola deposition

testimony at pages 3 3-40; Sarnicola Affidavit; Rossi

deposition testimony at pages 20-24. Sergeant McGurn's report,

memorialized on 4/26/01 does not document such (McGurn 4/26/01

field report); and Detective Rowan, whose observations were

the primary observations of what took place in the CVS parking

lot, does not document the same. His report states: "When all

of the subject [sic] were out of their respective cars, the

o

12

three (3) males gave each other f*ve and conversed

f>

momentarily.11 (Rowan 4/26/01 field reportj\

•I.. '

Both the Plaintiff and Mr. Rossi deny that any "high fives"

were given. Sarnicola and Rossi testify that there were

momentary remarks in which Sarnicola indicated that she was

going to the bathroom and asked Frank Rossi if he wanted to go

with her (Sarnicola deposition testimony at pages 34-38;

Sarnciola 50[h] hearing testimony at pages 28-30; Rossi

deposition testimony at pages 18-23). Although Tricardo and

Name

left the parking lot, they did not do so, together,

Rwediacttedh the Plaintiff and with Mr. Rossi even if they may have

been exiting at or about the same time as the Plaintiff and

Rossi were leaving the parking lot. Ms. Sarnicola and Mr.

Rossi believed that Name

and Tricardo were behind them

and that, when they R[edPactledaintiff and Rossi] turned on Broadway

after leaving the parking lot, they believed Name

and

Tricardo to still be somewhere in the parkingRedlacotedt (Sarnicola

and Rossi testimonies, supra; Sarnicola Affidavit).

B. THE ALLEGED "WALK BY SURVEILLANCE"

Defendant McGurn has asserted that, prior to the point in time

when he directed the arrest of the Plaintiff, he [McGurn] was

aware/had been informed by Detective Kelly that the Plaintiff, Mr.

Rossi and Name

walked toward the location where he [Kelly] was

Redacted

parked and that, as they passed, Rossi and the Plaintiff looked

into his vehicle and continued on while Name

got into Kelly's

Redacted

vehicle (McGurn deposition testimony at pages 26, 100-101).

The Plaintiff contests that Kelly observed such and that he

communicated such and the Plaintiff contests that McGurn knew

such. As it turned out, when the Plaintiff and Mr. Rossi

exited the CVS parking lot got to the street arid exited the

parking lot, they turned right which is south on North

Broadway (Sarnicola deposition testimony at pages 35-36, 40;

Sarnciola 50[h] hearing testimony at page 30; Rossi deposition

testimony at page 23) . Such is corroborated in the report

written by Detective Rowan (see Rowan 4/26/01 field report).

Apparently, Tricardo and Name

exited onto South Broadway

and turned north [the oppRoedasctiedte direction, see: Rowan 4/26/01

field report] — t h e area in which, according to Detective

Kelly, his vehicle was located (see: Kelly 4/26/01 field

report and Kelly deposition testimony at pages 16-17).

Nowhere does Detective Kelly memorialize the fact of the

13

,/~ ',
f~ | *'

conduct he attributes to the Plaintiff a&i Rossi or of the

fact of advising McGurn or anyone else of such; nor does

McGurn memorialize being informed of such. All Detective Kelly

writes is: "At approximately 1745 hours, I received a page

from Gabe and at the same time he entered my vehicle on the

front passenger side."

As noted, to the extent that

Detective Rowan recorded, as part of his observation, the

direction in which Rossi and Sarnicola went once they reached

South Broadway, such direction was the opposite direction in

which Name Redacted The reports from Rowan and Kelly make it

clear that he had no communications in this regard, or for all

intent and purposes in any respect, with McGurn at the time

and location of Name Redacted arrest (Kelly and Rowan 4/26/01

field reports; Kelly deposition testimony at pages 31-36;

McGurn deposition testimony at pages 101-102).

Moreover and notwithstanding that Kelly testified at his deposition that he identified Ms. Sarnicola on South Broadway when she was arrested, he does not indicate such in his report (Kelly 4/26/01 field report). On the other hand, Rowan, who had observed Ms. Sarnicola when she exited the vehicle in the parking lot and had distributed her characteristics over police communications, indicates in his report that it was he, after being called to South Broadway from the parking lot, who identified Ms. Sarnicola when she was placed under arrest, once again undercutting the credibility of the assertions of Kelly that the Plaintiff and Rossi went by his vehicle and looked into it and that he ever communicated such to anyone (Kelly and Rowan 4/26/01 field reports).

C. THE ALLEGED Name

AND McGURN EXCHANGE

Redacted

Defendant McGurn also now contends that, in addition to

learning from Name

that Tricardo was his ecstasy supplier

Redacted

before or at or about the time that McGurn gave the directive to

arrest Tricardo, Rossi and the Plaintiff, Name

also informed

Redacted

him at that time that "...he and Tricardo had numerous cell phone

conversations during the trip from Brooklyn in which Tricardo

instructed Name

about how the drug deal should take place and

Redacted

that it should happen quickly". See: McGurn February 1, 2002

Affidavit. McGurn now states, as well, that Name

informed him,

Redacted

/ir

[when Name

was arrested and waived his.

Redacted

11

14

i
'
<,r~ ( '

McGurn] that "when the two cars first parked in £he CVS parking lot

and all parties exited their vehicles, and engaged in a brief

discussion, Tricardo again dictated how the drug deal should take

place and that it should be completed quickly." See: McGurn

February 1, 2002 Affidavit.

In that regard, the Plaintiff and Mr. Rossi do not deny that,

during the course of the trip from Brooklyn to Tarrytown,

Tricardo was on the cell phone on some occasions but that,

other than for asking Name

how much longer it would be

before they arrived, thReerdeacwteads little discussion of which they

are aware and certainly nothing to suggest to either of them,

from the portion of the conversation[s] that they were aware

that was on-going, of anything about a drug transaction

(Sarnicola 50[h] hearing testimony at pages 25-26; Sarnicola

deposition testimony at pages 30-32; Sarnicola Affidavit;

Rossi deposition testimony at page 16) . Moreover, there is no

evidence whatsoever that Name

at all indicated that all

of the parties engaged Riendacated discussion during which the

Plaintiff became aware/was aware of the drug

transaction/enterprise that was then on-going.

In fact, at no time did McGurn ever testify at any point in

his deposition that Name

ever informed him, at the time

of his arrest and jusRtedapcrteidor to McGurn giving his directive to

arrest Rossi, Tricardo and the Plaintiff, of anything but the

fact that Tricardo ["Mike"] was his supplier and that Tricardo

was one of the individuals in the Durango (see: McGurn bli&IQY

field report). In fact, when asked whether or not Name

indicated anything else to him other than that TricRaedradcoted was

his supplier and that Tricardo was in the Durango vehicle,

McGurn testified at his deposition, without any equivocation,

no. See: McGurn deposition testimony at pages 32-34.

To the extent that his deposition testimony when taken as a

whole can be read to indicate that he needed to review his

report to determine whether there was anything further said by

Name Redacted McGurn's report makes no reference to being

informed of anything else by Name

at that time [prior to

the McGurn directive to arreRsetdatcthede Plaintiff, Tricardo, and

Rossi] other than Tricardo was his supplier and that Tricardo

[known as "Mike"] was in the other vehicle (McGurn 4/26/01

field report). To the extent that Name Redacted post arrest

statement makes mention of communications, etc., that

statement was not taken until much latter at or about 8:00

P.M. (Name

4/26/01 statement). Defendant McGurn has

collapsReeddactteidmes and information to advance and to bolster,

after the fact, the knowledge which he now claims to have had

at the time of his direction to arrest the Plaintiff when, in

•T

15

n

fact, he did not, at that time, have certain of the knowledge. He has, for all intent and purposes, admitted that he did not then have certain knowledge he now claims to have had through

his deposition testimony and the substance of his

contemporaneously recorded 4/26/01 field report neither of

which make reference to the information he now claims Name

and Kelly provided him just prior to or at or abouRtedtahcte

time of the McGurn directive to arrest the Plaintiff. ed

What is the most significant aspect of the entire discussion

with Name

is that, while Name

specifically

identRiefdiaectsedTricardo as the suppRleidaecrte,d thereby establishing the

probable cause for the arret of Tricardo, Name

provided

McGurn with no information specifically linRkeidnagctedthe Plaintiff

or Mr. Rossi to the drug transaction or to having any

knowledge of the drug transaction. Therefore, the information,

as attributed to Kelly and to Name

[other than for the

Name

identification of TrRiecdaarctdeod as the supplier] should

Rbeedadctiesdcounted in making the assessment as to what McGurn knew

at the time that the Plaintiff was arrested.

Ultimately, both McGurn and Kelly have testified that the

contested information would not have made any difference and that,

based on the mere presence of the Plaintiff in the vehicle which

followed the Name

vehicle and the momentary exchange between

Redacted

the occupants of the vehicle when they existed their respective

vehicles and the fact that Tricardo was identified by Name

as

Redacted

his supplier, the Plaintiff would have been arrested for the

purposes of bringing her, along with Rossi, into the police

facility for interrogation in order to sort it out.

Thus, from the Plaintiff's perspective, the contested

information is basically irrelevant to the resolution of the claim

whether the Defendant McGurn had sufficient information [when the

contested information is discounted] to arrest her; and the answer,

from the Plaintiff perspective, is, categorically, no.

16

III. CONCLUSION

1

w

The Plaintiff, by her attorney, reserves ner right to amend

and supplement this document. Furthermore, the Plaintiff

submits that, given the non contested relevant material facts and

discounting the contested facts which, by the admission of the

Defendants appear to have no bearing on their decision to arrest

the Plaintiff because they would have arrested the Plaintiff in any

event, this Court should deny the Defendants' Motion for Summary

Judgment and grant the Plaintiff's Cross Motion. To the extent,

however, that the contested facts have a bearing on how the Court

should resolve the contesting Motions [arguendo], this Court should

then deny the Motions on the false arrest claim although, with

respect to the Plaintiff's Fourth Amendment strip search claim

n

and/or the Plaintiff's Fourth Amendment excessive detention, the

DCAoTurEtD:sNheouwldYorekn,terNewjuYdogrmkent in favor of the Plaintiff. February 17, 2002

Respectfully submitted,

RES I. MEYERSON pJM 4304] 396 Broadway-Suite # 601 New York, New York 10013 [212] 226-3310 ATTORNEY FOR PLAINTIFFS BY:

17

 
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U.S. District Court Southern District of New York (White Plains) CIVIL DOCKET FOR CASE #: 7:01-cv-06078-CM-MDF

CLOSED

Sarnicola v. The County of Westch, et al Assigned to: Judge Colleen McMahon Referred to: Magistrate Judge Mark D. Fox Demand: $0 Cause: 28:1331 Fed. Question: Other Plaintiff Nicole Sarnicola
V. Defendant The County of Westchester a municipal entity
Defendant John Does Weschester County Police Officers, individually and in their official capacities TERMINATED: 01/08/2002 Defendant Maria Beckley Westchester County Police Officer, Shield #189, individually and in his offical
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Date Filed: 07/05/2001 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by James I. Meyerson 396 Broadway Suite 601 New York, NY 10013 (212) 226-3310 LEAD ATTORNEY
represented by Jane Hogan Felix Westchester County Attorney's Office 600 Michaelian Office Building 148 Martine Avenue White Plains, NY 10601 (914) 995-2708 LEAD ATTORNEY
Mary Lynn Nicolas Westchester County Attorney's Office 148 Martine Avenue, Room 600 White Plains, NY 10601 (845) 995-2893 LEAD ATTORNEY
represented by Jane Hogan Felix (See above for address) TERMINATED: 01/08/2002 LEAD ATTORNEY
represented by Jane Hogan Felix (See above for address) TERMINATED: 01/08/2002
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capacity. TERMINATED: 01/08/2002
Defendant
Vincent Antonecchia Westchester County Police Officer, individually and in his official capacity. TERMINATED: 01/08/2002
Defendant
Officer Mark Pierro Westchester County Police Officer, individually and in his official capacity. TERMINATED: 01/08/2002
Defendant
West. Co. Police Sgt Thomas McGurn Westchester County Police Sergeant Thomas McGurn, individually and in his official capacity,

LEAD ATTORNEY
represented by Jane Hogan Felix (See above for address) TERMINATED: 01/08/2002 LEAD ATTORNEY
represented by Jane Hogan Felix (See above for address) TERMINATED: 01/08/2002 LEAD ATTORNEY

Date Filed 07/05/2001 07/05/2001 07/24/2001 08/02/2001
10/01/2001 10/01/2001 10/01/2001

#

Docket Text

1 COMPLAINT filed. Summons issued and Notice pursuant to 28 U.S.C. 636(c). FILING FEE $ 150.00 RECEIPT # 410837. (sv) (Entered: 07/06/2001)
Magistrate Judge Mark D. Fox is so designated. (sv) (Entered: 07/06/2001)
2 ANSWER to Complaint by The County of Westch, John Does, Beckley, Vinnie Antonucci, Mark Pierro (Attorney Jane Hogan Felix from the Firm: Westchester Co. DA) . (ll) (Entered: 07/25/2001)
3 ORDER RE SCHEDULING AND INITIAL PRETRIAL CONFERENCE:... If such a consent order is not filed within the time provided, a pretrial conference will be held for 9:00 9/28/01 , in courtroom 521, 300 Quarropas Street, White Plains, NY... ( signed by Judge Colleen McMahon ) (dc) (Entered: 08/03/2001)
Memorandum to Docket Clerk: 09/28/01 - Parties Present. Scheduling Order & Mag. referred attached. See documents for details. Submitted By: CM, USDJ. (dc) (Entered: 10/03/2001)
4 Order that case be referred to a Magistrate Judge for Any and All Discovery Disputes and Settlement Conference. Referred to Magistrate Judge Mark D. Fox . ( signed by Judge Colleen McMahon ) (pf) (Entered: 10/04/2001)
5 SCHEDULING ORDER: Consent Scheduling Order: Rule 26(a) discovery completed. No additional parties may be oined after 11/30/01. No amendments to the pleadings afte 11/30/01. All discvoery shall be completed on or before 12/30/01. Plaintiff's deposition shall proceed first and must be completed by 11/30/01. A joint pretrial order shall be filed on or before 2/02/02. Responses to

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10/15/2001 10/15/2001 10/16/2001 10/29/2001 01/08/2002
01/10/2002 02/07/2002 02/07/2002 02/07/2002 02/15/2002

in limine motions shall be filed by 2/16/02. . ( signed by Judge Colleen McMahon ); Copies mailed. (sv) (Entered: 10/05/2001)
6 ORDER: In order to facilitate the progress of pre-trial discovery of this litigation in a just, speedy and inexpensive manner, ...(see document for details)...So Ordered: ( signed by Magistrate Judge Mark D. Fox ); Copies mailed. (pf) (Entered: 10/16/2001)
8 Stipulation & ORDER of terms and conditions to govern the acquisition, retention and disclosure of documents, etc. (see document for details) So Ordered: . ( signed by Magistrate Judge Mark D. Fox ); Copies mailed. (ll) (Entered: 10/22/2001)
7 AMENDED COMPLAINT by Nicole Sarnicola (Answer due 10/29/01 for Mark Pierro, for Vinnie Antonucci, for Beckley, for John Does, for The County of Westch ) amending [1-1] complaint against Thomas McGurn; Summons issued. (ll) (Entered: 10/18/2001)
9 AMENDED ANSWER to Complaint by The County of Westch, Maria Beckley, Vincent Antonecchia, Mark Pierro, Thomas McGurn. (dc) (Entered: 10/30/2001)
10 PARTIAL STIPULATION OF DISMISSAL: IT IS HEREBY STIPULATED AND AGREED, by and between the undersigned, the attorneys of record for the plaintiff and deft's, County of Westchester and the individually named deft's, that whereas no party hereto is an infant, incompetent person for whom a committee has been appointed or conservatee and no person not a party has an interest in the subject matter of the actio, the above entitled action be, and the same hereby is dismissed as against deft's Westchester County Police Officer Ana Maria Beckley, Westchester County Police Officer Vincent Antonechia, Westchester County Police Officer Mark Pierro and Westchester County Police Officers sued herein as "John Does", with prejudice and without costs to either party as against the other. Cae to remain open against Thomas McGurn and Westchester County. SO ORDERED: ( signed by Judge Colleen McMahon ) (dc) (Entered: 01/09/2002)
11 Memo-Endorsement on letter addressed to Judge McMahon from Jane Hogan Felix, dated 01/08/02. Re: Request for a thirty day adjournment until 03/01/02, for the submission of all pretrial filings as mandated by your individual practice rules. ENDORSED: Application Granted. ( signed by Judge Colleen McMahon ); Copies mailed. (dc) (Entered: 01/11/2002)
12 NOTICE OF MOTION by The County of Westch, Thomas McGurn for summary judgment . Return date 3/1/02. (pf) (Entered: 02/08/2002)
13 RULE 56.1 STATEMENT filed by The County of Westch, Thomas McGurn (pf) (Entered: 02/08/2002)
14 MEMORANDUM OF LAW by The County of Westch, Thomas McGurn in support of [12-1] motion for summary judgment . (pf) (Entered: 02/08/2002)
15 Memo-Endorsement on letter addressed to Judge McMahon from James I. Meyerson, dated February 14, 2002. Re: seeking to filed a memorandum in opposition. ENDORSED: Granted - but try to make it shorter. ( signed by Judge Colleen McMahon ); Copies mailed. (sv) (Entered: 02/20/2002)

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02/22/2002 02/22/2002 02/22/2002 02/22/2002
03/01/2002
03/01/2002 03/01/2002 03/01/2002
03/01/2002 03/01/2002 03/07/2002
03/07/2002
03/11/2002 03/12/2002 09/23/2002 10/01/2002 10/01/2002

16 NOTICE OF CROSS MOTION by Nicole Sarnicola for summary judgment . Return date 3/1/02. (pf) (Entered: 02/22/2002)
17 RESPONSE by Nicole Sarnicola Re: [13-1] settlement notice (pf) (Entered: 02/22/2002)
18 RULE 56.1 STATEMENT filed by Nicole Sarnicola (pf) (Entered: 02/22/2002)
19 MEMORANDUM OF LAW by Nicole Sarnicola in support of [16-1] cross motion for summary judgment, and in opposition to [12-1] motion for summary judgment . (pf) (Entered: 02/22/2002)
20 MEMORANDUM OF LAW in Reply by The County of Westch in opposition to Co. Defendant's motion for summary judgment and in opposition to [16-1] cross motion for summary judgment, (ll) (Entered: 03/01/2002)
21 Trial BRIEF by The County of Westch and Thomas McGurn re: (ll) (Entered: 03/01/2002)
22 MEMORANDUM OF LAW by The County of Westch in support of motion to preclude. (ll) (Entered: 03/01/2002)
23 NOTICE OF MOTION by The County of Westch to preclude the plaintiff from offering certain irrelevant evidence at the trial of this matter and for such other and further relief . Return date 3/15/02. (ll) (Entered: 03/01/2002)
24 RULE 56.1 STATEMENT filed by The County of Westch (ll) (Entered: 03/01/2002)
25 unsigned pretrial ORDER . (); Copies mailed. (ll) (Entered: 03/01/2002)
REPLY by Nicole Sarnicola Re: [23-1] motion to preclude the plaintiff from offering certain irrelevant evidence at the trial of this matter and for such other and further relief (sv) (Entered: 03/08/2002)
26 RESPONSE by Nicole Sarnicola to [23-1] motion to preclude the plaintiff from offering certain irrelevant evidence at the trial of this matter and for such other and further relief (sv) (Entered: 03/08/2002)
27 PLAINTIFF'S TRIAL MEMORANDUM by Nicole Sarnicola. (dc) (Entered: 03/11/2002)
28 REPLY by Nicole Sarnicola Re: (sv) (Entered: 03/12/2002)
29 Letter filed addressed to All Counsel from Judge McMahon, dated 9-20-02, re: additional briefing for summary judgment. (dh) (Entered: 09/23/2002)
30 MEMORANDUM OF LAW by Nicole Sarnicola re: [29-1] miscellaneous . (sv) (Entered: 10/02/2002)
31 Memo-Endorsement on letter addressed to Judge McMahon from James I. Meyerson, dated September 30, 2002. Re: whether or not the parties are permitted a response to the other's primary submission....Endorsed: I don't think I should need further respones - but I'll let you know if I do. . ( signed by Judge Colleen McMahon ); (sv) (Entered: 10/02/2002)

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10/24/2002
10/25/2002 10/25/2002 11/14/2002 11/14/2002 11/27/2002 01/13/2003 01/13/2003 04/14/2003

32 MEMORANDUM AND DECISION granting in part, denying in part [16-1] cross motion for summary judgment, granting in part, denying in part [12-1] motion for summary judgment. CONCLUSION: Plaintiff is granted Summary Judgment against deft. McGurn on her Third Cause of Action and on her Fifth Cause of Action as related to the strip Search. Deft's are granted Summary Judgment dismissing the First, Second, and Seventh Causes of Action, and the remainder of the Fifth Cause of Action. The Cross-Motions for Summary Judgment on the Fourth and Sixth Causes of Action against Westchester County are denied. SO ORDERED: ( signed by Judge Colleen McMahon ); Clerk's Office Mailed Copies. (dc) (Entered: 10/24/2002)
33 Letter filed by The County of Westch addressed to Honorable Jude McMahon from Jane Hogan Felix, dated September 27, 2002, re: response to your Honor's request that the paties brief the following questions...... (sv) (Entered: 10/25/2002)
34 Letter filed by Nicole Sarnicola addressed to Judge McMahon from James I. Meyerson, dated April 17. 2002, re: supplement prior submissions. (sv) (Entered: 10/25/2002)
35 NOTICE OF APPEAL by The County of Westch, Thomas McGurn from [32-1] order . Copies of notice of appeal mailed to Attorney(s) of Record: Mary Lynn Nicholas, James I. Meyerson . (sv) (Entered: 11/19/2002)
Notice of appeal and certified copy of docket to USCA: [35-1] appeal by Thomas McGurn, The County of Westch ; Copy of notice of appeal sent to District Judge. $105.00 Fee Paid. Receipt #451543, C&D Forms Issued (sv) (Entered: 11/19/2002)
36 Memo-Endorsement on letter addressed to Judge McMahon from Lori A. Alesio, dated November 22, 2002. Re: Consel therefore jointly requests that this matter be stayed until the beginning of next year. ENDORSED: Stay granted. ( signed by Judge Colleen McMahon ); clk/m/cpys. (sv) (Entered: 12/02/2002)
37 STIPULATION OF DISCONTINUANCE: It is hereby Stipulated and Agreed by and among the parties to the matter that this matter is hereby discontinued with prejudice, each party to bear its own costs. So Ordered: ( signed by Judge Colleen McMahon ) Copies mailed by Clerk's Office (pf) (Entered: 01/14/2003)
Case closed. (pf) (Entered: 01/14/2003)
38 MANDATE OF USCA (certified copy) Re: [35-1] appeal by Thomas McGurn, The County of Westch ... In light of the Settlement Agreement and Stipulation of Discontinuance executed by the parties in the U.S. District Court for the SDNY..., the undersigned hereby stipulate that the appeal is hereby withdrawn without costs and without any attys' fees pursuant to Rule 42(b) of the Fed. Rules of Appellate Procedure. (CERTIFIED: 4/4/03) Copies mailed by Clerk's Office (pf) (Entered: 04/15/2003)

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