| Delgado v City of New York |
| 2011 NY Slip Op 06081 [86 AD3d 502] |
| July 28, 2011 |
| Appellate Division, First Department |
| Sandra Delgado et al., Respondents, v City of New York etal., Appellants, et al., Defendants. |
—[*1] Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Patrick J. Lawless of counsel),for New York City Housing Authority and Nicholas Witkowich, appellants. Ronald P. Berman, New York, for Brian Washington, appellant. Arnold E. DiJoseph, P.C., New York (Arnold E. DiJoseph III of counsel), forrespondents.
Order, Supreme Court, Bronx County (Patricia Anne Williams, J.), entered June 13, 2008,which, to the extent appealed from, as limited by the briefs, denied defendants-appellants'motions for summary judgment dismissing the complaint as against them, unanimously modified,on the law, to grant so much of the City defendants' motion as sought to dismiss the complaintagainst defendant James Masiello, to grant so much of the motion of defendant New York CityHousing Authority (NYCHA) and Nicholas Witkowich as sought to dismiss the claims allegingviolation of 42 USC § 1983 as against NYCHA, and otherwise affirmed, without costs.
This is an action to recover compensatory and punitive damages for personal injuries andproperty damage arising from the execution of a "no-knock" search warrant at plaintiffs'apartment, 5E, at 1065 Manor Avenue in Bronx County on May 25, 1994, at or around 12:30a.m. Because we conclude that the information furnished by the confidential informant in thiscase did not meet the two-prong test of reliability set forth in Aguilar v Texas (378 US108 [1964]) and Spinelli v United States (393 US 410 [1969]), we modify as describedbelow.
On the evening of May 18, 1994, an individual was arrested for possession of crack cocaine.The arresting officer was defendant Brian Washington. Washington's partner that day was OfficerRobert Masiello.[FN1]On the following day, May 19, 1994, prior to the individual's [*2]arraignment in Criminal Court, this individual, identified only as"John/Jane Doe," agreed to furnish the officers with information concerning narcotics saletrafficking in the area of his arrest. At his examination before trial, Washington could not recallwhether Doe was registered as a confidential informant, or whether any attempt was made toinvestigate his or her reliability. As the court below noted, the record is unclear as to whether thisindividual offered information as part of some cooperation agreement, whether he or she wasultimately convicted of anything, what his or her past criminal history may have been or anythingelse of substance concerning him or her. Nonetheless, defendant Nicholas Witkowich, thencaptain, approved the application for the warrant.
The sum and substance of the information provided by Doe was that he or she had receivedthe drugs in question from a skinny five-foot eight-inch male Hispanic, approximately 20 yearsof age, referred to only as "Green Eyes," in an apartment at 1065 Manor Avenue in the Bronx.Doe did not furnish the apartment number of the building at 1065 Manor Avenue where "GreenEyes" could be found. Rather, he or she told Masiello and Washington that "Green Eyes' "apartment was the first one on the left after exiting the elevator on the fifth floor and turning left.He or she further stated that the door to the apartment was brown, and that the windows of theapartment faced the rear of the building. Doe did not indicate that there were stickers on the doorof the apartment. Doe described the other occupants of the apartment as a female Hispanic called"Shorty" and a small female infant. Doe specified that no dogs were present and that "GreenEyes" possessed two guns, a 9 millimeter handgun and a Tech 9 semiautomatic. Doe told thepolice that "Green Eyes" sold drugs from the apartment from midnight to 8:00 a.m.
The record does not indicate that the officers conducted an investigation to corroborate theinformation provided by Doe prior to seeking a search warrant. The officers did not conductsurveillance of the subject apartment, did not attempt to supervise the informant or to makecontrolled buys from the apartment, or even try to confirm the identity of the apartment'soccupants by speaking to the superintendent or other residents of the building. Washingtontestified that he did not know of any evidence that would corroborate what the informant had toldhim concerning drug dealing from the subject premises.
Based on the information provided by Doe, Officer Robert Masiello sought a warrant fromCriminal Court to search the specific apartment premises at 1065 Manor Avenue described byDoe. The officer's affidavit stated, "I am informed by a confidential informant [CI], who isknown to me, but whose name is omitted to preserve his/her confidentiality, that on otheroccasions he/she has been inside the apartment on the fifth floor of 1065 Manor Avenue, Bronx,New York for the purpose of obtaining red top vials of crack/cocaine to sell on the street. I amfurther informed by the CI that to get to the apartment you enter 1065 Manor Avenue and takethe elevator to the fifth floor exit elevator to the left and the apartment is the first apartment onleft, a brown door. CI further informs me that he/she was last inside the apartment on May 18th,at approximately midnight for the purpose of receiving 1 row of vials to sell on the street whereeach row consists of 25 vials of red top crack/cocaine and each vial sells for $5.00. CI furtherinforms me that while inside the apartment 'Green Eyes' a male hispanic light skinnedapproximately 5'8" tall, [*3]skinny took out a brown bag from thebedroom and went to the kitchen and removed a row of vials and CI observed approximately anadditional 6-7 rows of vials. CI further informs me that while he/she was inside the apartment'Green Eyes' went in the bedroom in the apartment and came out and on the kitchen table placeda 9 millimeter automatic tech 9 semi-automatic machine pistol [sic]. Deponent furtherstates that said informant's reliability is supported by this statement against penal interest as wellas the strict detail and description with which said informant articulates his/her observations."
On May 19, 1994, at 4:50 p.m., a justice of the Supreme Court, Bronx County, granted theapplication for the no-knock warrant. The warrant was valid for a period of 10 days and gave thepolice authority to enter the apartment without first announcing their presence based upon theallegations in the moving affidavit that the drugs were easily disposable and the alleged presenceof two guns in the apartment. The warrant authorized a search for narcotics and firearms, to beexercised "at all hours" within the next 10 days, at the premises described as "the apartment [ ]onthe fifth floor, to get to the apartment take the elevator to the 5th floor, exist [sic]elevator, make left and the apartment is the first apartment on the left, brown door." The issuingcourt expressly found that adequate grounds existed for authorizing any executing officer to enterthe subject premises without giving notice of his authority or purpose.
On March 19, 1994, Washington conducted a check to ensure that no other law enforcementagency had an active investigation on the 5th floor of the premises. The results were negative,neither confirming nor calling into question the reliability of Doe's information.
On May 20, 1994, Sergeant Tennant went to 1065 Manor Avenue and confirmed that the"[apartment] on the 5th floor is marked 5E it's a brown door," and also remarked upon thepresence of "old stickers on the door." These stickers, it should be noted, were not described byDoe, despite their prominence on the door as evident in the photographs in the record. On May24, 1994, a check was made to see if there was a telephone listing for apartment 5E, with norecords found.
The warrant was executed by a team of about 12 armed officers of the Housing Police (then abranch of NYCHA) at about 12:50 a.m. on May 25, 1994 at apartment 5E. Plaintiff SandraDelgado and her six children, ranging in age from 9 to 17 years old, were sleeping in theirtwo-bedroom apartment when the officers battered down the door and entered the apartment.Plaintiffs testified that they hit the floor, face down, upon the command of the officers. Juan, theeldest child (then age 17), was pushed from behind by two officers and taken to the ground,where guns were put to his head. Gregory (then 15), face down on the floor, had a gun held to hishead until officers could handcuff him, and was informed that he was under arrest. At no timewas plaintiff mother shown the warrant. Plaintiff mother and all but the two youngest childrenwere handcuffed and all of them, with the exception of the youngest child, were held in thehallway outside the apartment for three hours while the officers searched the apartment,overturning furniture, slashing sofas and mattresses, and destroying property in the bedroomsincluding the children's posters and baseball cards.
Plaintiff mother was brought to the fourth floor of the building and questioned concerningthe presence of drugs or guns on the premises. When plaintiff mother replied in the negative,[*4]officers informed her that if they found drugs or guns shewould "lose [her] kids." Several of the children were questioned regarding the presence of drugsand guns in the apartment. The children testified that officers told their mother, in their presence,that if they found any crack bottles, the children would be going to a foster home. Candida (thenage 11) heard officers say she could be taken away from her mother and "started crying." At theend of the search, finding no drugs or weapons on the premises, the police left.
Plaintiffs testified that subsequent to the search they suffered emotional trauma. Plaintiffmother testified that she had trouble sleeping for two years after the incident and that she stillsuffered from depression and periodic nightmares. Enrique (then 13) testified that he had troublesleeping and was able to sleep only "three, four hours" nightly. Juan testified that his asthmaworsened after the search and that he also suffered from sleep disturbances. Plaintiffs Gregoryand Candida felt sufficiently unsafe that they slept away from the apartment for some period oftime after the incident. Candida testified that she had nightmares and difficulty studying; Enrique(then age 13) testified that he could not walk down the streets because he feared the police were"watching" him.
Plaintiffs brought actions against the various defendants, later consolidated, alleging, interalia, false arrest, unlawful imprisonment, negligence, assault and battery, and violations of 42USC § 1983.
Defendants moved for summary judgment on the ground that they were protected byqualified immunity when executing a valid search warrant. The motion court granted summaryjudgment in favor of the individual officers who entered the apartment in reliance on the faciallyvalid warrant, but denied the motions of defendant Witkowich, the captain in charge of theinvestigation and search, and defendants Washington and Masiello. The court concluded that thejustice who had issued the warrant had no independent basis upon which to make a quantitativeor qualitative analysis of the information before him as to the reliability of the informant or of theinformation he or she provided, and thus, that the search warrant was not properly issued and thesearch conducted pursuant thereto was invalid.
It is elementary that no warrant shall issue except on probable cause. New York Courts applythe two-prong Aguilar-Spinelli test in evaluating the hearsay information provided by anundisclosed informant (see Aguilar v Texas, 378 US 108 [1964]; Spinelli v UnitedStates, 393 US 410 [1969]). The application for a search warrant must demonstrate to theissuing magistrate both (1) the veracity or reliability of the informant, and (2) the basis of theinformant's knowledge. "[T]he magistrate must be informed of some of the underlyingcircumstances from which the informant concluded that the narcotics were where he claimedthey were, and some of the underlying circumstances from which the officer concluded that theinformant, whose identity need not be disclosed, was 'credible' or his information 'reliable' "(Aguilar, 378 US at 114 [citation omitted]).
The reliability dimension requires a showing either that the informant is credible or, in theabsence of such a showing, that the specific information given is credible (People vDiFalco, 80 NY2d 693, 696-697 [1993]). Factors to consider in evaluating reliability includewhether the informant has supplied accurate information to the police in the past, whether theinformant's [*5]statements were made under oath, whether theinformant has made an admission against penal interest, or whether the details of the informant'sstory have been corroborated by the police (see People v Calise, 256 AD2d 64, 65[1998], lv denied 93 NY2d 851 [1999]). In analyzing this component, corroborationmeans "the traditional sort of independent corroboration by the police in checking out the truth ofthe informant's tip through information obtained from a source other than the informant'sstatement" (DiFalco, 80 NY2d at 698).
The basis of knowledge component is distinct from the veracity component and must beindependently satisfied; this dimension requires that the information provided by the informantbe corroborated or confirmed through details sufficient in number and suggestive of, or directlyrelated to, the criminal activity informed about (see People v Elwell, 50 NY2d 231, 234[1980]). In a proper case, the specificity and accumulation or quality of detail may "corroborate"or "self-verify" the basis for the informant's knowledge by showing that the informant must haveobtained the information from firsthand observation of that activity (id. at 241-242).
We find that the police did not have sufficient independent verification to satisfy the veracitycomponent of Aguilar-Spinelli, nor did they possess the requisite knowledge necessary tosatisfy the basis of knowledge component of the test. The police had no basis to believe that theconfidential informant was reliable—indeed, he or she had never before providedinformation leading to an arrest (compare People v Hanlon, 36 NY2d 549, 558 [1975][finding that an affidavit established the reliability of an informer where the informer stated thathe had purchased narcotics from defendant, there had been a previous communication of accurateinformation, and there was corroborative verification by the police]; People v Salcedo,309 AD2d 542, 543 [2003], lv denied 1 NY3d 634 [2004] [the informant's veracity wasestablished where, inter alia, two other informants with histories of providing accurateinformation corroborated information of a third informant, and the information provided by allthree informants was corroborated by independent police investigation]; People vStroman, 293 AD2d 350 [2002], lv denied 98 NY2d 702 [2002] [informant's veracitywas established by a declaration against penal interest together with corroboration from a sourceother than the informant's statement]).
Plaintiffs' expert, Henry Branche, a retired sergeant in the police force, averred that pursuantto standard procedures, confidential informants may not be utilized before they are properlyregistered and approved. In an emergency (which this was not, given that six days elapsedbetween issuance and execution of the warrant), a confidential informant may be utilizedprovided permission is obtained from a commanding officer. Branche noted that where aprospective confidential informant is the defendant in an active criminal case, permission forregistration must first be obtained from the assistant district attorney.
Defendants assert that the informant's statements were against penal interest, and therefore,reliable. On this record, however, we cannot state that the informant's statements weresufficiently contrary to his or her penal interest so as to establish reliability under the first prongof Aguilar-Spinelli (see People v Burks, 134 AD2d 604, 605 [2d Dept 1987] [theinformant's statement that he had, on unspecified past occasions, purchased cocaine from thedefendant, was not sufficiently against penal interest to establish reliability]). According to theaffidavit in support of the search warrant, Doe informed that "on other occasions" he or she hadbeen inside the premises for the purpose of obtaining red top vials from "Green Eyes" to sell onthe street, and that on one occasion, May 18th, he or she had purchased one row of vials to sellon the street. It is not clear, on this record, that this statement, admitting possession of smallquantities with intent to sell them on the street, was likely to be used against Doe.[*6]
Even if it could be said that the first prong ofAguilar-Spinelli was satisfied by the alleged statement against penal interest, nocorroborative verification whatsoever was performed by the police prior to issuance of thewarrant. The only confirmation of information provided by the informant occurred subsequent tothe issuance of the warrant, and that investigation consisted solely of verifying that no landlinewas associated with the apartment, and that the apartment in fact had a brown door and waslocated to the left as one exited the elevator. The police also ascertained that no other agency hadthe premises under investigation. This information, as noted by the lower court, was entirelyunhelpful in establishing the informant's reliability or the reliability of his information, evenassuming that the corroboration occurred prior to the issuance of the warrant. Furthermore, thefact that the officer dispatched to the apartment noted the presence of prominent stickers on thedoor, which had not been described by Doe, should have raised questions about the reliability ofthe information.
The second dimension of Aguilar-Spinelli, the informant's basis of knowledge, wasnever established by corroborative details of such quantity and quality as to be indicative ofcriminality (see Elwell, 50 NY2d at 234-235). Indeed, the only attempt to determinewhether criminal activity was afoot was to ascertain whether other law enforcement agencieswere conducting investigations of the same premises, the results of which, as noted above, werenegative, neither proving nor disproving anything. The police failed to inquire concerning theoccupants of the subject apartment, failed to speak to the building superintendent, failed toconduct surveillance of the apartment, made no attempt to conduct controlled buys from theapartment, and otherwise failed to corroborate the information supplied by Doe.
It was on the basis of this criminal's information—an informant with no track record,no proven reliability and whose information concerning drug trafficking on the premises was noteven minimally corroborated—that approximately 12 members of the NYCHA PoliceDepartment crashed through the door of plaintiffs' apartment in the middle of the night, terrifieda mother and six children, held them for hours while they searched their apartment, destroyingtheir property and threatening plaintiff mother that they would put her children in foster care ifshe did not tell the truth about the presence of drugs or guns in the apartment.
The individual defendants argue that they are entitled to dismissal of the charges againstthem because they enjoy a qualified immunity when executing a facially valid search warrant. "Agovernment official performing a discretionary function is entitled to qualified immunityprovided his or her conduct does not violate clearly established statutory or constitutional rightsof which a reasonable person would have known" (Liu v New York City Police Dept.,216 AD2d 67, 68 [1995], lv denied 87 NY2d 802 [1995], cert denied 517 US1167 [1996]). To be entitled to qualified immunity, it must be established that it was objectivelyreasonable for the police officer involved to believe that his or her conduct was appropriate underthe circumstances, or that officers of reasonable competence could disagree as to whether his orher conduct was proper (see Simpkin v City of Troy, 224 AD2d 897, 898 [1996]).
The lower court properly determined that only those police officers or other governmentagents who executed the no-knock warrant are entitled to qualified immunity. The officers whoexecuted the warrant did so with the understanding that a valid search warrant had been issued.However, the same cannot be said for defendants Witkowich and Washington, who initiated theissuance of the search warrant and did little, if anything, to establish the reliability of theconfidential informant or the information supplied by him or her (see Rossi v City ofAmsterdam, 274 AD2d 874, 877 [2000] [where the officers executed a no-knock warrant atthe wrong [*7]premises, albeit premises identified in the warrant,the court found that the officers who had conducted the investigation, applied for the no-knockwarrant, supplied the description of the premises and supervised execution of the warrant werenot entitled to summary judgment on the basis of qualified immunity]).
We are further disquieted by the manner in which the search warrant was executed. Uponentering the apartment, the police encountered not "Green Eyes" and "Shorty" with an infant, asdescribed by the informant, but plaintiff mother and her six sleeping children. At that point, areasonable police officer should have realized that an error had been made (cf. Maryland vGarrison, 480 US 79, 88 [1987]). "Qualified immunity does not provide a safe harbor forpolice to remain in a residence after they are aware that they have entered the wrong residence bymistake. A decision by law enforcement officers to remain in a residence after they realize theyare in the wrong house crosses the line between a reasonable mistake and affirmativemisconduct" (Simmons v City of Paris, Tex., 378 F3d 476, 481 [5th Cir 2004]). We notethat while the informant identified the occupants of the apartment as "Green Eyes," "Shorty" andan infant, the warrant itself merely identifies the premises to be searched and not the occupants.Thus, it does not appear that the officers executing the warrant were aware of the error.
As to the section 1983 claim, a person has a private right of action under 42 USC §1983 against police officers who, acting under color of law, violate federal constitutional orstatutory rights. A complaint alleging gratuitous or excessive use of force by a police officerstates a cause of action under the statute against that officer (see Hodges v Stanley, 712F2d 34, 35 [2d Cir 1983]).
Captain Witkowich argues that the section 1983 claim should be dismissed as to him. Wedisagree. Although the captain was not present at the execution of the warrant, he was directly incharge of and authorized the operation. Indeed, the official police report of the execution of thewarrant states: "Entry to the location was made at 0150 hours by members of the Bronx NarcoticsEnforcement Unit under the direction and supervision of Captain NICHOLAS WITKOWICH."
The section 1983 claim, however, should be dismissed as against defendant NYCHA.Plaintiffs have not demonstrated that any custom or official policy of NYCHA caused theclaimed violation of their constitutional rights (see Rossi, 274 AD2d at 878).[FN2][*8]
We grant the motion of defendant James Masiello todismiss the complaint as to him. Robert Masiello, not James Masiello, was the officer whosubmitted the affidavit in support of the search warrant. Thus, James Masiello is not the properparty. Concur—Mazzarelli, J.P., Friedman, Catterson and Manzanet-Daniels, JJ.
Footnote 1: James Masiello, not RobertMasiello, is named as a defendant herein. As discussed below, we dismiss the complaint asagainst him.
Footnote 2: To the extent the officersexecuting the warrant were acting within the scope of their employment, the negligent hiringclaim against NYCHA is not viable (see Karoon v New York City Tr. Auth., 241 AD2d323, 324 [1997]).