State of New York
Supreme Court : County of Monroe

Plaintiffs,

- against -

Town of Irondequoit, William Frey,
Irondequoit Police Chief, The Village
of East Rochester, William Young,
East Rochester Chief of Police, Michael
R. Lesniak, Ronald Regnosky and
John Doe (meaning and intending to be
several officers of the East Rochester
and Irondequoit Police Departments,

Defendants.

_______________________________
Philip J. Maenza, Joseph Brewer, Mary
Ann Maenza and Michael Brewer,

Plaintiffs,

- against -

Defendants.

_______________________________

ANDREW V. SIRACUSE, J.

Two actions were commenced arising out of the same incident, the execution of a search warrant on the home of plaintiff Philip Maenza. The plaintiffs have alleged causes of action in negligence, violation of constitutional rights under 42 USC § 1983, assault, "false arrest", "injury to reputation", negligent training and/or supervision of police officers, false imprisonment, and (against defendants Mark Kremer and Michael Lesniak) defamation. These actions were subsequently consolidated, and virtually all parties have now moved for summary judgment. The plaintiffs, in addition, have moved to dismiss certain defenses.

In the fall of 1994 one Mark Kremer, facing criminal charges, offered information to East Rochester police officer Michael Lesniak about a large quantity of marijuana he had seen one night in a house in Irondequoit. Lesniak was assigned to a multi-agency drug task force that included officers from the towns of Brighton and Irondequoit. Some of the information supplied by Kremer was false, and none of it was corroborated; attempts at drug buys from the address furnished by Kremer were unsuccessful, if only because nobody answered the door between the hours of 10 to 6, when the task force officers had their shifts.

Lesniak nonetheless applied for a search warrant, which was granted by Irondequoit Town Justice Joseph Genier on October 17, 1994. On October 18, 1994, various police officers came to the Maenzas' home to execute the search warrant, which contained no provision for arresting any of the residents of the house. Plaintiffs Philip Maenza and his son Joseph Brewer were in their car and heading out the driveway when the police arrived. The police immediately blocked the driveway and ordered Maenza and Brewer out of the car; according to the deposition testimony of Daniel Varrenti, the officer in charge, he observed the car leaving and told the officers to "effect the arrest". (T 49).

Maenza was handcuffed, questioned, and then led into his house, where he was questioned further by task force officers; he was held for 30 to 60 minutes. Brewer, who exited the car on the driver's side because the door was not working on the other side, was pushed to the ground and handcuffed as well. The plaintiffs gave statements covering their whereabouts on several days when Kremer claimed to have contacted them. These statements were not incriminating and no drugs were found on the premises. None of the plaintiffs was ever prosecuted. (Neither Mary Ann Maenza nor Michael Brewer were home at the time.)

The complexity of the plaintiffs' action is more apparent than real, for most of the causes of action duplicate each other. New York recognizes an action for false imprisonment but none for false arrest, and in the absence of any claim that the arrest was pursuant to government policy the Civil Rights violation is simply another version of the same cause of action (see, Crosby v Hare, 932 F Supp 490 [Larimer, J]). Loss to reputation is not an actionable tort; it is an element of damages to be proved and may be invoked in defamation or false imprisonment. In essence the plaintiffs' claim can be reduced to trespass, assault (actually battery), false imprisonment, and negligent training and supervision.

There is simply no action for trespass when the police are acting pursuant to a facially valid search warrant. The essence of a warrant is to allow and to regulate intrusions into protected areas, and if police were made liable for errors and flaws not visible on the face of the warrant their job would be impossible. This is black letter law.

Nor have plaintiffs made out a cause of action for negligent training of the police officers. There is such a cause of action in New York (Barr v Albany County, 50 NY2d 247), but it must be based on something other than evidence which might support a claim for false imprisonment occasioned by a warrantless arrest. In Barr the Court of Appeals dismissed a negligent training/supervision claim, stating:

Plaintiffs' papers in opposition to defendant Sheriff's motion for summary judgment contained attorneys' affidavits, which stated, in conclusory fashion, that a question of fact exists as to the issue whether defendant Sheriff should have supervised his deputies in such manner so as to prevent the allegedly tortious acts committed by the latter. No attempt was made to demonstrate how such direct supervision could have altered the consequences of the Deputy Sheriffs' actions, nor do plaintiffs set forth any evidence that the Deputy Sheriffs lacked training in proper law enforcement techniques. Further, the transcripts of the examinations before trial of the Sheriff and his deputies do not cure these deficiencies (50 NY2d 247, 257-258).

There is not even this much before the court on the case. The plaintiffs contend that Officer Lesniak had no training in the preparation of warrant applications. Even if this is true, any defects in his application are of no legal import once the warrant is issued. No cause of action lies against the town Justice; so even if the Town had improperly trained and supervised Lesniak, no right of action accrues in plaintiffs' favor.

Plaintiffs have argued that Lesniak's negligent or reckless failure to investigate Kremer's allegations deprives him of a qualified privilege and renders him liable for defamation in bringing that information to Justice Genier. However, police officers preparing a warrant application are protected by absolute privilege, not a qualified one; see Restatement, Second, Torts § 587. This rule is based on the need for absolute access to the criminal justice system, and an aggrieved plaintiff's remedy is in malicious prosecution. The Restatement makes it clear that the rule applies to one who "applies for a search warrant by a written complaint under oath, made to the proper officer, charging another with crime" (Comment b). While no New York court has construed this language in the present contact, plaintiffs have not shown a single case where an officer was sued in defamation for statements made to an issuing judge, nor has the court been able to find any.

The plaintiffs' causes of action for negligence, defamation , negligent supervision, trespass, civil rights violations and injury to reputation are thus all dismissed.

Assault (which here involved touching, and here is more properly termed battery) is inextricably connected with false imprisonment. If the police were entitled to act as they did, their touching and threatened touching would be privileged; if not, not. The case, then, turns on the nature of the detention and whether it was privileged.

As this court recently stated in Carvotta v City of Rochester, "False imprisonment requires a showing of an intentional and nonconsensual confinement, not otherwise privileged, of which the plaintiff was aware. A warrantless arrest without probable cause is in most every case an appropriate basis for a false imprisonment claim."

There are, however, several cases that discuss the rights of police to detain residents or occupants of premises being searched. The first important case is Barr, cited above, which dealt with the wholesale detention of party-goers at a drug raid near Albany. The Court of Appeals held

The warrant authorized only the search of the premises, and did not empower the Deputy Sheriffs to arrest those persons found thereon. As this court observed in Broughton v State of New York, 37 NY2d 451: "Whenever there has been an arrest and imprisonment without a warrant, the officer has acted extrajudicially and the presumption arises that such an arrest and imprisonment are unlawful * * *[W]here the arrest or imprisonment is extrajudicial, that is, without legal process or color of legal authority, it is not necessary to allege want of probable cause in a false imprisonment action * * * Indeed, the burden is on the defendant to prove the opposite." (Id., at p. 458) (50 NY2d 247, 255, some citations omitted)

Since Barr, however, there have been several important cases that retreat (or seem to retreat) from this position. Most important is Michigan v. Summers, 452 US 692,in which a divided Supreme Court held that a warrant to search allowed at least the temporary detention of the residents:

Of prime importance in assessing the intrusion is the fact that the police had obtained a warrant to search respondent's house for contraband. A neutral and detached magistrate had found probable cause to believe that the law was being violated in that house, and had authorized a substantial invasion of the privacy of the persons who resided there. The detention of one of the residents while the premises were searched, although admittedly a significant restraint on his liberty, was surely less intrusive than the search itself. Indeed, we may safely assume that most citizens -- unless they intend flight to avoid arrest -- would elect to remain in order to observe the search of their possessions. Furthermore, the type of detention imposed here is not likely to be exploited by the officer or unduly prolonged in order to gain more information, because the information the officers seek normally will be obtained through the search, and not through the detention. Moreover, because the detention in this case was in respondent's own residence, it could add only minimally to the public stigma associated with the search itself, and would involve neither the inconvenience nor the indignity associated with a compelled visit to the police station. In sharp contrast to the custodial interrogation in Dunaway, the detention of this respondent was "substantially less intrusive" than an arrest.

***

Thus, for Fourth Amendment purposes, we hold that a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted.

This case has been echoed in New York, most notably by People v Hicks (68 NY2d 234), which established that a police detention and transport of a suspect so that an on-the-scene showup might take place was permissible even absent probable cause, because"not every seizure is an arrest"; in that case:

Defendant was not handcuffed, there was no show of force, he was permitted to park the car nearby before accompanying the police, he was not taken to the police station, the total time and distance involved were very brief, he was told the specific, limited purpose of the detention, and no information was asked of him after the initial inquiry. In direct contrast are Dunaway v New York , where defendant was taken from his home in a police car to the station, placed in an interrogation room, given Miranda warnings and questioned at length by officers; People v Battaglia , where defendant was handcuffed and his pockets searched, and he was placed in a police vehicle without any explanation of the circumstances while the police determined whether a crime had occurred; and People v. Henley, 53 NY2d 403, where, having first been confronted by a drawn gun, defendant was handcuffed, placed in a patrol car, driven in the patrol car to the crime scene and then home, while the police looked for evidence (ultimately found in his apartment) that would justify his arrest. Significantly, in none of those cases was defendant informed of the nature of the detention and that he would be released unless arrested.

However, this is very clearly a different situation from Hicks. Plaintiffs were handcuffed without a word, Maenza was questioned extensively, the detention lasted long after the search, the reason for the detention was not explained, and so on. Ever since People v Yukl courts have looked to "what a reasonable man, innocent of any crime, would have thought had he been in the defendant's position" (People v Yukl, 25 NY2d 585, 589) in determining if conduct was an arrest. This conduct has all the earmarks of an arrest and, indeed, the officers thought they were making one.

Michigan v Summers does not compel an opposite result; in the section cited above the Supreme Court noted that "the detention of this respondent was 'substantially less intrusive' than an arrest".

Irondequoit has cited Crosby v Hare (932 F Supp 490), a recent case decided by Judge Larimer which held it reasonable for officers' safety that a naked woman (she was showering at the time) be held, first at gunpoint and then in handcuffs, while the officers conducted a security sweep of the house. Larimer cites Michigan v Summers, stating that "[t]hese facts simply do not demonstrate any constitutional violation".

These cases are in no way comparable. It was unreasonable for the police to execute a full-blown arrest of the plaintiffs in this case; while not trying to second-guess the officers, it would have been simpler to ask them to stay in their car or accompany the officers during the search. There was no suggestion of a danger to the officers beyond a generalized belief that drug traffickers might be armed.

In any event, no case -- not even Crosby -- permits a warrantless arrest during the execution of a search warrant that turns up no evidence; only some form of detention that falls short of an arrest. Since the conduct here is an arrest, under Yukl and the further explanations of the test in Hicks, the plaintiffs have made out their case. As in Carvotta, there must be summary judgment for plaintiffs Philip Maenza and Joseph Brewer on their claims for false imprisonment and battery, and because the officers were acting in their official capacity the municipalities, as their employers, are answerable as well. However, no colorable derivative claims exist, and plaintiffs Mary Ann Maenza and Michael Brewer have shown no damages as a result of the conduct complained of; the actions seeking damages on their behalf are dismissed. All other causes of action are dismissed. Counsel for plaintiffs may prepare the order.

Andrew V. Siracuse, J.S.C.