Eve-of-Trial Motion to Preclude Evidence – Sample – January 2017

Here is a sample motion in limine (i.e., immediately prior to trial) seeking rulings favorable to the plaintiff (i.e., the person who filed the lawsuit) before the jury starts hearing the evidence. Hope it helps you!




   Plaintiff respectfully submits this Memorandum of Law in support of his motions in limine.  Specifically, plaintiff Fernando Colon respectfully submits this motion pursuant to the Federal Rules of Evidence (“FRE”) to preclude any reference to: 1) plaintiff’s prior arrest history; 2) non-party witness Bobby Lee’s criminal history; and 3) to permit plaintiff to treat Det. Tisdale and any other NYPD officer-witnesses as hostile.


in limine motion   This case arises from an incident which took place on June 24, 2011.  On that date, at approximately 6:45 p.m., plaintiff Fernando Colon was parked and sitting inside his vehicle in the vicinity of 945 St. Nicholas Avenue, New York, New York.

After an individual named Bobby Lee entered plaintiff’s vehicle, police officers arrived and ordered the individuals in the car to exit.  Detective Tisdale approached the vehicle, in civilian clothes, with his firearm drawn.  After Det. Tisdale approached with gun drawn, he pulled the individuals out of the vehicle, handcuffed them, and made them wait outside the vehicle, near the curb.  The area is a heavily populated, urban, mixed residential and commercial area.  Mr. Colon did business in the area.

Det. Tisdale returned to the vehicle and looked inside.  He claims he then smelled marijuana.  He searched the front passenger compartment and discovered nothing; he searched the rear passenger compartment and, when he opened the closed compartment that held the folding rear seat Detective Tisdale discovered a sealed glass jar; inside the jar he observed a sealed and wrapped ziplock bag; inside the bag he observed marijuana.  He then continued to search, and opened the other rear seat compartment and discovered approximately $20,000 in cash.

in limine motion   The plaintiff was arrested.  The next day, Det. Tisdale sought and obtained a search warrant for plaintiff’s vehicle.  A search of the vehicle, pursuant to the warrant, uncovered nothing.  The criminal case against plaintiff was dismissed on November 10, 2011, on speedy trial grounds.  Plaintiff’s money and van were not returned to him until January 2012.


   The purpose of a motion in limine is to allow the trial court to rule in advance of trial on the admissibility of certain forecasted evidence.  See Luce v. United States, 469 U.S. 38, 40 (1984)(explaining that the motion in limine is used to “exclude anticipated prejudicial evidence before the evidence is actually offered”).  See also Palmieri v Defaria, 88 F.3d 136, 141 (2d Cir. 1996)(‘The purpose of an in limine motion is to aid the trial process by enabling the Court to rule in advance of trial on the relevance of certain forecasted evidence, as to issues that are definitely set for trial, without lengthy argument at, or interruption of, the trial.”).

in limine motion   As an initial matter, evidence must be “relevant” to be admissible.  Fed. R. Evid. 402.  The Federal Rules of Evidence define “relevant” evidence as that “having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable that it would be without the evidence.”  Fed. R. Evid., 401.  Further, Federal Rule of Evidence 403 grants a district court discretion to exclude even relevant evidence on the grounds of prejudice, confusion, or waste of time:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Fed R. Evid. 403.

Thus, to be admissible, evidence must be both (1) relevant and (2) not outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.  See Fed. R. Evid. 402 and 403.  Further, Rule 404(b) states, in relevant part, “[e]vidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.  This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”  Fed. R. Evid. 404(b).


in limine motion   Defendant should be precluded from any reference to plaintiff’s prior arrest.  Plaintiff’s prior arrest when he was seventeen (17) years old (approx. 1999) is of minimal probative value and is unduly prejudicial given, inter alia, the length of time between the arrest and the events underlying this claim.  It should be inadmissible for any purpose.  See Fed. R. Evid. 404, 609(b).


   Defendants should be precluded from asking questions or presenting any evidence of Bobby Lee’s criminal history pursuant to Rules 401, 402 and 403 as totally irrelevant, will confuse the jury, is a waste of time and is unduly prejudicial.

At his deposition, Bobby Lee stated that he had three prior arrests that resulted in convictions, and that the first arrest occurred in either 2006 or 2007.  These arrests are wholly irrelevant not only to this cause of action but to his recollection and credibility as a witness to the June 24, 2011 incident involving Detective Jerome Tisdale and the New York City Police Department.

in limine motionBobby Lee’s criminal history should be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury…”  Fed. R. Evid. 403.  “In making a Rule 403 determination, courts should ask whether the evidence’s proper value “is more than matched by [the possibility]… that it will divert the jury from the facts which should control their verdict.”  (internal citations omitted).  Potenza v. City of New York, 2009 U.S. Dist. LEXIS 60877 (E.D.N.Y. July 15, 2009).  Here, the prejudicial impact of Bobby Lee’s criminal history is far outweighed by any probative value that such evidence might have.  Accordingly, the Court should preclude the defendants from introducing such evidence under Rule 403.


   Rule 611(c) provides that leading questions ordinarily should not be used on direct examination, except “when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.”  Fed. R. Evid. 611(c)(2).  Plaintiff submits that Detective Tisdale’s testimony, as well as any other NYPD officer-witness will be adverse to Plaintiff, and therefore requests permission to treat him as hostile.


in limine motion     For the reasons stated above, plaintiff respectfully requests that the Court exclude: 1) plaintiff’s prior arrest history; 2) non-party witness Bobby Lee’s criminal history; and 3) to permit plaintiff to treat Det. Tisdale and any other NYPD officer-witnesses as hostile.

Dated:  White Plains, New York
January 24, 2017

Respectfully submitted,

Attorneys for Plaintiff

Office + Post Office Address:
44 Church Street
White Plains, New York 10601
(914) 771 7711

Refinance of $1.1 Million Commercial Building Completed – November 2015

Summary of the Transaction

Refinance of Commercial BuildingMartin + Colin, P.C. announces the successful refinance of an $1.1 Million commercial building in the Bronx, New York.  The building is a standard commercial building containing, among other tenants: a pizzeria, a ribs and wings restaurant, a Chinese-style restaurant and a discount variety store.  The owner sought refinancing because his commercial mortgage was coming due.  The experienced real estate lawyers at Martin + Colin, P.C. were able to assist the owner in bringing the refinancing to a successful closing.

Our Expertise Saved the Client Money

Among other important provisions, the real estate closing attorneys at Martin + Colin, P.C. successfully negotiated a clause permitting the future assignment of the mortgage.  Here’s the valuable clause:

  • Assignment of Mortgage. Upon Borrower’s written request, Lender shall permit an assignment of this Mortgage upon repayment of the Loan in full in accordance with the terms of the Note provided that the Borrower pays Lender an assignment fee of 0.25% of the Loan Amount in furtherance of the assignment at the time of assignment.

Refinance of Commercial BuildingWhat is the significance?  Unlike home loans, commercial loans often last only five years.  During the loan period, the borrower usually pays interest only.  Thus, at the end of the five year loan period, the borrower will still owe $1.1 Million.  The borrower will need to find another bank to lend him $1.1 Million for another five year loan period.  When the borrower identifies that new lender, the closing is scheduled.  Immediately after closing on the new loan, the new lender will want to record the new mortgage, at borrower’s expense.  The recording tax on that new mortgage could add thousands of dollars to the borrower’s closing costs.  However, because we negotiated the “Assignment of Mortgage” clause into the loan documents, the cost to the borrower to record the next mortgage for the next five year loan will be more like zero rather than several thousand dollars.  That’s a big savings.

We Can Make Your Real Estate Transaction A Success

Refinance Commercial BuildingThe experienced real estate lawyers at Martin + Colin, P.C. can apply their expertise and help you with your real estate transaction.  Call us at (914) 771 7711.

Bronx Auto Accident Case Settled One Year Later for Six Figures – March 2016

Martin + Colin, P.C. announces a settlement for a passenger who suffered personal injuries during a car accident on Baychester Avenue in The Bronx.  The car crash victim, a Bronx resident, was the front seat passenger in the automobile.  Our experienced car accident lawyers were hired within weeks of the crash.  We immediately set out to protect the injured passenger’s rights and obtain for him the financial compensation he deserved.  Today, we are pleased to report that, within one year of the accident, we were able to secure a six figure settlement for our client.

Car Accident FactsCar Accident at Intersection

One night in August 2015, our client was a passenger in a vehicle traveling northbound on Baychester Avenue at or near the intersection of Givan Avenue.  The other driver crossed over the double yellow line and collided head on with the vehicle in which our client was a passenger.  The airbags deployed.

Physical Injury and Medical Treatment Facts

Our injured client went directly from the accident scene to Jacobi Medical Center by ambulance.  His chief complaints at the hospital were pain in his neck, lower back and chest.  A chest x-ray and EKG were performed at hospital, which showed no significant abnormalities.

Our injured client was discharged with a prescription for Motrin.  He was instructed to follow up with his primary care physician if his pain was not improving or if he experienced an increase in symptoms.

Orthopedic Facts

As our injured client experienced persistent pain, he consulted with an orthopedic surgeon.  His chief complaints were:  1) aching, decreased range of motion, numbness and tingling, pain, spasms, stiffness, weakness of the neck radiating to his right arm; 2) aching, decreased range of motion, pain, spasms, weakness of the low back radiating down the right thigh; and 3) aching, clicking, decreased range or motion, pain, stiffness, swelling of the right knee radiating up the right thigh.

The orthopedic surgeon diagnosed cervical and lumbar strain and radiculopathy, recommended modification of activities, heat treatment for the neck, back and knee, and an MRI of the right knee.

MRI Imaging FactsCar Accident Objective Testing

Our injured client had an MRI of his right knee performed and went for a follow up visit with the orthopedic surgeon to discuss the results.  The MRI revealed a tear of the posterior horn of the medial meniscus and medial retinacular sprain.  The orthopedic surgeon scheduled our injured client for right knee arthroscopic surgery.

Orthopedic Surgery Facts

The right knee arthroscopic surgery was performed at Saint Joseph’s Medical Center in Yonkers, New York.  The orthopedic surgeon performed a synovectomy and chondroplasty of the medial femoral condyle.  The surgeon’s post-operative diagnoses were: tear of the medial meniscus – partial – right, tear of the lateral meniscus – partial – right, synovitis-right, and chondromalacia medial femoral condyle-right.

Physical Recovery Facts

Our injured client followed up with the surgeon following the orthopedic procedure and began physical therapy.  Although his knee recovered from the car accident, the client continued to complain of pain to his neck and back with radiating symptoms.

Liability Summary

Here, our client, an injured passenger, was able to establish his prima facie entitlement to judgment as a matter of law on the issue of liability by submitting evidence showing that the defendant – driver violated Vehicle and Traffic Law § 1120 and 1128 by failing to exercise due care, failing to remain on the right side of the roadway, and failing to take adequate precautions to avoid colliding with the vehicle in which our client was a passenger.

Damages SummaryCar Accident with Soft Tissue Injury

Our client was transported to the hospital by ambulance from the scene of the accident.  Within six months he underwent surgery to his right knee and attended physical therapy to regain the use of his knee.  In addition, he continued to treat for severe pain in his neck and back.

Our client never fully recovered from the accident.  In addition, he treated continuously from the date of the accident.

Jury Appeal

To properly value a claim, it is essential to assess the amount of jury appeal our injured client would possess if the case goes to trial.  In this case, our injured client was a likeable person who would have great jury appeal, especially to a Bronx jury.  He was, after all, a mere passenger in the vehicle and therefore was completely free of fault in the happening of the car accident.  Our experienced personal injury attorneys estimated the full amount of our client’s damages, should the case proceed to trial, was in excess of $650,000.00 by the time of trial.  It was our contention that he suffered greatly, and would continue to suffer, as a result of the defendant’s careless driving.


Based on the above, it was our position that our injured client was entitled to substantial money damages for his pain and suffering, which continue to the present day.  The defendant’s commercial vehicle carried several million dollars of insurance covering this type of accident.  Consequently, the offending vehicle’s third-party claims adjuster was interested in a prompt resolution of this claim.

Our injured client desired a fast settlement of the claim and instructed the injury lawyers at Martin + Colin, P.C. to obtain the best result possible very quickly.  Our client preferred his money in hand as soon as possible.  Within one year of the accident, we were able to settle the case to the satisfaction of the client.

Call us now at (914) 771 7711 and let us apply our expertise to your case.Car Accident Law Firm Helpful Staff

Settlement for T-Bone Car Accident Victim on Taconic Parkway in Dutchess County – May 2016

Martin + Colin, P.C. announces a cash settlement for a driver injured in an automobile accident on the Taconic State Parkway in March 2013. The car accident victim, a Mahopac resident, was driving northbound on the Taconic State Parkway at the intersection of Pudding Street in Putnam Valley, New York.  The vehicle operated by the offending driver was traveling eastbound on Pudding Street, which had a stop sign at the intersection.  The driver of the offending vehicle failed to yield the right of way to our client’s vehicle.  The offending vehicle struck our client’s vehicle on the driver’s side with such force that our client’s vehicle was caused to spin and came to a stop off the road facing in the opposite direction.

As a result of the impact, the injured victim of the car crash sustained multiple injuries, including to his left knee, left leg, hip, back, right shoulder and elbow.  After the accident, the car accident victim went to Gleneida Medical Care complaining of left leg pain with weakness and radiation into the left low back, right shoulder and elbow pain, and second toe pain.  Our client informed the doctor that although he did have previous complaints regarding pain in his left leg prior to the accident, the pain before was not nearly as severe as the pain which he was experiencing after the accident.  The physician recommended a course of physical therapy and MRIs.

A treating doctor recommended that our client, who had sustained significant bodily injuries in the car accident, undergo an EMG of his upper extremities and continue to follow up with physical therapy treatment.  The physical therapy treatment helped relieve the injured driver’s pain, however he had to reduce the amount of hours he could work for his employer due to the pain in his neck and back. Despite all of the medical treatment and physical therapy, our client continued to feel pain in his neck and back as a result of the accident.

Bodily Injury Details…

Weeks after the accident, our injured client went for x-rays of his lumbar spine, left and right hips, and left and right knees.   

Soon after, our accident victim client went for an MRI of the Lumbar Spine, which revealed L2-L3 and L4-L5 disc bulges result in bilateral neural foramen stenosis with posterior facet arthropathy; L1-L2 6 mm (AP) broad-based right foraminal disc herniation superimposed upon a disc bulge, resulting in right greater than left neural foramen stenosis with posterior facet arthropathy; L3-L4 6 mm (AP) broad-based right foraminal disc herniation superimposed upon a disc bulge, resulting in mild central canal and right greater than left neural foramen stenosis with posterior facet arthropathy;  L5-S1 6 mm (AP) broad-based left foraminal disc herniation superimposed upon a disc bulge, resulting in left greater than right neural foramen stenosis with posterior facet anthropathy; and evidence of impingement upon the left-sided exiting L5 nerve roots.

About six months after the accident, our injured client went for an MRI of his left knee at Greater Northeast Radiology Associates, P.C., Open MRI of Yorktown.  The radiologist’s review of the images revealed advanced medical compartment arthrosis with complete loss of articular cartilage subchondral sclerosis and subchondral edema; extensive tear throughout the medial meniscus as described above with a displaced meniscal fragment extending to the intercondylar notch; and severe mucinous degeneration within the anterior cruciate ligament with an associated large multiseptated ganglion cyst.

Separately, we obtained copies of the left knee images and sent them to our own consulting radiologist for his professional opinion.  Our radiologist found a prominent joint effusion seen on T2 weighted sagittal images.  The medial meniscus was amputated leaving a small remnant posteriorly.  There was lateral displacement to medial collateral ligament.  The anterior cruciate ligament was torn from its origin.  There was bone marrow edema involving the medial tibial plateau.  Our radiologist also opined that these changes were related to traumatic injury and directly related to the t-bone car accident in March 2013, that the symptoms may worsen and eventually result in knee replacement surgery.

Unrelated to the accident, our client developed a cardiovascular disease and pulmonary disease following the accident, for which he was prescribed blood thinners.  He had to undergo four blood transfusions and was hospitalized for his condition at least six (6) times and had to have a stent placed in his artery.  As a result, our car crash victim could not undergo surgery related to the car accident as soon as the doctor had wanted him to due to the blood thinners.  He had to be completely off the blood thinners for a certain amount of time before he could be cleared by his doctor for surgery.  Thus, the surgery to repair the car accident injuries was delayed.  All the while, our client continued to experience excruciating pain in his knee while he waited.  He received trigger point injections and physical therapy to attempt to alleviate the pain, but they did not help.

Our injured client’s cardiologist granted him permission to discontinue taking the blood thinning medication for the requisite time period, and in December 2014, almost two years after the accident, our car accident victim underwent surgery to his left knee.  The arthroscopic surgery was performed by an outstanding surgeon at St. Joseph’s Medical Center.  The orthopedic surgeon’s post-operative diagnoses were: (a) tear medial meniscus- left; (b) tear lateral meniscus- left; (c) synovitis- left; (d) chondromalacia, medial femoral condyle- left; (e) chondromalacia, medial tibial plateau- left; and (f) chondromalacia, patella- left.  After knee surgery, our client followed up with physical therapy from December 2014 through February 2015.

The injuries that our client sustained in the March 2013 accident changed his life drastically.  Prior to the accident, our injured driver was a pharmacist who truly loved going to work each day.  He developed relationships with his customers and wanted to be there for them every day to answer their questions.  The nature of his employment required that he be on his feet and moving around the pharmacy for hours each day.  As a result of the injuries he sustained, our car crash victim was physically unable to perform the tasks of his employment anymore.  Being forced into early retirement was truly devastating for our client, who had planned on working for many more years.  Not only has this effected his livelihood, but also his emotional wellbeing.

The injuries he sustained also put a strain on his relationship with his grandchildren.  Prior to the accident, our client used to take his granddaughter to the ballet.  However, the pain in his knee prohibited him from standing, walking, taking stairs, and made outings with his grandchildren much too difficult.  As a result, his personal relationships suffered.

Based on all the factors cited above, it was our position that the our injured plainitff was entitled to damages for his pain and suffering, loss of income and loss of enjoyment of life which continued. Jury verdicts for similar damages can exceed $300,000.00.

The insurance company for the offending vehicle acknowledged responsibility for the accident and acknowledged that the accident forced our client into an early retirement.  However, the insurance company challenged the significance of our client’s bodily injuries, and claimed that any injuries that he had all pre-dated the accident. 

Nevertheless, the lawyers at our firm negotiated a settlement satisfactory to our client.

The experienced personal injury and auto accident lawyers can be contacted by phone at (914) 771 7711 or online at martincolin.com 

The experienced accident lawyers at Martin + Colin, P.C. applied their combined expertise handling similar car crash cases and, at our client’s request, successfully convinced the other driver’s insurance company that a settlement was better than an unfavorable jury verdict.


The injury attorneys at Martin + Colin, P.C., headquartered in White Plains, handle accident claims, negligence and personal injury cases. If you have been hurt in an accident due to the negligence of another person or firm, Martin + Colin, P.C. may be able to help.  Please call (914) 771 7711 or email using the ‘Contact Us’ form on this webpage

Call us now at (914) 771 7711 and let us apply our expertise to your case.


Fourth Amendment – Improper Stop, Unlawful Detention

Civil Rights Law – 42 U.S.C. 1983 – Fourth Amendment – Search and Seizure – May 2016

Part 3 of 3

Here is the decision and order of the federal court.  The facts were set forth in our first post in the series (read here…).  The legal arguments were set forth in our second post in the series (read here…)  This is our final post in this sample of federal civil rights litigation arising out of a false arrest by police officers.  Here is that portion of the decision and order of the federal court judge which declared that the police action constituted false arrest and unlawful detention of our client.




     -against-                                          DECISION AND ORDER




A court reviews motions for judgment on the pleadings pursuant to Rule12(c) of the Federal Rules of Civil Procedure under the same standard as motions to dismiss pursuant to Rule 12(b)(6). Bank of N.Y. v. First Millennium, Inc., 607 F.3d 905, 922 (2d Cir. 2010).  “To survive a Rule 12(c) motion, the complaint ‘must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.’”  Id. (quoting Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010)).  The Court accepts as true all well-pleaded factual allegations and draws all reasonable inferences in favor of the nonmoving party. See L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 429 (2d Cir. 2011).  A complaint does not “suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (alteration in original) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)).  Rule 8 of the Federal Rules of Civil Procedure “requires factual allegations that are sufficient to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Anderson News, L.L.C. v. Am. Media, Inc., 680 F.3d 162, 182 (2d Cir. 2012), cert. denied, 133 S. Ct. 846 (2013) (quoting Twombly, 550 U.S. at 555).

The standard for summary judgment is well established. Summary judgment is appropriate where the record before the court establishes that there is no “genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).  The Court must construe the evidence and draw all reasonable inferences in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); In re “Agent Orange” Prod. Liab. Litig., 517 F.3d 76, 87 (2d Cir. 2008).  A motion for summary judgment should be denied “if the evidence is such that a reasonable jury could return a verdict” in favor of the nonmoving party.  NetJets Aviation, Inc. v. LHC Commc’ns, LLC, 537 F.3d 168, 178-79 (2d Cir. 2008).  Summary judgment is warranted if a party “fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.”  Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).


I.                False Arrest, Detention & Confinement (Counts I, II & V)

All parties move for summary judgment on Plaintiff’s false arrest, detention and confinement claims.  Summary judgment is granted for Plaintiff with respect to his detention prior to Defendant Tisdale’s discovery of marijuana, and for Defendants with respect to Plaintiff’s detention thereafter.

A.             Plaintiff’s Detention Before the Discovery of Marijuana

Defendant Tisdale’s conduct in handcuffing and detaining Plaintiff before discovering marijuana violated the Fourth and Fourteenth Amendments and is not entitled to qualified immunity.

In the absence of probable cause to arrest, “Terry v. Ohio [, 392 U.S. 1 (1968),] and Michigan v. Summers [, 452 U.S. 692 (1981),] provide distinct standards for reasonable stops . . . .” United States v. Bailey, 743 F.3d 322, 334 (2d Cir. 2014) (“Bailey V”).  A Terry stop “require[s] reasonable suspicion of criminal conduct beyond proximity to a location of suspected crime,” and a Summers detention “require[s] spatial proximity to the premises to be searched without regard to reasonable suspicion.” Id.

1.     Terry Analysis

A Terry stop is justified if an officer “reasonably suspects that the person apprehended is committing or has committed a criminal offense.” Arizona v. Johnson, 555 U.S. 323, 326 (2009).  Reasonable suspicion requires more than a “hunch.”  Terry, 392 U.S. at 27.  It demands “specific and articulable facts which, taken together with rational inferences from those facts,” id. at 21, provide detaining officers with a “particularized and objective basis for suspecting wrongdoing,” United States v. Arvizu, 534 U.S. 266, 273 (2002) (internal quotation marks omitted).

Even viewing the record in the light most favorable to Defendants, there could not have been the reasonable suspicion necessary to stop Plaintiff pursuant to Terry in the first instance.  First, when Plaintiff was initially detained, the only fact connecting him to any possible criminal activity was that Evans, the person associated with the apartment being searched, had just entered the minivan in which Plaintiff was sitting.  However, Defendant Tisdale admitted that he knew, upon approaching the vehicle, that the individual seated in the back was the person connected to the apartment being searched, and therefore that Plaintiff was not that person.

Defendant Tisdale also admitted that he did not believe that Evans was involved in illegal activity at the time.  In light of these admissions, any nexus between Plaintiff and Evans was insufficient to permit Defendant Tisdale to order Plaintiff out of a parked vehicle at gunpoint and immediately handcuff him.  Although “[t]he [reasonable suspicion] standard is not high,” Bailey V, 743 F.3d at 332 (internal quotation marks omitted), it is not satisfied on these facts, and Plaintiff’s detention cannot be justified by Terry.

2.     Summers Analysis

Under Summers, a detention incident to search is constitutional only if “limit[ed] . . . to the area in which an occupant poses a real threat to the safe and efficient execution of a search warrant.” Bailey v. United States, 133 S. Ct. 1031, 1042 (2013) (“Bailey IV”).  In determining whether an occupant was lawfully detained within such “immediate vicinity” of the premises to be searched, courts may consider “the lawful limits of the premises, whether the occupant was within the line of sight of his dwelling, the ease of reentry from the occupant’s location, and other relevant factors.” Id.  Here, nothing in the record suggests – and Defendants do not claim – that Plaintiff was an occupant of the searched apartment at any relevant time, had any intention of entering it or otherwise had any connection to it.  Moreover, Plaintiff was inside a vehicle that was “[a]round the block” from the apartment according to Defendant Tisdale, not within the line of sight, and access to the apartment presumably would have required passage through at least one if not two doors.  These facts are far from satisfying the Summers standard, and could not have justified Plaintiff’s initial detention as effected incident to the search of the apartment.

3.               Qualified Immunity

Qualified immunity is an affirmative defense for which defendants have the burden of proof.  See Lore v. City of Syracuse, 670 F.3d 127, 149 (2d Cir. 2012).  An official sued under § 1983 is entitled to qualified immunity unless it is shown that the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct. See Ashcroft v. al–Kidd, 131 S. Ct. 2074, 2080 (2011).  A defendant cannot be said to have violated a clearly established right unless the right’s contours were sufficiently definite for any reasonable official in the defendant’s shoes to understand that he was violating it. Id. at 2083-84.  “In other words, existing precedent must have placed the statutory or constitutional question confronted by the official beyond debate.” Plumhoff v. Rickard, 134 S. Ct. 2012, 2023 (2014) (internal quotation marks omitted).  “[T]he salient question . . . is whether the state of the law at the time of an incident provided fair warning to the defendants that their alleged [conduct] was unconstitutional.” Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014) (alterations in original) (internal quotation marks omitted).  The “dispositive inquiry . . . is whether it would [have been] clear to a reasonable officer in the agents’ position that [their] conduct was unlawful in the situation [they] confronted.” Wood v. Moss, 134 S. Ct. 2056, 2059 (2014) (alterations in original) (internal quotation marks omitted).  “[I]f . . . officers of reasonable competence could disagree . . . , immunity should be recognized.” Hope v. Pelzer, 536 U.S. 730, 752 (2002) (internal quotation marks omitted).  Whether a clearly established right existed must be considered “in light of the specific context of the case, not as a broad general proposition.”  Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (internal quotation marks omitted).

Qualified immunity does not save Defendant Tisdale from liability for Plaintiff’s unlawful initial detention. First, as discussed above, the record contains no evidence tending to show that Defendant Tisdale had any individualized suspicion about Plaintiff, whether reasonable or unreasonable. Thus, there is no factual basis upon which to base a finding of qualified immunity for Defendant Tisdale under Terry.

Second, with respect to Summers, the relevant Supreme Court jurisprudence is grounded in the premise that those who may be subject to detentions incident to search are occupants of the searched premises.  452 U.S. at 701-05.  This occupancy nexus is relevant to each of the three law enforcement interests underpinning the Summers detention: (1) “minimizing the risk of harm to the officers” conducting the search, id. at 702; (2) “the orderly completion of the search,” which “may be facilitated if the occupants of the premises are present,” id. at 703; and (3) “preventing flight in the event that incriminating evidence is found,” id. at 702; see also Bailey IV, 133 S. Ct. at 1038-1041 (elaborating on the three law enforcement interests underpinning a Summers detention).  The Supreme Court has never departed from the occupancy requirement, including in its two cases revisiting Summers that had been decided at the time of Plaintiff’s 2011 detention. See Los Angeles Cnty. v. Rettele, 550 U.S. 609 (2007) (finding that the detention of individuals found on the premises at the time of the search was constitutional pursuant to Summers); Muehler v. Mena, 544 U.S. 93 (2005) (same).  Although some courts have found constitutional the detention of individuals who were leaving the premises to be searched, each case involved someone who had just occupied the premises when the officers arrived to execute a search.  See Summers, 452 U.S. at 693 & n.1 (upholding the detention of an individual as he exited the front door of the premises and descended the porch steps); see also United States v. Fullwood, 86 F.3d 27, 29-30 (2d Cir. 1996) (upholding the detention of an individual found outside the premises and about to enter his vehicle); United States v. Bailey, 468 F. Supp. 2d 373, 376 (E.D.N.Y. 2006) (“Bailey I”) (upholding the detention of two individuals after they exited the relevant premises and drove for one mile), aff’d, No. 06 Cr. 232, 2010 WL 277069 (E.D.N.Y. Jan. 19, 2010) (“Bailey II”), aff’d, 652 F.3d 197 (2d Cir. 2011), rev’d, 133 S. Ct. 1031, aff’d, 743 F.3d 322 (2d Cir. 2014). Even in Bailey, the case most heavily relied upon by Defendants on the qualified immunity issue,4 the district court stated that officers needed at minimum a “reasonable basis to believe that the person [to be detained] has just left or is about to enter the location to be searched.” Bailey II, 2010 WL 277069, at *14. Thus, in 2011, at the time of Plaintiff’s detention, the occupancy nexus was a clearly established prerequisite to the invocation of Summers.

Here, as discussed above, no evidence suggests that Defendant Tisdale believed or had grounds to believe that Plaintiff had any connection to the apartment that was being searched, let alone that Plaintiff had occupied or intended to occupy the apartment. In light of the clearly established requirement that detentions made pursuant to Summers be limited to the occupants of the premises to be searched, no reasonable officer could have believed that the detention of Plaintiff as he sat in a parked vehicle on another block was justified by Summers. Consequently, Defendant Tisdale is not entitled to qualified immunity under the Summers theory.

To the extent that Defendants could argue that Plaintiff’s initial detention was a reasonably necessary step to detaining Evans pursuant to Summers or Terry, that argument would fail. Even assuming that Defendant Tisdale is entitled to qualified immunity for the detention of Evans, that does not by itself justify the detention of Plaintiff. In United States v. Di Re, police arrested all three occupants of a car when a police informant in the backseat told the officers that the driver had sold him counterfeit coupons but said nothing about the passenger seated next to the driver. 332 U.S. 581, 583 (1948).  The Supreme Court ruled that the passenger’s arrest violated the Fourth Amendment because “[a]ny inference that everyone on the scene of a crime is a party to it must disappear if the Government informer singles out the guilty person.” Id. at 594; see also Ybarra v. Illinois, 444 U.S. 85, 91 (1979) (“[A] person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person.”). Cf. Maryland v. Pringle, 540 U.S. 366, 374 (2003) (finding that police had probable cause to arrest Pringle and two other occupants of a car because “[n]o such singling out occurred in this case”). Likewise here, the confidential informant had singled out Evans alone, and Defendant Tisdale had no information about Plaintiff except that he was with Evans in the car. Because it would have been clear to a reasonable officer in Defendant Tisdale’s position that “merely . . . sitting in the suspect’s vehicle when officers approached,” United States v. Delossantos, 536 F.3d 155, 160 (2d Cir. 2008), “do[es] not, without more, amount to probable cause,” id. at n.4, Defendant Tisdale is not entitled to qualified immunity for Plaintiff’s initial detention, even assuming he would be entitled to qualified immunity for Evans’s detention.

In light of the foregoing, summary judgment is granted in favor of Plaintiff for his unlawful detention before Defendant Tisdale’s discovery of marijuana.

B.        Plaintiff’s Detention After the Discovery of Marijuana

Plaintiff’s claims for false arrest and unlawful detention and confinement (Counts I, II, V) must be analyzed separately for the period after the officers discovered marijuana in Plaintiff’s vehicle. Because probable cause existed for the arrest, summary judgment is granted to Defendants on Counts I, II and V for the period after the discovery.

“‘In analyzing § 1983 claims for unconstitutional false arrest, [courts generally look] to the law of the state in which the arrest occurred.’” Jaegly v. Couch, 439 F.3d 149, 151-52 (2d Cir. 2006) (quoting Davis v. Rodriguez, 364 F.3d 424, 433 (2d Cir. 2004)). In order to state a claim for false arrest or imprisonment under New York 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; and (4) the confinement was not otherwise justified. See Posr v. Doherty, 944 F.2d 91, 97 (2d Cir. 1991).  Under New York law, “the existence of probable cause is an absolute defense to a false arrest claim.” Jaegly, 439 F.3d at 152.

“‘Probable cause to arrest exists when the arresting officer has knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing a crime.’”  Torraco v. Port Auth. of N.Y. & N.J., 615 F.3d 129, 139 (2d Cir. 2010) (quoting Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004)). “The inquiry is limited to ‘whether the facts known by the arresting officer at the time of the arrest objectively provided probable cause to arrest.’”  Gonzalez v. City of Schenectady, 728 F.3d 149, 155 (2d Cir. 2013) (quoting Jaegly, 439 F.3d at 153).

There is no dispute that Defendant Tisdale ordered Plaintiff and two other individuals out of Plaintiff’s vehicle, in which Defendant Tisdale then discovered marijuana.  That fact alone provides probable cause for Plaintiff’s arrest. See Abreu v. Romero, 466 F. App’x 24, 26 (2d Cir. 2012) (finding, in a New York case, that probable cause to arrest existed after officers found two ounces of marijuana in the plaintiff’s bedroom).

Plaintiff argues that the charge for which he was arrested – unlawful possession of marijuana in violation of New York Penal Law 221.05 – does not authorize law enforcement officers to effect custodial arrests.  With respect to the § 1983 false arrest claim, the Supreme Court in Virginia v. Moore, 553 U.S. 164 (2008), rejected the same argument.  In that case, the appellant argued that he was unlawfully arrested for the misdemeanor of driving on a suspended license because state law did not authorize the arrest. Id. at 167.  The Supreme Court found that the arrest was made with probable cause and did not violate the Fourth Amendment, even if the arrest was impermissible under state law. Id. at 178.  The Court held that “state restrictions do not alter the Fourth Amendment’s protections,” and that to hold otherwise would cause the Fourth Amendment to “vary from place to place and from time to time . . . .” Id. at 176 (internal quotation marks omitted).  Moreover, contrary to Plaintiff’s position, New York law authorizes arrest for the unlawful possession of marijuana in violation of New York Penal Law 221.05.  Under New York Criminal Procedure Law § 140.10, “a police officer may arrest a person for: (a) [a]ny offense when he or she has reasonable cause to believe that such person has committed such offense in his or her presence.”  An “offense” under § 140.10 is defined by New York Penal Law § 10.00(1) as “conduct for which a sentence to a term of imprisonment or to a fine is provided by any law of this state or by any law, local law or ordinance of a political subdivision of this state . . . .” New York Penal Law § 221.05, under which Plaintiff was charged, expressly provides for punishment by a fine.  Plaintiff’s invocation of New York Criminal Procedure Law § 150.75 – requiring that “an appearance ticket shall promptly be issued and served upon” arrestees in connection with § 221.05 – does not change the fact that the unlawful possession of marijuana in violation of § 221.05 is an arrestable offense.  Consequently, Plaintiff’s argument fails with respect to his false arrest claims under both federal and state laws.

Plaintiff asks that the Court decline to follow Townes v. City of New York, in which the Second Circuit held that “[v]ictims of unreasonable searches or seizures may recover damages directly related to the invasion of their privacy . . . ; but such victims cannot be compensated for injuries that result from the discovery of incriminating evidence and consequent criminal prosecution” – i.e., that the “fruit of the poisonous tree” doctrine does not apply in § 1983 actions. 176 F.3d 138, 148 (2d Cir. 1999).  Townes remains binding law in this circuit.  Thus, even assuming that the search of the vehicle that led to the discovery of marijuana was illegal, Plaintiff cannot recover for his arrest on that ground because the arrest was made with probable cause.

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