MARTIN v. RODRIGUEZ

No. 3:99cv487 (JBA)

154 F. Supp.2d 306 (2001) | Cited 0 times | D. Connecticut | July 19, 2001

MEMORANDUM OF DECISION [Doc. # 26]

Plaintiff Peter F. Martin was arrested as a felon in possession of afirearm, in violation of Conn. Gen. Stat. § 53a-217. Plaintiff isnot a convicted felon, however. Because the criminal records of one PeterB. Martin were mistakenly merged with those of plaintiff (Peter F.Martin), the background check conducted following his purchase of ahunting rifle showed that he had previously been convicted of burglary inthe third degree and larceny in the second degree. The police obtainedand executed search and arrest warrants based on this mistakeninformation.

Plaintiff brought suit under 28 U.S.C. § 1983 against Connecticutstate troopers Edgar Rodriguez, Roland Levesque, Timothy Osika and MarkPiccurillo,1 claiming that defendants violated his civil rights byconducting an unreasonable search and seizure of him and his property,arresting him under an invalid warrant for a crime he did not commit, andholding him under an unreasonable and excessive bond, in violation of theFourth, Eighth and Fourteenth Amendments of the Constitution.Plaintiff also asserts a state law claim of intentional infliction ofemotional distress.

Defendants have moved for summary judgment on all claims [Doc. # 26].For the reasons discussed below, the Court finds that there are nomaterial facts in dispute and that defendants are entitled to judgment asa matter of law on plaintiff's constitutional claims. The Court declinesto exercise supplemental jurisdiction over plaintiff's state law claims.Accordingly, defendants' motion is GRANTED.

Factual Background

On October 6, 1998, plaintiff purchased a .22 caliber rifle fromTownline Boating and Sporting Accessories in Watertown, Connecticut.Although Connecticut usually requires a two-week waiting period for gunpurchases, to allow time to conduct a background check, plaintiff was ableto bypass the waiting period and the immediate background check becausehe had a Connecticut hunting license.2

The store owner then submitted the required documentation to federaland state authorities. The Connecticut state police, Special License andFirearm Unit conducted the required criminal history check, during whichit was discovered that a "Peter F. Martin" had two prior felonyconvictions for burglary in 1975 and larceny in 1978. Accordingly, theapplication for sale was returned to the store dealer stamped "Saledenied." The dealer then contacted the state police on October 27, 1998to report that the sale had been denied.

On November 10, 1998, the police confirmed the SPBI criminal historycheck, which showed that a Peter Martin, with a date of birth of March19, 1957, weight of 135 pounds and height of 5'5", had two convictionsfor burglary and larceny. The police also determined that plaintiff PeterF. Martin had a March 19, 1957 date of birth and a valid Connecticutdrivers license and registration for a 1988 Jeep station wagon, andconfirmed that his home address was 450 Nonnewaug Road, Bethlehem,Connecticut. Detectives Rodriguez and Levesque then sought an arrestwarrant and search warrants for plaintiff's car and house based on thisinformation, which were issued on December 1, 1998.

On December 2, 1998, at 7:00 a.m., Connecticut state troopersRodriguez, Levesque, Osika and Piccurillo arrived at plaintiff's house.Two of plaintiff's children, aged 11 and 13, were waiting for the schoolbus approximately fifty feet from the front door, and the police askedthe children whether plaintiff was home, and then went to the frontdoor. The police displayed an arrest warrant and search warrants forplaintiff's car and house when they knocked on the door. While plaintiff'schildren were waiting for the bus, the troopers knocked on the door, andbrought empty boxes into the house. The school bus came approximately tenminutes after they arrived, and left before the officers came out of thehouse carrying plaintiff's firearms. Plaintiff's children watched theofficers enter the house and saw plaintiff handcuffed and seated. Otherchildren on the school bus also observed the officers outside plaintiff'shouse.

Plaintiff was told that he was under arrest as a felon in possession ofa firearm, and was shown the search warrants. He was handcuffed andseated on a chair inside the house. Plaintiff was asked his name and dateof birth, and the officers compared it to the information on the copy ofhis drivers license they had printed out prior to the arrest, whichmatched the date of birth on the criminal history information.Plaintiff's physical description in the criminal history information alsomatchedhis physical appearance when he was arrested. After the officersasked plaintiff about the two felony convictions, he told the officers"at least twice" that there was a mix-up, that this had occurred when hewas in court on a previous DWI charge, that there was another PeterMartin to whom the felony convictions belonged who was six feet tall, andthat they could call his attorney who would explain the mix-up. Thepolice then re-checked plaintiff's name and date of birth on the SPBIcriminal history information.

During the search of plaintiff's home and car, the police discoveredseventeen guns and eighteen boxes of ammunition. The guns werephotographed and then removed. Many of the guns were in padded cases;those guns were removed from plaintiff's house in their cases. Six guns,however, were not in cases, and the police carried those from the housewithout any protection. Martin told the officers who were carrying theguns that he did not treat his firearms in such a careless fashion. Thesearch of Martin's home lasted approximately two hours. In hisdeposition, Martin stated that the police left his office "messy," butdid not mention any damage to his house.

After the search was completed, defendants locked the door toplaintiff's house, and defendant Osika drove plaintiff to the policestation, while plaintiff continued to protest his innocence. Plaintiffwas questioned, finger-printed and photographed when he arrived at thestation. Defendants told plaintiff they would check to see whether hisprints matched the prints on the criminal arrest records. Osika thensubmitted the fingerprints they had just taken to SPBI, which faxedconfirmation that plaintiff's prints matched the fingerprints on file forplaintiff, and gave an identical criminal history printout. Osika alsoresearched plaintiff's DWI arrest; the file for that arrest contained anidentical arrest record, including the two felony convictions. Osika thencontacted SPBI again, and found that there were no fingerprints on filewith the felony convictions, and that the arrest data for those crimeshad been submitted by two separate departments, and were both more thantwenty years old. He was thus unable to further confirm or denyplaintiff's claims of innocence while plaintiff was in custody.

While plaintiff was being questioned, defendant Rodriguez told him thathe hoped he owned his house because he was going to need it for a bond,and told plaintiff he was lying about the mix-up. Plaintiff was"extremely upset" by what Rodriguez told him. Plaintiff was then placedin a cell until he was released on a promise to appear, approximately twohours after he arrived at the station. When he was released, plaintiffclaims he was told by defendant Osika that the police did not run a taxiservice and that he would have to get his own ride home; however, it isundisputed that he was driven home by defendant Piccurillo. Whenplaintiff arrived home, he did not have a key to his house, and broke thedoor to get in.

After plaintiff was released, Osika continued his investigation intoplaintiff's allegations of misidentification. He contacted the WolcottPolice Department regarding the burglary conviction, and was informedthat all records, including fingerprints, had been purged due to the ageof the offense. He then contacted a lieutenant in the InvestigationsUnit, who found an index card recording a burglary arrest on January 5,1975, of a Peter B. Martin of New Fairfield, Connecticut, whose date ofbirth was July 17, 1957. Osika concluded that this arrest had beenincorrectly attributed to plaintiff. He also learned that Peter B. Martinhad served time in state prison for this offense, and had numeroustattoos anda partially amputated finger, but had no record in the StateCriminal Record Check ("SCRC") database.

Osika then attempted to determine whether the larceny arrest wasproperly attributed to plaintiff. He contacted the Bridgeport SuperiorCourt, which had no information. The state probation department thenresearched records indicating that Peter B. Martin had served a period ofsupervised release for a larceny conviction in 1978, although no SCRCinformation existed for any "Peter B. Martin." Osika did find a recordfor Peter B. Martin under a different SPBI number and fingerprintclassification. Osika then discussed his findings with the SPBIFingerprint Unit and Records Unit, which concluded that the arrest datawas attributed to plaintiff's record in error. The incorrect felony datawas removed from plaintiff's file on December 8, 1998.

Three days later, the charges against plaintiff were dismissed, andOsika obtained authorization to return the seized property. Plaintiff'sguns were returned to him on December 14, 1998. Those guns that had beenin cases were returned in the original condition; however, the six gunsthat were taken without cases had nicks and scratches on them when theywere returned. Plaintiff had those guns appraised by C.W. Mellette,Custom Gunsmith. According to the appraisal, it will cost $2,472 torepair or restore the guns.

Standard

A court shall grant a motion for summary judgment "if the pleadings,depositions, answers to interrogatories, and admissions on file, togetherwith affidavits . . . show that there is no genuine issue as to anymaterial fact and that the moving party is entitled to a judgment as amatter of law." Silver v. City Univ., 947 F.2d 1021, 1022 (2d Cir.1991). The moving party bears the initial burden of establishing that nogenuine issue of material fact exists and that the undisputed facts showthat she is entitled to judgment as a matter of law. Rodriguez v. City ofNew York, 72 F.3d 1051, 1060 (2d Cir. 1995). In determining whether agenuine issue of material fact exists, a court must resolve allambiguities and draw all reasonable inferences against the moving party.See Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 587(1986); Brady v. Town of Colchester, 863 F.2d 205, 210 (2d Cir. 1988).

The non-moving party must "go beyond the pleadings and by her ownaffidavits, or by the `depositions, answers to interrogatories, andadmissions on file,' designate `specific facts showing that there is agenuine issue for trial.'" Celotex Corp. v. Catrett, 477 U.S. 317, 324(1986). A party seeking to defeat a summary judgment motion cannot "relyon mere speculation or conjecture as to the true nature of facts toovercome a motion." Lipton v. Nature Co., 71 F.3d 464, 469 (2d Cir. 1995)(quoting Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986))."Only disputes over facts that might affect the outcome of the suit underthe governing law will properly preclude the entry of summary judgment.Factual disputes that are irrelevant or unnecessary will not be counted."Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Discussion

Defendants begin by arguing that they are entitled to summary judgmenton qualified immunity grounds, claiming that objectively reasonableofficers would have believed they had probable cause to arrest plaintiffand search his premises under these circumstances. However, the SupremeCourt has instructed that district courts facing allegations ofconstitutional violations should first determine whetheror not a violation occurred, and only if a violation is found go on toassess whether the defendants are entitled to qualified immunity for theiracts. See Wilson v. Layne, 526 U.S. 603, ___, 119 S.Ct. 1692, 1696-97(1999); County of Sacramento v. Lewis, 523 U.S. 833, 842 n. 5 (1998);Siegert v. Gilley, 500 U.S. 226, 232 (1991); Lauro v. Charles,219 F.3d 202, 206 (2d Cir. 2000); X-Men Sec. Inc. v. Pataki, 196 F.3d 56,66 (2d Cir. 1999).

Although Second Circuit caselaw suggests that Wilson should not be readas a mandate to "the lower courts to abandon a widespread practice and agenerally recognized precept of avoiding unnecessary constitutionaladjudication," the Second Circuit has also noted that "where defendantsare entitled to qualified immunity, it is more consistent withtraditional principles of restraint to reach the merits when theconstitutional right in question does not exist than when it does; in theformer circumstance, the finding of no right is the holding, and thecourt is not declaring new constitutional rights in dictum that cannot beappealed." Horne v. Coughlin, 191 F.3d 244, 248, 249 (2d Cir.), cert.denied, 120 S.Ct. 594 (1999); see also Mollica v. Volker, 229 F.3d 366,(2d. Cir. 2000).

Because the Court concludes that the undisputed facts show thatdefendants did not violate plaintiff's constitutional rights when theyarrested him and searched his property, no new constitutional right isdeclared, and the Court does not reach the issue of qualified immunity.3

A. Arrest without probable cause

"There can be no federal civil rights claim for false arrest where thearresting officer had probable cause." Singer v. Fulton County Sheriff,63 F.3d 110, 118 (2d Cir. 1995). Probable cause to arrest exists when"the authorities have knowledge or reasonably trustworthy informationsufficient to warrant a person of reasonable caution in the belief thatan offense has been committed by the person to be arrested." Golino v.City of New Haven, 950 F.2d 864, 870 (2d Cir. 1991). The amount ofevidence required to establish probable cause to arrest is less than thatnecessary to support a conviction and, thus, the fact that the chargesagainst plaintiff were dismissed does not necessarily mean that probablecause was lacking for his arrest. See Krause v. Bennett, 887 F.2d 362,371 (2d Cir. 1989). In determining whether probable cause to arrestexisted, the Court must evaluate the totality of the circumstances basedon those facts available to the officers at the time of the arrest. SeeIllinois v. Gates, 462 U.S. 213, 238 (1983); Lowth v. Town ofCheektowaga, 82 F.3d 563, 569 (2d Cir. 1996). "[T]he existence ofprobable cause, vel non, is assessed based on probabilities, notcertitude, as viewed by a reasonably prudent law enforcement officialconsidering all the objective facts known prior to effectuating thearrest." Carson v. Lewis, 35 F. Supp.2d 250, 258 (E.D.N.Y. 1999).

Plaintiff does not claim that the information submitted by thedetectives was insufficient to provide probable cause for the arrest andsearch warrants or that the officers knew the information regarding thetwo felony convictions was false. Instead, plaintiff's argument goes, theofficers should have been suspicious because he had a hunting license andbecause they were aware of his good reputation in the community.According to plaintiff, the Fourth Amendment required the officers toinvestigate the "obvious discrepancy" between his Connecticut huntinglicense and the criminal history printout showing that plaintiff had twofelony convictions before they sought the warrants.

Defendants, in turn, argue that an arrest pursuant to a valid warrantsupported by probable cause does not violate the Fourth Amendment eventhough it later turns out that the information was erroneous. Defendantsclaim that because the SPBI records are a reliable source, and they wereunaware that the information was incorrect when they sought the warrant,the arrest did not violate the Fourth Amendment. Defendants furtherassert that they were under no duty to investigate plaintiff's claims ofinnocence when arrested, and that they did all they could at time toconfirm that they arrested the right person.

The critical issue here is whether detectives' Rodriguez and Levesque'sawareness of the fact that plaintiff had a hunting license made theiractions in seeking a warrant unreasonable. Hunting licenses are issuedpursuant to Conn. Gen. Stat. §§ 26-30 and 26-31, following completionof a course of instruction in safety practices, and can be renewed bypresenting a certificate showing that the applicant has held a residentlicense to hunt with firearms in any state or county within the past fiveyears. See Conn. Gen. Stat. § 26-31(a), (b). However, these statutesdo not provide that licenses to hunt with firearms may not be issued toconvicted felons.

After the required background check in the gun purchase was conductedhere, the state police records showed that plaintiff had two felonyconvictions. The officers sought to confirm plaintiff's name, address,date of birth, and determined that plaintiff's date of birth matched thaton the criminal history records. There is no allegation here that theSPBI criminal history records generally are not a reliable source, andcontrary to plaintiff's argument, there was no reason for the detectivesto believe that their information was inaccurate. Instead, there had beena clerical error that took detective Osika several days to uncover oncehe was alerted to the possibility of misidentification. Under thesecircumstances, the Court concludes that defendants had probable cause toarrest plaintiff and therefore did not violate plaintiff's FourthAmendment rights. See Baker v. McCollan, 443 U.S. 137, 145-46 (1979) (norecovery under § 1983 where plaintiff was arrested with probablecause and pursuant to valid arrest warrant that later turned out to bemistaken); Ruiz v. Herrera, 745 F. Supp. 940, 946 (S.D.N Y 1990) ("[I]f apolice officer deliberately arrests someone without probable cause, he isliable under 42 U.S.C. § 1983. If, on the other hand, a policeofficer arrests someone with probable cause, but by mistake, there is noconstitutional violation.").4

Finally, to the extent that plaintiff's brief can be read as arguingthat his protestations of innocence and request that the arrestingofficers contact his attorney required the arresting officers toinvestigate those assertions before arresting him, that argument issimilarly unsupported by caselaw. See McCollan, 443 U.S. at 145-46 ("wedo not think a sheriff executing an arrest warrant is required by theConstitution to investigate independently every claim of innocence,whether the claim is based on mistaken identity or a defense such as lackof requisite intent"); Ricciuti v. New York City Transit Auth.,124 F.3d 123, 128 (2d Cir. 1997) ("Once a police officer has a reasonablebasis for believing there is probable cause, he is not required toexplore and eliminate every theoretically plausible claim of innocencebefore making an arrest.").

B. Unreasonable search and seizure

Defendants next claim that they are entitled to summary judgmentbecause the search and seizure did not violate the Fourth Amendment.Plaintiff does not argue that the police lacked probable cause to searchhis premises. Instead, he asserts that the manner in which the search wascarried out was unreasonable.

"The text of the Fourth Amendment makes clear that all searches must be`reasonable.'" United States v. Tavarez, 995 F. Supp. 443, 449 (S.D.N.Y.1998). This reasonableness requirement applies not only to thecircumstances under which a warrant may be issued, but also to the mannerand scope of a search. See Ayeni v. Mottola, 35 F.3d 680, 684 (2d Cir.1994); Rivera v. United States, 928 F.2d 592, 606-07 (2d Cir. 1991). "Thegeneral touchstone of reasonableness which governs Fourth Amendmentanalysis governs the method of execution of the warrant. Excessive orunnecessary destruction of property in the course of a search warrant mayviolate the Fourth Amendment, even though the entry itself is lawful andthe fruits of the search are not subject to suppression." United Statesv. Ramirez, 523 U.S. 65, 71 (1998). Thus, a search that is undulydestructive or invasive in nature may violate an individual's FourthAmendment rights.

It is unclear from plaintiff's brief precisely which elements of thesearch he believes are unreasonable. However, he appears to argue thatbecause the arrest and search were conducted while his children waitedfor the school bus, he was held for two hours in handcuffs, and "in thecourse of the search, they trashed the house itself, throwing andscattering property needlessly and destructively," Pl. Mem. in Opp. at3, the manner in which the search and arrest warrants were carried outviolated the Fourth Amendment. For the reasons that follow, the Courtconcludes that plaintiff's version of the facts falls far short ofestablishing a constitutional violation.

As to the timing of the search, while plaintiff argues that the policeshould have come at different time so that the children would not witnesstheir father being arrested, plaintiff also admitted in his depositionthat he left his house around 7:00 in the morning to go to work.Plaintiff cites no caselaw for the proposition that police cannot executea warrant in the presence of children. There is no allegation that thepolice harmed or threatenedthe children in any way. Under thesecircumstances, there was nothing unreasonable in the decision to executethe warrant at a time when the police reasonably believed plaintiff wouldbe at home.

Further, plaintiff's contention that he was handcuffed for two hourswhile the search was conducted does not establish a Fourth Amendmentconstitutional violation. A "warrant to search for contraband founded onprobable cause implicitly carries with it the limited authority to detainthe occupants of the premises while a proper search is conducted."Michigan v. Summers, 452 U.S. 692, 705 (1981). Therefore, "[a]bsentspecial circumstances, the police . . . have the authority to detainoccupants of premises while an authorized search is in progress,regardless of individualized suspicion." Rivera, 928 F.2d at 606. Here,plaintiff was under arrest while the officers searched his house, and hehas offered no evidence of any special circumstances that might make thedetention during the search unlawful. See Crosby v. Hare, 932 F. Supp. 490,493 (W.D.N Y 1996). "For their own safety, it was more than reasonablefor the police to detain [plaintiff] . . . for a [] period of time inhandcuffs" while the search of the premises was conducted. Id. (citingUnited States v. Fountain, 2 F.3d 656, 666 (6th Cir. 1993); Howard v.Schoberle, 907 F. Supp. 671, 677 (S.D.N Y 1995)). Plaintiff's factssimply do not demonstrate any constitutional violation.

Further, despite the characterization of plaintiff's house as "trashed"in plaintiff's brief, in his deposition he clearly stated that the onlypremises damage was that the officers left his office "messy." Thephotographs submitted in support of plaintiff's opposition to summaryjudgment similarly do not show any destruction of property (apart fromplaintiff's door, which he himself broke down upon returning home). Theofficers were searching for firearms, and plaintiff has provided noevidence that the search was unnecessarily thorough to fulfil itspurpose. Under these circumstances, the Court finds that plaintiff's claimof the nature of the search of the premises cannot constitute a FourthAmendment violation. See Lewis v. City of Mount Vernon, 984 F. Supp. 748,756 (S.D.N.Y. 1997) (allegation that officers left plaintiffs' apartment"ransacked" did not state constitutional violation where plaintiffs"presented no evidence that the officers wantonly damaged or destroyedproperty or conducted the search in a manner inconsistent with itsprofessed purpose of finding illicit drugs"; instead, "the only inferencethat can be drawn is that the officers conducted a thorough search, asthey were permitted to do in executing a warrant").

Plaintiff also argues that defendants negligently damaged several ofhis firearms at some point after the guns were seized and before theywere returned to him, and that it will cost approximately $2,500 torepair the damaged guns. Defendants respond that negligent damage toproperty after it has already been seized does not violate the FourthAmendment, and that plaintiff's remedy for the damage is to be found inhis action against the State currently pending before the ClaimsCommissioner. In light of the existence of this post-deprivationprocedure, plaintiff wisely does not press his Fourteenth Amendment dueprocess claim that defendants negligently damaged his property. See Parratv. Taylor, 451 U.S. 527, 539 (1981) (negligent destruction of propertydoes not violate Fourteenth Amendment assuming an adequatepost-deprivation remedy exists); Hudson v. Palmer, 468 U.S. 517, 533(1984)(intentional destruction of property does not violate theFourteenth Amendment if there is a meaningful post-deprivation remedy).Instead, plaintiff argues that the damage was part of the unreasonableseizure of his property.

The Court has previously found that the police acted reasonably withinthe scope of the Fourth Amendment when they searched the house, and theseizure of the seventeen firearms itself was reasonable, as the guns wereclearly evidence supporting the conclusion that plaintiff had committed acrime. See New Jersey v. T.L.O., 469 U.S. 325, 345-46 (1985) (wherepolice could reasonably believe that an item seized may be relevantevidence in a particular criminal prosecution, holding the item does notviolate the Fourth Amendment); Warden v. Hayden, 387 U.S. 294, 306-08(1967) (same). Plaintiff does not claim that defendants unnecessarilydelayed return of his property following the determination that thearrest and seizure were based on erroneous information.

Neither plaintiff nor defendants have analyzed whether conduct by thepolice after property has already been taken into possession is properlyanalyzed under the Fourth Amendment. The Sixth Circuit has provided auseful analysis in Fox v. Van Oosterum, 176 F.3d 342, 350-51 (6th Cir.1999), which held that police refusal to return seized property for fourmonths that occurred following a reasonable seizure of property does notbring "about an additional seizure nor change[] the character of the[original] seizure from a reasonable one to an unreasonable one becausethe seizure was already complete . . . ." The court reasoned that whilethe Fourth Amendment protects a person's property interest in hispossessions, that interest is in the retention of possession, rather thanin gaining return of the property once it has been lawfully seized: "Oncethat act of taking the property is complete, the seizure has ended andthe fourth Amendment no longer applies." Id. at 351. The court alsoobserved that such claims are more commonly encompassed within theprocedural due process analysis of the Fourteenth Amendment. Id. at 352;see also Wagner v. Higgins, 754 F.2d 186, 194 (6th Cir. 1985) (Contie,J., concurring) ("[t]he appropriate source of constitutional protectionagainst" alleged interference with a person's possessions, contrastedwith temporary seizures, "lies not in the fourth amendment but in the dueprocess clause of the fourteenth amendment"). This Court finds thisreasoning persuasive. That the police allegedly scratched the guns whilethey were in police custody may, as previously noted, give rise to anegligence claim. It does not, however, implicate the Fourth Amendment'sprohibition on unreasonable seizures.

Finally, the alleged "verbal taunting and abuse" by Rodriguez whileplaintiff was at the station does not rise to the level of a violation ofplaintiff's constitutional rights as matter of law. Although verbaltaunting by police might conceivably be so abusive and offensive as toviolate the Constitution under some circumstances, the conduct actuallydescribed by plaintiff is not. According to plaintiff, Rodriguez told himhe hoped plaintiff owned his house because he would need it to post bondand that he was lying about the mistaken identity. In the Court's view,this conduct falls far short of proving a Fourth Amendment constitutionalviolation.

C. Pendent state law claim

Having determined that defendants are entitled to summary judgment onplaintiff's federal claims, the Court declines toexercise supplementaljurisdiction over plaintiff's state law claim of intentional inflictionof emotional distress.5 See United Mine Workers of America v. Gibbs,383 U.S. 715, 726 (1966) ("[I]f the federal claims are dismissed beforetrial, even though not insubstantial in the jurisdictional sense, thestate claims should be dismissed as well."); Lennon v. Miller, 66 F.3d 416,426 (2d Cir. 1995) (same).

Conclusion

Although plaintiff's distress at being the subject of an erroneousarrest is certainly understandable, the facts set forth by plaintiff orotherwise undisputed show that the state police defendants had probablecause to seek the arrest and search warrants, and executed those warrantsreasonably. Accordingly, for the reasons discussed above, defendants'motion for summary judgment [Doc. # 26] is GRANTED.

The Clerk is directed to close this case.

IT IS SO ORDERED.

1. Plaintiff's complaint also names trooper Rodgers as a defendant, whowas dismissed on July 9, 1999.

2. See Conn. Gen. Stat. § 29-37(a).

3. Although plaintiff's complaint also alleges that defendantsviolated the Eighth Amendment by imposing an excessive bail, theundisputed facts of this case show that defendant was not kept incustody, but was instead released on a written promise to appealapproximately two hours after he was taken to the police station forprocessing. Indeed, during his deposition, plaintiff conceded that he wasnot "held prisoner under an unreasonable and excessive bail bond" becausehe was released. Compare Compl. ¶ 1, with Dep. at 78-79. Therefore,while defendants' motion does not address the Eighth Amendment claim,this oversight is not a bar to summary judgment in this case, as theCourt considers that plaintiff has abandoned this claim.

4. Plaintiff's contention that the probable cause determination shouldhave taken into account the fact that defendant Piccurillo knew whoplaintiff was because plaintiff had done contracting work in the buildingwhere Piccurillo worked is legally unsupported, and provides no legallyrelevant inference of lack of probable cause. The mere fact thatPiccurillo knew plaintiff by sight does not make it any less likely thatplaintiff had been convicted of felonies in 1975 and 1978.

5. Defendants inexplicably devote two pages in their brief to arguingthat they are entitled to summary judgment on plaintiff's state law falsearrest claim. Plaintiff's complaint contains no such claim.

MEMORANDUM OF DECISION [Doc. # 26]

Plaintiff Peter F. Martin was arrested as a felon in possession of afirearm, in violation of Conn. Gen. Stat. § 53a-217. Plaintiff isnot a convicted felon, however. Because the criminal records of one PeterB. Martin were mistakenly merged with those of plaintiff (Peter F.Martin), the background check conducted following his purchase of ahunting rifle showed that he had previously been convicted of burglary inthe third degree and larceny in the second degree. The police obtainedand executed search and arrest warrants based on this mistakeninformation.

Plaintiff brought suit under 28 U.S.C. § 1983 against Connecticutstate troopers Edgar Rodriguez, Roland Levesque, Timothy Osika and MarkPiccurillo,1 claiming that defendants violated his civil rights byconducting an unreasonable search and seizure of him and his property,arresting him under an invalid warrant for a crime he did not commit, andholding him under an unreasonable and excessive bond, in violation of theFourth, Eighth and Fourteenth Amendments of the Constitution.Plaintiff also asserts a state law claim of intentional infliction ofemotional distress.

Defendants have moved for summary judgment on all claims [Doc. # 26].For the reasons discussed below, the Court finds that there are nomaterial facts in dispute and that defendants are entitled to judgment asa matter of law on plaintiff's constitutional claims. The Court declinesto exercise supplemental jurisdiction over plaintiff's state law claims.Accordingly, defendants' motion is GRANTED.

Factual Background

On October 6, 1998, plaintiff purchased a .22 caliber rifle fromTownline Boating and Sporting Accessories in Watertown, Connecticut.Although Connecticut usually requires a two-week waiting period for gunpurchases, to allow time to conduct a background check, plaintiff was ableto bypass the waiting period and the immediate background check becausehe had a Connecticut hunting license.2

The store owner then submitted the required documentation to federaland state authorities. The Connecticut state police, Special License andFirearm Unit conducted the required criminal history check, during whichit was discovered that a "Peter F. Martin" had two prior felonyconvictions for burglary in 1975 and larceny in 1978. Accordingly, theapplication for sale was returned to the store dealer stamped "Saledenied." The dealer then contacted the state police on October 27, 1998to report that the sale had been denied.

On November 10, 1998, the police confirmed the SPBI criminal historycheck, which showed that a Peter Martin, with a date of birth of March19, 1957, weight of 135 pounds and height of 5'5", had two convictionsfor burglary and larceny. The police also determined that plaintiff PeterF. Martin had a March 19, 1957 date of birth and a valid Connecticutdrivers license and registration for a 1988 Jeep station wagon, andconfirmed that his home address was 450 Nonnewaug Road, Bethlehem,Connecticut. Detectives Rodriguez and Levesque then sought an arrestwarrant and search warrants for plaintiff's car and house based on thisinformation, which were issued on December 1, 1998.

On December 2, 1998, at 7:00 a.m., Connecticut state troopersRodriguez, Levesque, Osika and Piccurillo arrived at plaintiff's house.Two of plaintiff's children, aged 11 and 13, were waiting for the schoolbus approximately fifty feet from the front door, and the police askedthe children whether plaintiff was home, and then went to the frontdoor. The police displayed an arrest warrant and search warrants forplaintiff's car and house when they knocked on the door. While plaintiff'schildren were waiting for the bus, the troopers knocked on the door, andbrought empty boxes into the house. The school bus came approximately tenminutes after they arrived, and left before the officers came out of thehouse carrying plaintiff's firearms. Plaintiff's children watched theofficers enter the house and saw plaintiff handcuffed and seated. Otherchildren on the school bus also observed the officers outside plaintiff'shouse.

Plaintiff was told that he was under arrest as a felon in possession ofa firearm, and was shown the search warrants. He was handcuffed andseated on a chair inside the house. Plaintiff was asked his name and dateof birth, and the officers compared it to the information on the copy ofhis drivers license they had printed out prior to the arrest, whichmatched the date of birth on the criminal history information.Plaintiff's physical description in the criminal history information alsomatchedhis physical appearance when he was arrested. After the officersasked plaintiff about the two felony convictions, he told the officers"at least twice" that there was a mix-up, that this had occurred when hewas in court on a previous DWI charge, that there was another PeterMartin to whom the felony convictions belonged who was six feet tall, andthat they could call his attorney who would explain the mix-up. Thepolice then re-checked plaintiff's name and date of birth on the SPBIcriminal history information.

During the search of plaintiff's home and car, the police discoveredseventeen guns and eighteen boxes of ammunition. The guns werephotographed and then removed. Many of the guns were in padded cases;those guns were removed from plaintiff's house in their cases. Six guns,however, were not in cases, and the police carried those from the housewithout any protection. Martin told the officers who were carrying theguns that he did not treat his firearms in such a careless fashion. Thesearch of Martin's home lasted approximately two hours. In hisdeposition, Martin stated that the police left his office "messy," butdid not mention any damage to his house.

After the search was completed, defendants locked the door toplaintiff's house, and defendant Osika drove plaintiff to the policestation, while plaintiff continued to protest his innocence. Plaintiffwas questioned, finger-printed and photographed when he arrived at thestation. Defendants told plaintiff they would check to see whether hisprints matched the prints on the criminal arrest records. Osika thensubmitted the fingerprints they had just taken to SPBI, which faxedconfirmation that plaintiff's prints matched the fingerprints on file forplaintiff, and gave an identical criminal history printout. Osika alsoresearched plaintiff's DWI arrest; the file for that arrest contained anidentical arrest record, including the two felony convictions. Osika thencontacted SPBI again, and found that there were no fingerprints on filewith the felony convictions, and that the arrest data for those crimeshad been submitted by two separate departments, and were both more thantwenty years old. He was thus unable to further confirm or denyplaintiff's claims of innocence while plaintiff was in custody.

While plaintiff was being questioned, defendant Rodriguez told him thathe hoped he owned his house because he was going to need it for a bond,and told plaintiff he was lying about the mix-up. Plaintiff was"extremely upset" by what Rodriguez told him. Plaintiff was then placedin a cell until he was released on a promise to appear, approximately twohours after he arrived at the station. When he was released, plaintiffclaims he was told by defendant Osika that the police did not run a taxiservice and that he would have to get his own ride home; however, it isundisputed that he was driven home by defendant Piccurillo. Whenplaintiff arrived home, he did not have a key to his house, and broke thedoor to get in.

After plaintiff was released, Osika continued his investigation intoplaintiff's allegations of misidentification. He contacted the WolcottPolice Department regarding the burglary conviction, and was informedthat all records, including fingerprints, had been purged due to the ageof the offense. He then contacted a lieutenant in the InvestigationsUnit, who found an index card recording a burglary arrest on January 5,1975, of a Peter B. Martin of New Fairfield, Connecticut, whose date ofbirth was July 17, 1957. Osika concluded that this arrest had beenincorrectly attributed to plaintiff. He also learned that Peter B. Martinhad served time in state prison for this offense, and had numeroustattoos anda partially amputated finger, but had no record in the StateCriminal Record Check ("SCRC") database.

Osika then attempted to determine whether the larceny arrest wasproperly attributed to plaintiff. He contacted the Bridgeport SuperiorCourt, which had no information. The state probation department thenresearched records indicating that Peter B. Martin had served a period ofsupervised release for a larceny conviction in 1978, although no SCRCinformation existed for any "Peter B. Martin." Osika did find a recordfor Peter B. Martin under a different SPBI number and fingerprintclassification. Osika then discussed his findings with the SPBIFingerprint Unit and Records Unit, which concluded that the arrest datawas attributed to plaintiff's record in error. The incorrect felony datawas removed from plaintiff's file on December 8, 1998.

Three days later, the charges against plaintiff were dismissed, andOsika obtained authorization to return the seized property. Plaintiff'sguns were returned to him on December 14, 1998. Those guns that had beenin cases were returned in the original condition; however, the six gunsthat were taken without cases had nicks and scratches on them when theywere returned. Plaintiff had those guns appraised by C.W. Mellette,Custom Gunsmith. According to the appraisal, it will cost $2,472 torepair or restore the guns.

Standard

A court shall grant a motion for summary judgment "if the pleadings,depositions, answers to interrogatories, and admissions on file, togetherwith affidavits . . . show that there is no genuine issue as to anymaterial fact and that the moving party is entitled to a judgment as amatter of law." Silver v. City Univ., 947 F.2d 1021, 1022 (2d Cir.1991). The moving party bears the initial burden of establishing that nogenuine issue of material fact exists and that the undisputed facts showthat she is entitled to judgment as a matter of law. Rodriguez v. City ofNew York, 72 F.3d 1051, 1060 (2d Cir. 1995). In determining whether agenuine issue of material fact exists, a court must resolve allambiguities and draw all reasonable inferences against the moving party.See Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 587(1986); Brady v. Town of Colchester, 863 F.2d 205, 210 (2d Cir. 1988).

The non-moving party must "go beyond the pleadings and by her ownaffidavits, or by the `depositions, answers to interrogatories, andadmissions on file,' designate `specific facts showing that there is agenuine issue for trial.'" Celotex Corp. v. Catrett, 477 U.S. 317, 324(1986). A party seeking to defeat a summary judgment motion cannot "relyon mere speculation or conjecture as to the true nature of facts toovercome a motion." Lipton v. Nature Co., 71 F.3d 464, 469 (2d Cir. 1995)(quoting Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986))."Only disputes over facts that might affect the outcome of the suit underthe governing law will properly preclude the entry of summary judgment.Factual disputes that are irrelevant or unnecessary will not be counted."Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Discussion

Defendants begin by arguing that they are entitled to summary judgmenton qualified immunity grounds, claiming that objectively reasonableofficers would have believed they had probable cause to arrest plaintiffand search his premises under these circumstances. However, the SupremeCourt has instructed that district courts facing allegations ofconstitutional violations should first determine whetheror not a violation occurred, and only if a violation is found go on toassess whether the defendants are entitled to qualified immunity for theiracts. See Wilson v. Layne, 526 U.S. 603, ___, 119 S.Ct. 1692, 1696-97(1999); County of Sacramento v. Lewis, 523 U.S. 833, 842 n. 5 (1998);Siegert v. Gilley, 500 U.S. 226, 232 (1991); Lauro v. Charles,219 F.3d 202, 206 (2d Cir. 2000); X-Men Sec. Inc. v. Pataki, 196 F.3d 56,66 (2d Cir. 1999).

Although Second Circuit caselaw suggests that Wilson should not be readas a mandate to "the lower courts to abandon a widespread practice and agenerally recognized precept of avoiding unnecessary constitutionaladjudication," the Second Circuit has also noted that "where defendantsare entitled to qualified immunity, it is more consistent withtraditional principles of restraint to reach the merits when theconstitutional right in question does not exist than when it does; in theformer circumstance, the finding of no right is the holding, and thecourt is not declaring new constitutional rights in dictum that cannot beappealed." Horne v. Coughlin, 191 F.3d 244, 248, 249 (2d Cir.), cert.denied, 120 S.Ct. 594 (1999); see also Mollica v. Volker, 229 F.3d 366,(2d. Cir. 2000).

Because the Court concludes that the undisputed facts show thatdefendants did not violate plaintiff's constitutional rights when theyarrested him and searched his property, no new constitutional right isdeclared, and the Court does not reach the issue of qualified immunity.3

A. Arrest without probable cause

"There can be no federal civil rights claim for false arrest where thearresting officer had probable cause." Singer v. Fulton County Sheriff,63 F.3d 110, 118 (2d Cir. 1995). Probable cause to arrest exists when"the authorities have knowledge or reasonably trustworthy informationsufficient to warrant a person of reasonable caution in the belief thatan offense has been committed by the person to be arrested." Golino v.City of New Haven, 950 F.2d 864, 870 (2d Cir. 1991). The amount ofevidence required to establish probable cause to arrest is less than thatnecessary to support a conviction and, thus, the fact that the chargesagainst plaintiff were dismissed does not necessarily mean that probablecause was lacking for his arrest. See Krause v. Bennett, 887 F.2d 362,371 (2d Cir. 1989). In determining whether probable cause to arrestexisted, the Court must evaluate the totality of the circumstances basedon those facts available to the officers at the time of the arrest. SeeIllinois v. Gates, 462 U.S. 213, 238 (1983); Lowth v. Town ofCheektowaga, 82 F.3d 563, 569 (2d Cir. 1996). "[T]he existence ofprobable cause, vel non, is assessed based on probabilities, notcertitude, as viewed by a reasonably prudent law enforcement officialconsidering all the objective facts known prior to effectuating thearrest." Carson v. Lewis, 35 F. Supp.2d 250, 258 (E.D.N.Y. 1999).

Plaintiff does not claim that the information submitted by thedetectives was insufficient to provide probable cause for the arrest andsearch warrants or that the officers knew the information regarding thetwo felony convictions was false. Instead, plaintiff's argument goes, theofficers should have been suspicious because he had a hunting license andbecause they were aware of his good reputation in the community.According to plaintiff, the Fourth Amendment required the officers toinvestigate the "obvious discrepancy" between his Connecticut huntinglicense and the criminal history printout showing that plaintiff had twofelony convictions before they sought the warrants.

Defendants, in turn, argue that an arrest pursuant to a valid warrantsupported by probable cause does not violate the Fourth Amendment eventhough it later turns out that the information was erroneous. Defendantsclaim that because the SPBI records are a reliable source, and they wereunaware that the information was incorrect when they sought the warrant,the arrest did not violate the Fourth Amendment. Defendants furtherassert that they were under no duty to investigate plaintiff's claims ofinnocence when arrested, and that they did all they could at time toconfirm that they arrested the right person.

The critical issue here is whether detectives' Rodriguez and Levesque'sawareness of the fact that plaintiff had a hunting license made theiractions in seeking a warrant unreasonable. Hunting licenses are issuedpursuant to Conn. Gen. Stat. §§ 26-30 and 26-31, following completionof a course of instruction in safety practices, and can be renewed bypresenting a certificate showing that the applicant has held a residentlicense to hunt with firearms in any state or county within the past fiveyears. See Conn. Gen. Stat. § 26-31(a), (b). However, these statutesdo not provide that licenses to hunt with firearms may not be issued toconvicted felons.

After the required background check in the gun purchase was conductedhere, the state police records showed that plaintiff had two felonyconvictions. The officers sought to confirm plaintiff's name, address,date of birth, and determined that plaintiff's date of birth matched thaton the criminal history records. There is no allegation here that theSPBI criminal history records generally are not a reliable source, andcontrary to plaintiff's argument, there was no reason for the detectivesto believe that their information was inaccurate. Instead, there had beena clerical error that took detective Osika several days to uncover oncehe was alerted to the possibility of misidentification. Under thesecircumstances, the Court concludes that defendants had probable cause toarrest plaintiff and therefore did not violate plaintiff's FourthAmendment rights. See Baker v. McCollan, 443 U.S. 137, 145-46 (1979) (norecovery under § 1983 where plaintiff was arrested with probablecause and pursuant to valid arrest warrant that later turned out to bemistaken); Ruiz v. Herrera, 745 F. Supp. 940, 946 (S.D.N Y 1990) ("[I]f apolice officer deliberately arrests someone without probable cause, he isliable under 42 U.S.C. § 1983. If, on the other hand, a policeofficer arrests someone with probable cause, but by mistake, there is noconstitutional violation.").4

Finally, to the extent that plaintiff's brief can be read as arguingthat his protestations of innocence and request that the arrestingofficers contact his attorney required the arresting officers toinvestigate those assertions before arresting him, that argument issimilarly unsupported by caselaw. See McCollan, 443 U.S. at 145-46 ("wedo not think a sheriff executing an arrest warrant is required by theConstitution to investigate independently every claim of innocence,whether the claim is based on mistaken identity or a defense such as lackof requisite intent"); Ricciuti v. New York City Transit Auth.,124 F.3d 123, 128 (2d Cir. 1997) ("Once a police officer has a reasonablebasis for believing there is probable cause, he is not required toexplore and eliminate every theoretically plausible claim of innocencebefore making an arrest.").

B. Unreasonable search and seizure

Defendants next claim that they are entitled to summary judgmentbecause the search and seizure did not violate the Fourth Amendment.Plaintiff does not argue that the police lacked probable cause to searchhis premises. Instead, he asserts that the manner in which the search wascarried out was unreasonable.

"The text of the Fourth Amendment makes clear that all searches must be`reasonable.'" United States v. Tavarez, 995 F. Supp. 443, 449 (S.D.N.Y.1998). This reasonableness requirement applies not only to thecircumstances under which a warrant may be issued, but also to the mannerand scope of a search. See Ayeni v. Mottola, 35 F.3d 680, 684 (2d Cir.1994); Rivera v. United States, 928 F.2d 592, 606-07 (2d Cir. 1991). "Thegeneral touchstone of reasonableness which governs Fourth Amendmentanalysis governs the method of execution of the warrant. Excessive orunnecessary destruction of property in the course of a search warrant mayviolate the Fourth Amendment, even though the entry itself is lawful andthe fruits of the search are not subject to suppression." United Statesv. Ramirez, 523 U.S. 65, 71 (1998). Thus, a search that is undulydestructive or invasive in nature may violate an individual's FourthAmendment rights.

It is unclear from plaintiff's brief precisely which elements of thesearch he believes are unreasonable. However, he appears to argue thatbecause the arrest and search were conducted while his children waitedfor the school bus, he was held for two hours in handcuffs, and "in thecourse of the search, they trashed the house itself, throwing andscattering property needlessly and destructively," Pl. Mem. in Opp. at3, the manner in which the search and arrest warrants were carried outviolated the Fourth Amendment. For the reasons that follow, the Courtconcludes that plaintiff's version of the facts falls far short ofestablishing a constitutional violation.

As to the timing of the search, while plaintiff argues that the policeshould have come at different time so that the children would not witnesstheir father being arrested, plaintiff also admitted in his depositionthat he left his house around 7:00 in the morning to go to work.Plaintiff cites no caselaw for the proposition that police cannot executea warrant in the presence of children. There is no allegation that thepolice harmed or threatenedthe children in any way. Under thesecircumstances, there was nothing unreasonable in the decision to executethe warrant at a time when the police reasonably believed plaintiff wouldbe at home.

Further, plaintiff's contention that he was handcuffed for two hourswhile the search was conducted does not establish a Fourth Amendmentconstitutional violation. A "warrant to search for contraband founded onprobable cause implicitly carries with it the limited authority to detainthe occupants of the premises while a proper search is conducted."Michigan v. Summers, 452 U.S. 692, 705 (1981). Therefore, "[a]bsentspecial circumstances, the police . . . have the authority to detainoccupants of premises while an authorized search is in progress,regardless of individualized suspicion." Rivera, 928 F.2d at 606. Here,plaintiff was under arrest while the officers searched his house, and hehas offered no evidence of any special circumstances that might make thedetention during the search unlawful. See Crosby v. Hare, 932 F. Supp. 490,493 (W.D.N Y 1996). "For their own safety, it was more than reasonablefor the police to detain [plaintiff] . . . for a [] period of time inhandcuffs" while the search of the premises was conducted. Id. (citingUnited States v. Fountain, 2 F.3d 656, 666 (6th Cir. 1993); Howard v.Schoberle, 907 F. Supp. 671, 677 (S.D.N Y 1995)). Plaintiff's factssimply do not demonstrate any constitutional violation.

Further, despite the characterization of plaintiff's house as "trashed"in plaintiff's brief, in his deposition he clearly stated that the onlypremises damage was that the officers left his office "messy." Thephotographs submitted in support of plaintiff's opposition to summaryjudgment similarly do not show any destruction of property (apart fromplaintiff's door, which he himself broke down upon returning home). Theofficers were searching for firearms, and plaintiff has provided noevidence that the search was unnecessarily thorough to fulfil itspurpose. Under these circumstances, the Court finds that plaintiff's claimof the nature of the search of the premises cannot constitute a FourthAmendment violation. See Lewis v. City of Mount Vernon, 984 F. Supp. 748,756 (S.D.N.Y. 1997) (allegation that officers left plaintiffs' apartment"ransacked" did not state constitutional violation where plaintiffs"presented no evidence that the officers wantonly damaged or destroyedproperty or conducted the search in a manner inconsistent with itsprofessed purpose of finding illicit drugs"; instead, "the only inferencethat can be drawn is that the officers conducted a thorough search, asthey were permitted to do in executing a warrant").

Plaintiff also argues that defendants negligently damaged several ofhis firearms at some point after the guns were seized and before theywere returned to him, and that it will cost approximately $2,500 torepair the damaged guns. Defendants respond that negligent damage toproperty after it has already been seized does not violate the FourthAmendment, and that plaintiff's remedy for the damage is to be found inhis action against the State currently pending before the ClaimsCommissioner. In light of the existence of this post-deprivationprocedure, plaintiff wisely does not press his Fourteenth Amendment dueprocess claim that defendants negligently damaged his property. See Parratv. Taylor, 451 U.S. 527, 539 (1981) (negligent destruction of propertydoes not violate Fourteenth Amendment assuming an adequatepost-deprivation remedy exists); Hudson v. Palmer, 468 U.S. 517, 533(1984)(intentional destruction of property does not violate theFourteenth Amendment if there is a meaningful post-deprivation remedy).Instead, plaintiff argues that the damage was part of the unreasonableseizure of his property.

The Court has previously found that the police acted reasonably withinthe scope of the Fourth Amendment when they searched the house, and theseizure of the seventeen firearms itself was reasonable, as the guns wereclearly evidence supporting the conclusion that plaintiff had committed acrime. See New Jersey v. T.L.O., 469 U.S. 325, 345-46 (1985) (wherepolice could reasonably believe that an item seized may be relevantevidence in a particular criminal prosecution, holding the item does notviolate the Fourth Amendment); Warden v. Hayden, 387 U.S. 294, 306-08(1967) (same). Plaintiff does not claim that defendants unnecessarilydelayed return of his property following the determination that thearrest and seizure were based on erroneous information.

Neither plaintiff nor defendants have analyzed whether conduct by thepolice after property has already been taken into possession is properlyanalyzed under the Fourth Amendment. The Sixth Circuit has provided auseful analysis in Fox v. Van Oosterum, 176 F.3d 342, 350-51 (6th Cir.1999), which held that police refusal to return seized property for fourmonths that occurred following a reasonable seizure of property does notbring "about an additional seizure nor change[] the character of the[original] seizure from a reasonable one to an unreasonable one becausethe seizure was already complete . . . ." The court reasoned that whilethe Fourth Amendment protects a person's property interest in hispossessions, that interest is in the retention of possession, rather thanin gaining return of the property once it has been lawfully seized: "Oncethat act of taking the property is complete, the seizure has ended andthe fourth Amendment no longer applies." Id. at 351. The court alsoobserved that such claims are more commonly encompassed within theprocedural due process analysis of the Fourteenth Amendment. Id. at 352;see also Wagner v. Higgins, 754 F.2d 186, 194 (6th Cir. 1985) (Contie,J., concurring) ("[t]he appropriate source of constitutional protectionagainst" alleged interference with a person's possessions, contrastedwith temporary seizures, "lies not in the fourth amendment but in the dueprocess clause of the fourteenth amendment"). This Court finds thisreasoning persuasive. That the police allegedly scratched the guns whilethey were in police custody may, as previously noted, give rise to anegligence claim. It does not, however, implicate the Fourth Amendment'sprohibition on unreasonable seizures.

Finally, the alleged "verbal taunting and abuse" by Rodriguez whileplaintiff was at the station does not rise to the level of a violation ofplaintiff's constitutional rights as matter of law. Although verbaltaunting by police might conceivably be so abusive and offensive as toviolate the Constitution under some circumstances, the conduct actuallydescribed by plaintiff is not. According to plaintiff, Rodriguez told himhe hoped plaintiff owned his house because he would need it to post bondand that he was lying about the mistaken identity. In the Court's view,this conduct falls far short of proving a Fourth Amendment constitutionalviolation.

C. Pendent state law claim

Having determined that defendants are entitled to summary judgment onplaintiff's federal claims, the Court declines toexercise supplementaljurisdiction over plaintiff's state law claim of intentional inflictionof emotional distress.5 See United Mine Workers of America v. Gibbs,383 U.S. 715, 726 (1966) ("[I]f the federal claims are dismissed beforetrial, even though not insubstantial in the jurisdictional sense, thestate claims should be dismissed as well."); Lennon v. Miller, 66 F.3d 416,426 (2d Cir. 1995) (same).

Conclusion

Although plaintiff's distress at being the subject of an erroneousarrest is certainly understandable, the facts set forth by plaintiff orotherwise undisputed show that the state police defendants had probablecause to seek the arrest and search warrants, and executed those warrantsreasonably. Accordingly, for the reasons discussed above, defendants'motion for summary judgment [Doc. # 26] is GRANTED.

The Clerk is directed to close this case.

IT IS SO ORDERED.

1. Plaintiff's complaint also names trooper Rodgers as a defendant, whowas dismissed on July 9, 1999.

2. See Conn. Gen. Stat. § 29-37(a).

3. Although plaintiff's complaint also alleges that defendantsviolated the Eighth Amendment by imposing an excessive bail, theundisputed facts of this case show that defendant was not kept incustody, but was instead released on a written promise to appealapproximately two hours after he was taken to the police station forprocessing. Indeed, during his deposition, plaintiff conceded that he wasnot "held prisoner under an unreasonable and excessive bail bond" becausehe was released. Compare Compl. ¶ 1, with Dep. at 78-79. Therefore,while defendants' motion does not address the Eighth Amendment claim,this oversight is not a bar to summary judgment in this case, as theCourt considers that plaintiff has abandoned this claim.

4. Plaintiff's contention that the probable cause determination shouldhave taken into account the fact that defendant Piccurillo knew whoplaintiff was because plaintiff had done contracting work in the buildingwhere Piccurillo worked is legally unsupported, and provides no legallyrelevant inference of lack of probable cause. The mere fact thatPiccurillo knew plaintiff by sight does not make it any less likely thatplaintiff had been convicted of felonies in 1975 and 1978.

5. Defendants inexplicably devote two pages in their brief to arguingthat they are entitled to summary judgment on plaintiff's state law falsearrest claim. Plaintiff's complaint contains no such claim.

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