18-3336
Mastromonaco v. County of Westchester, et al.

                              UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                          SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.



        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
9th day of October, two thousand nineteen.

Present:    GUIDO CALABRESI,
            ROSEMARY S. POOLER,
            MICHAEL H. PARK,
                        Circuit Judges.
_____________________________________________________

DEREK MASTROMONACO,

                                  Plaintiff-Appellant,

                         v.                                                   18-3336-cv

COUNTY OF WESTCHESTER, TIMOTHY JOYCE, INDIVIDUALLY, GEORGE
WINSMAN, INDIVIDUALLY, ROBERT PAVONE, INDIVIDUALLY, JOHN DOE NO. 1,
JOHN DOE NO. 2., JOHN DOE NO. 3, NAMES BEING FICTITIOUS, INTENDED TO BE
POLICE OFFICERS OF THE WESTCHESTER COUNTY DEPARTMENT OF PUBLIC
SAFETY, INDIVIDUALLY,

                        Defendants-Appellees.1
_____________________________________________________

Appearing for Appellant:          William Martin, Martin + Colin, P.C., White Plains, N.Y.

Appearing for Appellee:           John M. Nonna, Westchester County Attorney (David H. Chen,
                                  Westchester County Attorney’s Office, on the brief), White Plains,
                                  N.Y.
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    The Clerk of Court is directed to amend the official caption to conform with the caption above.
Appeal from the United States District Court for the Southern District of New York (Briccetti,
J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

        Appellant Derek Mastromonaco appeals from the October 4, 2018 decision and order of
the United States District Court for the Southern District of New York (Briccetti, J.) dismissing
Mastromonaco’s Section 1983 action and granting Defendants-Appellees summary judgment on
Mastromonaco’s claims of an unlawful stop, false arrest, unlawful search, unlawful detention and
confinement, excessive bail, unlawful imprisonment, malicious prosecution, and Monell claims.
We assume the parties’ familiarity with the underlying facts, procedural history, and specification
of issues for review.

        We review de novo a district court’s grant of summary judgment. See, e.g., Jova v. Smith,
582 F.3d 410, 414 (2d Cir. 2009). To be entitled to summary judgment, “the movant [must] show[]
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). A “dispute about a material fact is ‘genuine’. . . if the evidence
is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). “In determining whether there are genuine issues of material
fact, we are required to resolve all ambiguities and draw all permissible factual inferences in favor
of the party against whom summary judgment is sought.” Johnson v. Killian, 680 F.3d 234, 236
(2d Cir. 2012) (internal quotation marks and citation omitted).

    I.   Unlawful Stop

         Mastromonaco’s first argument is that he was unlawfully stopped. “[A]n officer may,
consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a
reasonable, articulable suspicion that criminal activity is afoot.” Illinois v. Wardlow, 528 U.S. 119,
123 (2000) (citing Terry v. Ohio, 392 U.S. 1, 30 (1968)). This standard is met where an officer can
“point to specific and articulable facts which, taken together with rational inferences from those
facts, reasonably warrant [the] intrusion.” Terry, 392 U.S. at 21; see also United States v. Bailey,
743 F.3d 322, 332 (2d Cir. 2014) (“The circumstances necessary to justify a Terry stop are a
reasonable basis to think that the person to be detained is committing or has committed a criminal
offense.” (internal quotation marks and citation omitted)). “When evaluating the reasonableness
of a Terry stop, the reviewing court must consider the totality of the circumstances surrounding
the stop . . . through the eyes of a reasonable and cautious police officer on the scene, guided by
his experience and training.” United States v. Bayless, 201 F.3d 116, 133 (2d Cir. 2000) (internal
quotations and citations omitted).

       We agree with the district court that Sergeant Pavone had “reasonable, articulable
suspicion” that Mastromonaco was engaged in criminal activity when he stopped Mastromonaco
in a school parking lot. Sergeant Pavone testified that the parking lot was an area known for
criminal activity, that it was evening after the school day had concluded, and that Mastromonaco’s
car was secluded and at a considerable distance away from any other campus activities. He also



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stated that Mastromonaco and his companion were reluctant to make eye contact with him as he
drove past in a marked police car and attempted to drive away abruptly in the middle of the
conversation. The record contradicts Mastromonaco’s contention that any of these facts were in
dispute.

        We agree with the district court that these facts are sufficient to establish reasonable
suspicion. See Wardlow, 528 U.S. at 124 (“Our cases have also recognized that nervous, evasive
behavior is a pertinent factor in determining reasonable suspicion. . . . Headlong flight—wherever
it occurs—is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it
is certainly suggestive of such.”); id. at 123 (“the fact that the stop occurred in ‘high crime area’
[is] among the relevant contextual considerations in a Terry analysis” (citation omitted)).

   II. False Arrest and Unlawful Search

        Mastromonaco’s second argument is that the police did not have probable cause to arrest
him, search his car, and conduct a pat-down search of his person. “Probable cause is a complete
defense to a constitutional claim of false arrest.” Betts v. Shearman, 751 F.3d 78, 82 (2d Cir. 2014)
(citations omitted)). “Probable cause to arrest exists when the officers have knowledge of, or
reasonably trustworthy information as to, facts and circumstances that are sufficient to warrant a
person of reasonable caution in the belief that an offense has been or is being committed by the
person to be arrested.” Zellner v. Summerlin, 494 F.3d 344, 368 (2d Cir. 2007). “Whether probable
cause exists depends upon the reasonable conclusion to be drawn from the facts known to the
arresting officer at the time of the arrest.” Devenpeck v. Alford, 543 U.S. 146, 152 (2004).

         We find that Mastromonaco’s claims of false arrest and unlawful search are meritless for
substantially the same reasons given by the district court in its thorough analysis. Mastromonaco’s
contention that Sergeant Pavone simply fabricated the smell of marijuana is wholly unsupported
by the record. See Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 310 (2d Cir.
2008) (“A party opposing summary judgment does not show the existence of a genuine issue of
fact to be tried merely by making assertions that are conclusory, or based on speculation.” (internal
citations omitted)). We agree with the district court that the smell of marijuana in Mastromonaco’s
car and Mastromonaco’s erratic behavior in suddenly driving away was, at a minimum, enough to
establish arguable probable cause to arrest Mastromonaco.

   III. Unlawful Detention

        Mastromonaco also argues that he was unlawfully detained because he was not arraigned
within 48 hours of his arrest. We disagree. As a general rule, the Fourth Amendment requires that
judicial determinations of probable cause be made within 48 hours of arrest. See Cty. of Riverside
v. McLaughlin, 500 U.S. 44, 56 (1991).

       The record clearly demonstrates, however, that Mastromonaco was in fact arraigned at
Westchester Medical Center within 48 hours of his arrest. See App’x at 152 (affidavit of the court
clerk of the Justice Court of the Town of Cortlandt stating that an officer of the Rochelle Bail
Agency informed the Justice Court on the day of Mastromonaco’s release that Mastromonaco was
arraigned at the hospital); App’x at 154 (deposition of Justice Ponzini characterizing his role as



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performing arraignments at the hospital); App’x at 241-42 (deposition testimony of Mastromonaco
asserting that he was never arraigned, but also stating that he could not recall when or where he
was arraigned, or if bail was set in the hospital); App’x at 420 (deposition testimony of
Mastromonaco’s father, stating that Mastromonaco was arraigned while Mastromonaco was in the
hospital). Additionally, we agree with the district court that Justice Ponzini had the authority to
arraign Mastromonaco at the hospital under New York law. See N.Y. Crim. Proc. Law § 170.15(1).
We therefore find that this argument lacks merit.

   IV. Monell Claim

       Last, Mastromonaco argues that the district court improperly dismissed his Monell claims.
We find that this argument lacks merit. It is well-settled that a Monell claim cannot succeed without
an underlying constitutional violation, and here there is no constitutional violation. See City of Los
Angeles v. Heller, 475 U.S. 796, 799 (1986).

        We have considered the remainder of Mastromonaco’s arguments and find them to be
without merit. Accordingly, the order of the district court hereby is AFFIRMED. Each side to
bear its own costs.


                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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