     10-4827-pr
     Abreu v. Romero
                              UNITED STATES COURT OF APPEALS
 1                                FOR THE SECOND CIRCUIT
 2
 3                                          SUMMARY ORDER
 4
 5   RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
 6   CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007,
 7   IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
 8   PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1. WHEN CITING A
 9   SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
10   MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC
11   DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING
12   A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
13   REPRESENTED BY COUNSEL.
14
15         At a stated term of the United States Court of Appeals for the Second Circuit, held at
16   the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
17   York, on the 7th day of March, two thousand twelve.
18
19          PRESENT: AMALYA L. KEARSE,
20                   RAYMOND J. LOHIER, JR.,
21                   CHRISTOPHER F. DRONEY,
22                                  Circuit Judges,
23
24          ------------------------------------------------------------------
25
26          ERNESTO ABREU,
27                                                   Plaintiff-Appellant,
28
29                                   v.                                          No. 10-4827-pr
30
31          ANTHONY ROMERO, DETECTIVE, SHIELD # 05726,
32          ALFRED HERNANDEZ, DETECTIVE, SHIELD # 5046, JOHN
33          DOE, P.O., MARK MACDONNELL, SERGEANT, CAPTAIN
34          HOUGH, OVERALL SUPERVISOR, CURRY, LT., # 3,
35          WARRANT SUPERVISOR, MALONE, LT. # 6, INSP. HOURS,
36          CULLY, LT. # 18, WARRANT SUPERVISOR, FLEMMING,
37          DETECTIVE, # 7, ENTRY HYDRO, VIOLA, # 8, ENTRY
38          HYDRO, RAMOS, # 9, ENTRY WALK-ON, NATHAN, # 11,
39          FRONT WALK-ON, MCLOUGHLIN, DETECTIVE, # 5,

                                                         1
 1         BUNKER SECURITY, BASTOS, DETECTIVE, # 10, HALL
 2         SEC., SMYKOSKI, DETECTIVE, # 12, FRONT SECURITY,
 3         THOMPSON, DETECTIVE # 13, FRONT SECURITY,
 4         KNIGHT, P.O., # 16, OPERATION IDS, CASTANZO,
 5         DETECTIVE, # 17, CANINE NOTIFIED,*
 6
 7                                                  Defendants-Appellees.
 8
 9         --------------------------------------------------------------------
10
11         FOR APPELLANT:                   Ernesto Abreu, pro se, Batavia, NY.
12
13         FOR APPELLEE:                    Pamela Seider Dolgow, of counsel (Ingrid Gustafson,
14                                          Law Student, on the brief), for Michael A. Cardozo,
15                                          Corporation Counsel of the City of New York, New
16                                          York, NY.
17
18
19         Appeal from a judgment of the United States District Court for the Southern District
20   of New York (Loretta A. Preska, Chief Judge).
21         UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
22   AND DECREED that the judgment of the District Court is AFFIRMED.
23         Plaintiff-appellant Ernesto Abreu sued various officers of the New York City
24   Police Department pursuant to 42 U.S.C. § 1983, claiming that they violated his Fourth
25   Amendment rights when they entered and searched his apartment on February 26, 2008,
26   discovered over two ounces of marijuana, and arrested him. Abreu also sued for false
27   arrest, malicious prosecution, and abuse of process. He now appeals from the November
28   10, 2010 judgment of the United States District Court for the Southern District of New
29   York granting the defendants’ motion for summary judgment on all of these claims.
30   Because the defendants did not violate Abreu’s constitutional rights when they searched
31   his home, arrested him, and prosecuted him for possession of marijuana, we affirm the
32   judgment of the District Court.




           *
               The Clerk of Court is directed to amend the official caption as shown above.
                                                        2
 1          We review an award of summary judgment de novo. Gorzynski v. JetBlue
 2   Airways Corp., 596 F.3d 93, 101 (2d Cir. 2010). “Summary judgment is appropriate
 3   when, construing the evidence in the light most favorable to the non-moving party, ‘there
 4   is no genuine dispute as to any material fact and the movant is entitled to judgment as a
 5   matter of law.’” Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98, 104 (2d
 6   Cir. 2011) (quoting Fed. R. Civ. P. 56(a)). We assume the parties’ familiarity with the
 7   underlying facts and record of prior proceedings, which we reference only as necessary to
 8   explain our decision to affirm.
 9          1. Illegal Search and Seizure
10          The officers who searched Abreu’s apartment on the night in question did so
11   pursuant to a valid warrant, which was issued on the strength of defendant Detective
12   Romero’s affidavit asserting that he had overseen a “controlled buy” of narcotics at the
13   apartment. Abreu argues that the “controlled buy” did not occur as Detective Romero
14   represented it, and accordingly that the search warrant was not supported by probable
15   cause. However, “a search or seizure pursuant to a warrant is presumed valid,” and a
16   party seeking to “challenge the truthfulness of factual statements made in the affidavit . . .
17   must show that there were intentional and material misrepresentations or omissions in
18   [the] warrant affidavit.” United States v. Awadallah, 349 F.3d 42, 64 (2d Cir. 2003)
19   (citation omitted) (citing Franks v. Delaware, 438 U.S. 154, 164-72 (1978)). Because
20   Abreu adduced no evidence that the affidavit supporting the search warrant in this case
21   contained intentional, material misrepresentations, the District Court correctly granted
22   summary judgment to the defendants on this claim.
23          2. False Arrest and Malicious Prosecution
24          The District Court also correctly dismissed Abreu’s claims for false arrest and
25   malicious prosecution. “Under New York law, the existence of probable cause is an
26   absolute defense to a false arrest claim,” Jaegly v. Couch, 439 F.3d 149, 152 (2d Cir.

                                                   3
 1   2006), and to a malicious prosecution claim, Savino v. City of New York, 331 F.3d 63, 72
 2   (2d Cir. 2003). “An officer has probable cause to arrest when he or she has ‘knowledge
 3   or reasonably trustworthy information of facts and circumstances that are sufficient to
 4   warrant a person of reasonable caution in the belief that the person to be arrested has
 5   committed or is committing a crime.’” Jaegly, 439 F.3d at 152 (quoting Weyant v. Okst,
 6   101 F.3d 845, 852 (2d Cir. 1996)). Like the District Court, we conclude that the
 7   defendants had probable cause to arrest Abreu after they discovered over two ounces of
 8   marijuana in his bedroom. Accordingly, the District Court correctly granted summary
 9   judgment to the defendants on Abreu’s claims for false arrest and malicious prosecution.
10          3. Abuse of Process
11          Finally, we conclude that the District Court correctly granted summary judgment
12   on Abreu’s claim for malicious abuse of process. To make out such a claim, Abreu was
13   required to demonstrate that the defendants employed legal process “in order to obtain a
14   collateral objective that is outside the legitimate ends of the process,” such as retribution.
15   Cook v. Sheldon, 41 F.3d 73, 80 (2d Cir. 1994). Abreu has proffered no evidence to
16   suggest that the defendants had a collateral objective when they arrested and prosecuted
17   him for possession of marijuana.
18          We have considered Abreu’s remaining arguments on appeal and conclude that
19   they are without merit. Accordingly, the judgment of the District Court is AFFIRMED.
20                                              FOR THE COURT:
21                                              Catherine O’Hagan Wolfe, Clerk of Court
22
23




                                                    4
