     14-3089-cv
     Henry v. Tracy

                                    UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

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

10          At a stated term of the United States Court of Appeals for the Second Circuit, held at
11   the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
12   on the 19th day of October, two thousand fifteen.
13
14   PRESENT:
15              GUIDO CALABRESI,
16              BARRINGTON D. PARKER,
17              SUSAN L. CARNEY,
18                          Circuit Judges.
19   _________________________________________
20
21   BEVERLY HENRY, THADDEUS ROUGIER,
22
23                       Plaintiffs–Counter-Defendants–Appellants,
24
25                                v.                                                                 No. 14-3089-cv
26
27   DEPUTY SHERIFF RAY TRACY, DEPUTY SHERIFF
28   RAYMOND NEEDLE, DEPUTY SHERIFF CRAIG BEITER,
29   SHERIFF’S INVESTIGATOR DANIEL DOUGLAS,
30
31              Defendants–Counter-Claimants–Appellees.*
32   _________________________________________
33
34   FOR APPELLANTS:                                                   Steven M. Cohen, HoganWillig, PLLC,
35                                                                     Amherst, NY.

     *
         The Clerk of Court is respectfully directed to amend the case caption as set forth above.
 1
 2   FOR APPELLEES:                                       Elizabeth M. Bergen, Gibson, McAskill &
 3                                                        Crosby LLP, Buffalo, NY.
 4
 5          Appeal from a judgment and order of the United States District Court for the
 6   Western District of New York (Hugh B. Scott, M.J.).

 7          UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
 8   ADJUDGED, AND DECREED that the judgment entered on May 22, 2014, and the
 9   order entered July 18, 2014, are AFFIRMED.

10          Plaintiffs-Appellants Beverly Henry and Thaddeus Rougier bring this § 1983 suit to
11   challenge a traffic stop and search whose duration and other elements they assert violated
12   their Fourth Amendment rights, and the trial of which they claim was infected by error. We
13   assume the parties’ familiarity with the underlying facts and the procedural history of the
14   case, to which we refer only as necessary to explain our decision to affirm.

15          At trial, the jury found that plaintiffs’ Fourth Amendment rights were not violated
16   because Rougier consented to the search of his vehicle. Plaintiffs dispute that finding and
17   contend that they are entitled to judgment as a matter of law under Rule 50(b) on the
18   question of consent. We review de novo rulings on motions for judgment as a matter of law
19   under Rule 50(b). Velez v. City of New York, 730 F.3d 128, 134 (2d Cir. 2013).

20          A Rule 50(b) movant may prevail only when “a party has been fully heard on an issue
21   during a jury trial and the court finds that a reasonable jury would not have a legally
22   sufficient evidentiary basis to find for the party on that issue.” Id. (quoting Fed. R. Civ. P.
23   50(a)(1)). In deciding a motion for judgment as a matter of law, “[t]he court cannot assess
24   the weight of conflicting evidence, pass on the credibility of the witnesses, or substitute its
25   judgment for that of the jury,” and “must disregard all evidence favorable to the moving
26   party that the jury is not required to believe.” Tolbert v. Queens College, 242 F.3d 58, 70 (2d
27   Cir. 2001) (internal quotation marks and emphasis omitted).

28          The jury here heard conflicting testimony on the question whether Rougier consented
29   to the x-ray search of his car. Rougier testified that he was never asked for consent.

                                                      2
 1   Defendants-Appellees Ray Tracy and Daniel Douglas, officers in the Niagara County
 2   Sheriff’s Department, both testified that Douglas asked Rougier whether he would prefer to
 3   wait for a search warrant or would consent to have the car taken to the x-ray station, and
 4   that Rougier consented. Because the jury could have disbelieved Rougier’s testimony and
 5   believed that of the officers, we see no error in the District Court’s denial of plaintiffs’ Rule
 6   50 motion.

 7            In an argument that they did not make in the trial court proceedings until after the
 8   deliberating jury propounded a question about consent, plaintiffs contend that the evidence
 9   indisputably shows that Rougier was coerced into consenting to the search. Plaintiffs argue
10   that the choice Douglas offered—between taking the car for an x-ray examination or waiting
11   longer for a search warrant—is impermissibly coercive. We have repeatedly held, however,
12   that it is not impermissibly coercive for officers to represent that, if consent is not given, a
13   search warrant could be obtained, in contexts like the one before us in which the
14   obtainability of a search warrant is in fact likely. See United States v. Faruolo, 506 F.2d 490, 495
15   (2d Cir. 1974) (“[T]he well founded advice of a law enforcement agent that, absent a consent
16   to search, a warrant can be obtained does not constitute coercion.”); see also United States v.
17   Vasquez, 638 F.2d 507, 528-29 (2d Cir. 1980); United States v. Calvente, 722 F.2d 1019, 1023
18   (2d Cir. 1983). Accordingly, plaintiffs’ argument fails.

19            Plaintiffs also challenge, in connection with their Rule 50(b) motion, the District
20   Court’s decision to narrow the scope of the jury’s inquiry to the lawfulness of the x-ray
21   inspection.1 In its summary judgment ruling, the court concluded that there was no dispute
22   of material fact as to (1) the basis for the initial traffic stop, (2) Rougier’s consent to Tracy’s
23   initial request to look inside the car, and (3) the K-9 dog’s positive alert at the trunk of the
24   vehicle. Plaintiffs argue that these conclusions were erroneous because Tracy had no
25   reasonable suspicion that justified detaining Rougier and Henry for longer than it took to
26   write a ticket.



     1
       This ruling was recommended by the magistrate judge and adopted by the district judge (Arcara, J.) before the case was
     transferred to the magistrate judge for trial and subsequent proceedings, as agreed to by the parties.
                                                                3
 1          An otherwise lawful traffic stop can violate the Fourth Amendment “if it is
 2   prolonged beyond the time reasonably required to complete the mission.” Illinois v. Caballes,
 3   543 U.S. 405, 407 (2005). “[T]he tolerable duration of police inquiries in the traffic-stop
 4   context is determined by the seizure’s ‘mission’—to address the traffic violation that
 5   warranted the stop and attend to related safety concerns.” Rodriguez v. United States, 135
 6   S. Ct. 1609, 1614 (2015) (citations omitted). Here, no one disputes that Tracy obtained
 7   Rougier’s explicit consent for a search before he completed writing the tickets. During that
 8   consent search, the drug-sniffing dog alerted, creating probable cause for a continued search.
 9   Cf. Florida v. Harris, 133 S. Ct. 1050, 1058 (2013) (positive dog sniff may constitute probable
10   cause). Accordingly, at no time before the disputed x-ray search took place did Tracy and
11   the other officers lack a lawful basis for detaining plaintiffs and searching their vehicle. The
12   District Court did not err in limiting the jury to consideration of the x-ray search.

13          Plaintiffs make the same arguments in support of their Rule 59(a) motion for a new
14   trial and Rule 60(b) motion for relief from judgment. We review the judge’s rulings on these
15   counts for abuse of discretion. Velez, 730 F.3d at 134; Ruotolo v. City of New York, 514 F.3d
16   184, 191 (2d Cir. 2008). Although a trial judge considering a motion for a new trial “may
17   weigh the evidence and the credibility of witnesses,” he “should rarely disturb a jury’s
18   evaluation of a witness’s credibility.” Raedle v. Credit Agricole Indosuez, 670 F.3d 411, 418 (2d
19   Cir. 2012). In light of the conflicting testimony offered at trial, we easily conclude that the
20   District Court did not abuse its discretion by declining to grant plaintiffs a new trial or relief
21   from judgment.

22          Next, plaintiffs ask us to hold that, despite the absence of a contemporaneous
23   objection, it was error for the District Court to accept the jury’s verdict rather than
24   adjourning the proceedings in light of the circumstances detailed below. Because plaintiffs
25   did not object to the verdict being read at the time, we review this challenge for plain error.
26   See United States v. Young, 140 F.3d 453, 457 (2d Cir. 1998). We will disturb the verdict only if
27   there was error, it was plain, it affected substantial rights, and it “seriously affect[ed] the
28   fairness, integrity, or public reputation of judicial proceedings.” Id. at 457.


                                                      4
 1          Here, the jury delivered its verdict after approximately six hours of deliberation.
 2   During that time, the jury sent out three questions regarding the court’s instruction regarding
 3   consent. While the court and the parties were preparing an answer to the jury questions, the
 4   jury announced that it had reached a verdict. Before accepting the verdict, the magistrate
 5   judge read the answer to the jury’s consent questions (to which the parties had agreed). He
 6   took precautions to ensure that the jurors had an opportunity to reconsider their verdict,
 7   which was still unannounced, in light of that answer. No juror objected. The magistrate
 8   judge also gave counsel an opportunity to object before the verdict was read, and no
 9   objection was raised nor adjournment requested. Under these circumstances, we see no
10   basis for concluding that the District Court clearly erred by accepting the jury’s verdict.

11          Plaintiffs also contend that these interactions with the jury support their Rule 59(e)
12   motion to alter the judgment. We review the denial of a motion to alter or amend judgment
13   under Rule 59(e) for abuse of discretion. See Empresa Cubana del Tabaco v. Culbro Corp., 541
14   F.3d 476, 478 (2d Cir. 2008) (per curiam). The District Court denied plaintiffs’ motion on
15   the ground that there was “no miscarriage of justice” in the verdict procedure. Henry v.
16   Tracy, No. 10-cv-800 (W.D.N.Y. July 18, 2014) (Docket No. 127, at 23). For the reasons set
17   forth above, we agree, and find no abuse of discretion here.

18          Finally, in a ministerial matter, parties will bear their own costs. We do not consider
19   defendants’ request for sanctions, however, because the request was not made, as required,
20   by separate motion. Fed. R. App. P. 38.

21                                                * * *

22          We have considered plaintiffs’ remaining arguments on appeal and find them to be
23   without merit. For the reasons set out above, the judgment of the District Court is
24   AFFIRMED.

25                                                        FOR THE COURT:
26                                                        Catherine O’Hagan Wolfe, Clerk of Court




                                                     5
