         12-2939-cv
         Caraballo v. City of New York, 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.


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 14th day of May, two thousand thirteen.
 5
 6       PRESENT: ROBERT D. SACK,
 7                RICHARD C. WESLEY,
 8                SUSAN L. CARNEY,
 9                         Circuit Judges
10
11
12
13       DOMINICK CARABALLO, MARITZA MULLERO,
14
15                                            Plaintiffs-Appellants,
16
17       M.N., an infant,
18
19                                            Plaintiff,
20
21                      v.                                                          12-2939-cv
22
23       CITY OF NEW YORK, JOHN AND JANE DOES
24       1 THROUGH 10, DAMON MARTIN, AND
25       THOMAS FUSCO,
26
27                                            Defendants-Appellees.
28
29
30
31       FOR APPELLANTS:               Michael Lumer, Reibman & Weiner,
32                                     Brooklyn, NY.
33
 1   FOR APPELLEES:      Pamela Seider Dolgow, Dona B. Morris,
 2                       David M. Pollack, Assistant Corporation
 3                       Counsel, for Michael A. Cardozo,
 4                       Corporation Counsel of the City of New
 5                       York, New York, NY.
 6
 7        Appeal from the United States District Court for the
 8   Eastern District of New York (Johnson, J.).
 9
10       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

11   AND DECREED that the judgment of the United States District

12   Court for the Eastern District of New York is AFFIRMED.

13       Plaintiffs-Appellants Dominick Caraballo and Maritza

14   Mullero appeal from the district court’s order granting

15   summary judgment in favor of defendants on plaintiffs’

16   claims for false arrest and imprisonment under 42 U.S.C.

17   § 1983.   We review a district court's grant of summary

18   judgment de novo.   Schnabel v. Abramson, 232 F.3d 83, 86 (2d

19   Cir. 2000).   We assume the parties’ familiarity with the

20   underlying facts, the procedural history, and the issues

21   presented for review.

22       “[T]he existence of probable cause to arrest

23   constitutes justification and is a complete defense to an

24   action for false arrest.”   Weyant v. Okst, 101 F.3d 845, 852

25   (2d Cir. 1996) (quotation marks omitted).   The district

26   court held that “Defendants Martin and Fusco had reason, as

27   persons of reasonable caution, to believe that persons

                                    2
 1   sleeping in the apartment were residents . . . and

 2   therefore, in constructive possession of the contraband

 3   found therein.”   Joint App’x 250.   Plaintiffs contend on

 4   appeal that (1) this is an erroneous statement of the law,

 5   and (2) there is no independent basis to find probable

 6   cause.

 7       “An officer has probable cause to arrest when in

 8   possession of facts sufficient to warrant a prudent person

 9   to believe that the suspect had committed or was committing

10   an offense.”   Ricciuti v. N.Y.C. Transit Auth., 124 F.3d

11   123, 128 (2d Cir. 1997).   This standard is objective and

12   encompasses “the totality of the circumstances.”     United

13   States v. Patrick, 899 F.2d 169, 171 (2d Cir. 1990).     We

14   “must consider those facts available to the officer at the

15   time of the arrest and immediately before it.”     Lowth v.

16   Town of Cheektowaga, 82 F.3d 563, 569 (2d Cir. 1996).

17       In the context of a claim for false arrest or false

18   imprisonment brought pursuant to 42 U.S.C. § 1983, moreover,

19   “the defending officer need only show ‘arguable’ probable

20   cause” to be entitled to qualified immunity.     Martinez v.

21   Simonetti, 202 F.3d 625, 634 (2d Cir. 2000) (quoting Lee v.

22   Sandberg, 136 F.3d 94, 103 (2d Cir. 1997)).    Dismissal is

23   therefore appropriate as long as “‘officers of reasonable
                                   3
 1   competence could disagree’ on the legality of the action at

 2   issue in its particular factual context.”      Walczyk v. Rio,

 3   496 F.3d 139, 154 (2d Cir. 2007) (quoting Malley v. Briggs,

 4   475 U.S. 335, 341 (1986)).

 5       We have reasoned that “those who are permitted to

 6   observe obvious criminal activity in a home are, absent

 7   indications to the contrary, likely to be complicit in the

 8   offense.”    United States v. Heath, 455 F.3d 52, 57 (2d Cir.

 9   2006) (emphasis added).     In Heath, we found that there was

10   probable cause for arrest where police officers found bags

11   of cocaine “in plain sight” at the bottom of the arrestee’s

12   stairwell.    Id.    Other cases cited by the district court and

13   defendants also suggest that a showing of probable cause for

14   possession of contraband necessitates more than mere co-

15   residency.    See, e.g., Torres v. Hanslmaier, No. 94 Civ.

16   4082, 1995 WL 272527, at *2 (S.D.N.Y. May 8, 1995); People

17   v. Tirado, 47 A.D.2d 193, 195-96 (1st Dep’t 1975).

18       Here, however, officers found loose, unmarked pills of

19   various colors and shapes in paper bags and unmarked pill

20   containers in the kitchen.      Officer Fusco suspected they

21   might be MDMA.      The arresting officer was not aware of a

22   field test for MDMA.      Notably, the entire search was


                                      4
 1   premised on the confirmed presence of marijuana plants at

 2   the apartment on a prior occasion, and, at the scene,

 3   officers found heroin in the bedroom.     Thus, with the

 4   “totality of the circumstances” informed by the confirmed

 5   presence of two different kinds of illegal drugs, it was

 6   reasonable for defendants to “draw [an] inference[] based on

 7   [their] own experience” that the variously shaped and

 8   colored pills in the kitchen were also illegal drugs,

 9   especially considering the manner in which they were placed

10   in unmarked containers and bags. See Ornelas v. United

11   States, 517 U.S. 690, 700-01 (1996).

12       The undisputed facts establish that plaintiffs were

13   sleeping in a small apartment in which police found drugs on

14   more than one occasion, including at the time of the arrest,

15   and that defendants found suspected MDMA in a common area of

16   that apartment.     These circumstances were arguably

17   sufficient to warrant a prudent person to believe that the

18   plaintiffs were “had knowledge of, and exercised dominion

19   and control over,” the suspected contraband, see Maryland v.

20   Pringle, 540 U.S. 366, 372 (2003), and thus to provide

21   arguable probable cause for plaintiffs’ arrest and temporary

22   imprisonment.     Defendants are therefore entitled to

23   qualified immunity.
                                     5
1       For the foregoing reasons, the judgment of the district

2   court is hereby AFFIRMED.

3
4                               FOR THE COURT:
5                               Catherine O’Hagan Wolfe, Clerk
6

7




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