The threshold issue in any claim of false arrest, is whether the arresting officers had probable cause to arrest the Plaintiff.  That is, a person’s confinement is otherwise “privileged” when probable cause exists to arrest him. Covington v. City of New York, 171 F.3d 117, 122 (2d Cir. 1999).  The defendant bears the burden of demonstrating that the arrest was justified based upon probable cause.  Raysor v. Port Authority of New York & New Jersey, 768 F.2d 34 (2d Cir. 1985).  To meet this burden, however, the defendant must demonstrate evidence which amounts to “more than a rumor, suspicion, or even a strong reason to suspect.”  United States v. Fisher, 702 F.2d 372, 375 (2d Cir. 1983) [emphasis added].  Moreover, the evidence of guilt must be particularized to the individual being arrested.  See, e.g., Ybarra v. Illinois, 444 U.S. 85, 91 (1979).

 The fact that a client was arrested pursuant to the execution of a search warrant is not determinative on the issue of probable cause.  Barr v. County of Albany, 50 N.Y.2d 247, 255 (1980) (“while it can be said that a search warrant sanctions the entrance by law enforcement officers upon private property to conduct a search within the confines of the warrant, it by no means lends judicial approval to the arrests of those persons found thereon”).  That is, a search warrant does not authorize an arrest.  Id.  In Barr, the police executed a search warrant of a premise and arrested virtually all fifty persons present for marijuana possession.  The charges were dismissed against plaintiffs and they brought  subsequent claims for false arrest.  The court denied defendant’s motions for summary judgment holding that the search warrant did not immunize the officers for liability for false arrest.  Id.

 In Ybarra v Illinois, 444 U.S. at 85, the police obtained a warrant to search a tavern where the bartender was suspected of drug activity.  While executing the warrant, the police conducted pat-down searches of the tavern patrons, including Ybarra.  The police found drugs on Ybarra and arrested him.  The Court held that a “person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person.” Id. at 91; citing, Sibron v. New York, 392 U.S. 40, 62-63 (1968) [emphasis added]. 

 Likewise, in Flores v. City of Mount Vernon, the police officers executed a search warrant at a bar where the tavern owner was reportedly selling drugs.  41 F. Supp 439 (S.D.N.Y. 1999).  The police found certain patrons in possession of cocaine at the tavern.  One of these patrons was seen picking up a packet of what appeared to be cocaine from the bar.  The officers observed another patron dropping a packet of cocaine on the floor.  More cocaine and marijuana was found hidden in the basement of the establishment.  In addition to the patrons, the police arrested the bartender, Flores, who was present and working at the time the warrant was executed.  Ultimately, Ms. Flores was not charged and brought a claim of false arrest against the officers and municipality.  The Court found that the fact that half the patrons in the bar possessed cocaine did “not give rise to a reasonable suspicion that [Flores] was involved in drug activity, let alone rise to the level of probable cause”.  Id. at 443 [emphasis added].  Further, the fact that patrons dropped narcotics to the floor in plain view did “not admit the inference” that they obtained them from plaintiff. Id. at 444. 

 In Flores, the arrest occurred in a public forum.  What if your client was arrested in a private residence?  Assume your client was an invited guest watching television when the police executed a search warrant targeting the owner of the apartment.  The drugs found in the apartment were not in plain view and were not in proximity to your client.  Your client was not a resident of the apartment and there was nothing connecting him to the apartment.  Nor was there anything about his conduct which indicated a common scheme with the other occupants of the apartment. There is an argument to be made that the circumstances of Flores (cocaine literally flying in the air in the proximity of claimant) were far more egregious than those described above.      

 Pursuant to applicable New York search and seizure law, one may argue there was no probable cause for the police officers to arrest your client.  It is not alleged that your client directly possessed drugs.  The only remaining means to assert his “possession” are (i) the application of a “room presumption”; or (ii) the theory that he “constructively” possessed the drugs.  Since the alleged contraband was not in “plain view” the police were not permitted to arrest all the occupants based upon a permissive “room presumption”.  See, N.Y. Pen. L. 220.25(2) (the presence of a narcotic drug in “open view in a room other than a public place . . . is presumptive evidence of knowing possession thereof by each and every person in close proximity” to the drugs) [emphasis added]; see, e.g., People v. Martinez, 83 N.Y.2d 26 (1993) (drugs concealed between a couch and a wall are not in plain view).  Furthermore, it can not reasonably be argued that your client “constructively possessed” the drugs hidden in the apartment.  To demonstrate constructive possession it must be shown that a person exercised “dominion or control” over the property by a sufficient level of control over the area in which the contraband is found.  See, e.g., People v. Manini, 79 N.Y.2d 561 (1992).  There is no evidence that your client resided in the location; had keys to the location; or had any personal property in the location.  Further, since the evidence will likely show that other persons had access to the location and the drugs were hidden, a viable theory of constructive possession will not stand.  People v. Vasquez, 160 A.D.2d 751 (2d Dept. 1990) (constructive possession not established where defendant was watching television in the living room of an apartment where 4 ounces of cocaine and $150,000 in cash were discovered in a bedroom pursuant to a search warrant, despite the defendant having a loose key to the apartment in her possession); People v. Webb, 179 A.D.2d 707 (2d Dept. 1992); People v. Bailey, 159 A.D.2d 1009 (4^th Dept. 1990). 

 Based upon the foregoing, one can certainly make a viable argument that the search warrant and discovery of contraband does not confer probable cause to arrest a visitor on the circumstances described.  Still, it may not be a winning argument and one will find far stronger footing in a False Arrest claim if the “unlawful” arrest took place in a public, rather than private, forum.

QUEENS, NY (WABC News) — A Queens teacher is under arrest Wednesday, accused of sexually abusing a student.

Queens District Attorney Richard Brown says a 48-year-old teacher at a Springfield Gardens middle school, abused a 14-year-old boy in a classroom after school hours.

“The charges are very disturbing,” Brown said. “A classroom should always be a safe place for a child. If true, this teacher destroyed his student’s trust.”

The teacher, of the Hollis section of Queens, was employed as a teacher at Intermediate School. He was suspended during the pendency of the criminal case.

MSG Result: On June 23, 2009, after a two week trial, the teacher was acquitted of all criminal charges.

Attorney for the defense: Matthew D. Myers

He was more Gargamel than Papa Smurf.

The man who helped bring the Smurfs to America was busted yesterday for allegedly trying to shake down his son-in-law – a deep-pocketed executive at a top private equity firm – for $11 million, authorities said.

Stuart Ross, 71, of Aventura, Fla., was charged with unleashing a campaign of harassment against his son-in-law David Blitzer, a senior managing director at the Blackstone Group, the Manhattan District Attorney’s Office announced.

Ross’s 79-year-old New York attorney, Stuart Jackson, was also charged with attempted grand larceny for his role in the scheme. Both face up to seven years in prison.

Ross was traveling in Belgium in 1976 when he discovered the popular French-language European cartoon known as “Les Schtroumpfs” and decided it could become big in America.

He bought North American rights to the tiny characters with blue skin and white caps, who live in mushrooms and battle the evil wizard Gargamel. Renamed Smurfs for a US audience, they became hugely popular as dolls and an animated early ’80s Hanna-Barbera TV show.

Ross was also producer of a 1983 movie, “The Smurfs and the Magic Flute.” But over the years, Ross lost his cartoon fortune.

Ross – whose daughter Allison is Blitzer’s wife – had long been estranged from the family after telling her he wished her unborn child would die and that obscenities should be carved on her gravestone, according to a civil lawsuit Blitzer filed separately.

Ross had also walked off with $195,000 Blitzer gave him to start an Internet business, the suit said. Ross then disappeared from the couple’s lives for many years.

In December 2007, Ross called Blitzer and got the son-in-law to give him $65,000 for seed money to start a business venture.

Then in June, Ross allegedly began bombarding Blitzer with nonstop phone calls and e-mails demanding more cash and threatening to damage his reputation and ruin his career. He also started calling Blitzer’s bosses at Blackstone in a bid to discredit him.

“David, this is your worst nightmare,” he said in one call, according to the civil suit. “I’m going to continue to harass you. I am going to call you every day – four or five times a day – I am going to keep calling.”

On Thursday, Blitzer met with Jackson and Ross and agreed to give them $400,000. The two men were arrested yesterday.

lukas.alpert@nypost.com

Source: New York Post – August 23, 2008

Attorney for the defense: Matthew D. Myers

Pro Boxer Edgar Santana Busted As Part Of Alleged Major Cocaine Ring

By Teri Thompson, Michael O’Keeffe And Nathaniel Vinton
Daily News Sports Writers

Updated Friday, July 18th 2008, 4:58 PM
(Originally published on July 18 at 10:12 a.m.)

Edgar Santana, the junior welterweight boxer often billed as “The Pride of Spanish Harlem,” was arrested Friday as part of an alleged international cocaine distribution ring busted by the New York Office of the Special Narcotics Prosecutor and the New York Office of the DEA.

Santana, 29, was picked up at his home at the George Washington Carver Houses on 102nd St. in Spanish Harlem in the early morning hours Friday. Friends and acquaintances were stunned.

“Everybody has been blindsided by this whole thing because it’s just not something that you would think Edgar could be involved in,” said Ernesto Dallas, Santana’s manager for the last six years.

Santana and seven other alleged co-conspirators were led out of a DEA office building in lower Manhattan Friday just after noon and taken to New York State Supreme Court. They are expected to be arraigned on Monday on second-degree criminal conspiracy and first-degree criminal sale of a controlled substance.

His arms handcuffed behind him, a grim Santana, who is scheduled to fight in an ESPN-televised match on Aug. 6, said nothing as DEA agents led him to a waiting car. On his black T-shirt was the following slogan in yellow letters: “The pressure of survival in the big city will make you lose sight of your dream…hang in there – de la Vega.”

James de la Vega, the Spanish Harlem artist who designed the T-shirt, was shocked by the news. “He’s a huge symbol of pride in Spanish Harlem,” de la Vega told the Daily News. “I’ve walked down the streets with him in the neighborhood and people love him everywhere. … He’s a friend of mine. We have a lot of love and respect for him here.”

The investigation, known as “Operation Special Delivery,” was the result of a cooperative effort by the Special Narcotics Prosecutor, in conjunction with the DEA and the the New York Organized Crime Drug Enforcement Strike Force, which is composed of agents from the NYPD, the IRS, the Homeland Security and the FBI, among other agencies.

Agents arrested 12 individuals and recovered $450,000 and at least a kilogram of cocaine in the one-year investigation into a plot to mail cocaine from Santana’s native Puerto Rico to addresses in Manhattan and the Bronx, according to the DEA.

Santana, according to investigators, brokered a deal on behalf of ringleader Angel Colon, and is accused of selling a kilogram of cocaine. Because the case originated with the Special Narcotics Prosecutor’s office, it will be prosecuted in New York state court.

“This organization abused the U.S. Postal Service and used packages to smuggle illicit goods into our country,” said New York DEA special agent in charge, John P. Gilbride. “This shows the lengths drug distribution organizations will go to achieve their goal, but they will not be successful, and will face the consequences of their actions as today’s arrests demonstrate.”

A headline attraction in promoter Lou DiBella’s Broadway Boxing Series, Santana was out of boxing briefly, working as a barber in Spanish Harlem, before making a comeback.

Santana, whose record is 24-3 with 15 knockouts, last fought in April, when he won a 10-round decision over Josesito Lopez in Miami on April 11.

Contacted by the Daily News Friday, DiBella was shocked that Santana had been arrested.

“This is completely out of character for him. He was close to everybody in our office,” the promoter said. “My staff is sick about this. He was just talking about opening a barbershop. I’m hoping this is a mistake. But obviously if he’s done something against the law, he’s going to have to pay,” DiBella said.

Santana began his career in a gym in Spanish Harlem and then moved to the reknowned Gleason’s Gym in Brooklyn, where he worked with Hector Rocca, who helped train Hilary Swank in Clint Eastwood’s Academy Award-winning drama “Million Dollar Baby.”

Dallas, Santana’s current trainer, was with Santana the night before the arrest and said there was nothing in the young boxer’s demeanor to suggest trouble on the horizon.

“In our conversations there were only two things on his mind lately and that was continuing to move up in boxing and getting his barbershop started,” Dallas said. “We were looking at the lease for a place for the barbershop and working out the final plans for the place. He was getting that off the ground. I was with him until 8:30 last night and there was nothing in his demeanor that would indicate anything like this was happening.”

In a 2005 interview for the boxing Web site Doghouse Boxing, Santana talked about what a blessing it was to find boxing as a youngster growing up in dangerous circumstances.

“When I started boxing, I went with seven of my friends to Mickey Rosario’s gym in Spanish Harlem,” Santana recalled. “I remember he told us, out of all seven of us, only one or two of us were going to make it. He said the rest would go into a life of drugs or end up getting killed.

“Looking back, I’m the only one left. Everyone else is either in jail or is getting killed.”

Source: New York Daily News

Attorney for the defense: Matthew D. Myers

NEW YORK – A federal immigration official who was recorded demanding sex from a young Colombian woman in exchange for a green card was arrested on corruption charges, prosecutors said Friday.

The woman, who is married to an American citizen, said she gave in to one demand for oral sex because she was afraid, but she also used a mobile phone hidden in her purse to record the December encounter and the conversation that preceded it.

Days later she went to a The New York Times to tell her story. She also called the district attorney’s office.

“I want sex,” he said on the recording, according to the Times. “One or two times. That’s all. You get your green card. You won’t have to see me anymore.”

Queens prosecutors said Isaac R. Baichu, an adjudication officer at the U.S. Citizenship and Immigration Services office in Garden City, threatened to hold up the woman’s application and even deport her relatives if she didn’t acquiesce.

Baichu was arrested March 11 after meeting with the woman again, this time with prosecutors listening in.

His attorney did not immediately return phone messages Friday.

Baichu faces misdemeanor charges of coercion and sexual misconduct and a felony charge of receiving a reward for official misconduct. A judge released him on a $15,000 bond.

Baichu was suspended immediately after his arrest, and his pay will be halted, Citizenship and Immigration spokesman Shawn Saucier said. Baichu was hired three years ago and made about $50,000 annually.

Two Arrested In Drugs And Guns Scheme

By Christopher Flaherty
Special to The Sun – March 22, 2007

City Law Enforcement Officials arrested two men charged with running a criminal network that used drug profits to purchase and sell guns on the streets on New York.

In the scheme, three suspects, Peguy Desir, 27, Joshua Pierre, 30, and a man yet to be apprehended who is knows as “Big Man” purchased drugs in the city and sold them for large profits in the South, the officials said. They would then purchase guns in Southern states and resell them for higher prices in New York, the Manhattan District Attorney, Robert Morganthau, said at a press conference yesterday.

Some of the guns were bought at pawnshops in Virginia, the police commissioner, Raymond Kelly, said.

Mr. Morgenthau said the suspects were arrested on Tuesday evening at 182 South St. after a sting operation conducted by a joint task force from the Manhattan district attorney’s office and the police department’s Firearm Investigation Unit.

During the investigation, which commenced in January 2006, officials confiscated 83 guns and large quantities of crack, heroin, and marijuana, Mr. Morgenthau said.

Using cell phones, the suspects would send the undercover officials digital pictures of the weapons. Many of the investigators said that it was the first time they had seen illegal gun vendors use digital photography.

“It was part of merchandising the weapons — a new high-tech phase of weapon sales,” the chief assistant district attorney for Manhattan, James Kindler, said.

The suspects sold the guns to the undercover operatives for about $840 each, the chief of the police department’s Organized Crime Control Bureau, Anthony Izzo, said. Illegal gun vendors resell out-of-state guns in the city for about two times the purchase price, Mr. Kelly said.

Elected officials in many of the Southern states find it difficult to restrict gun sales, Mr. Kelly said, because of pressure from the National Rifle Association.

It is believed that the guns confiscated by undercover officers represent only a fraction of the weapons sold by the suspects on the city’s streets, he said.

Source: The New York Sun – March 22,2007

Attorney for the defense: Matthew D. Myers