We often come across cases in which the client was “in the wrong place at the wrong time”. Perhaps the most glaring example of poor timing is being present in a location when the police issue a search warrant looking for contraband. Assuming the warrant was not fraudulently obtained, the court has sanctioned the search. If the police find contraband while your client is standing there, he will likely be arrested. But is mere presence sufficient probable cause to justify the arrest in such circumstances? And, if not, does your client have a viable false arrest claim? Often, the answer will turn on specific facts, the foremost being whether the location is open to the public or private.
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 (4th 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.
