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McColley v. County of Rensselaer

United States Court of Appeals, Second Circuit

January 21, 2014

Ronita McCOLLEY, Plaintiff-Counter-Claimant-Counter-Defendant-Appellee,
COUNTY OF RENSSELAER, Defendant-Cross-Claimant-Counter-Claimant-Appellant, Michael Riley, Investigator, individually and as agent, servant and/or employee of the County of Rensselaer, Defendant-Appellant.

Argued: Feb. 26, 2013.

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[Copyrighted Material Omitted]

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Crystal R. Peck, Bailey, Kelleher & Johnson, P.C., Albany, NY, for Appellants.

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Gennaro Dominick Calabrese (Terence L. Kindlon, on the brief), Kindlon Shanks & Associates, Albany, NY, for Appellee.

Before: CALABRESI, POOLER, and RAGGI, Circuit Judges.

POOLER, Circuit Judge:

The County of Rensselaer (" Rensselaer" ) and Rensselaer County Drug & Gang Task Force (" Task Force" ) Investigator, Michael Riley (" Riley" ), appeal from a judgment of the United States District Court for the Northern District of New York (Lawrence Kahn, J. ) denying summary judgment on their claims of qualified immunity for purported violations of the Fourth Amendment and state tort law based upon omissions made by Riley in the application for a search warrant of Ronita McColley's home. We conclude that disputed material factual issues underlie the district court's denial of qualified immunity, and thus dismiss the appeal for lack of jurisdiction.



Ronita McColley (" McColley" ), a mother with no criminal history or connection to criminality and an employee at the Center for Disability Services in Albany, New York, lived with her young daughter in the first floor apartment of 396 First Street in Troy, New York, since 2003. On July 3, 2008, at approximately 6:00 a.m., McColley was awoken in her home by the sound of the City of Troy Police Department Emergency Response Team (" ERT" ) knocking down her door and the explosion of a flash-bang grenade. Dressed in all black, wearing face masks, and carrying automatic weapons, the members of the ERT screamed for McColley to get on the floor, but as there was not enough space for her to lie on the floor, a member of the ERT instead shoved McColley face down onto her bed. As she had been roused from sleep, McColley was clad in only a t-shirt and underwear. She repeatedly requested to cover herself but was repeatedly denied. These events took place under the authorization of a no-knock search warrant secured by Riley on June 27, 2008.

In connection with a drug investigation in Troy, Riley submitted a search warrant application to obtain four warrants to search four residences within the city, including McColley's home. The application was based upon information received from a confidential informant (" CI" ). On June 23, 2008, this CI, who had performed four controlled buys for the Rensselaer County Drug and Gang Task Force in the past, contacted Riley, advising him that he could purchase crack-cocaine from an individual identified as " Sport." Riley and other members of the Task Force set up a controlled buy, whereby the CI purchased crack-cocaine. On June 25, 2008, the CI again contacted Riley. He told Riley that, on the previous day, he had been taken to the first floor apartment of 396 First Street— McColley's home— to purchase crack from Sport. The CI further indicated that a drug dealer he had known for years, " Stink," was also present at 396 First Street and used a King of Hearts playing card to remove cocaine from a scale. The CI also noted there was a third male that he did not know in the apartment. The initial report from the CI and the related affidavit by Riley made no mention of a woman being present in the apartment. Though the CI indicated that he purchased drugs at 396 First Street on the singular occasion he had visited, the Task Force identified the apartment as a " stash house."

In addition to the information surrounding 396 First Street, the CI told Riley about three locations in Troy that were

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maintained by Stink and Sport— each of their two residences and an apartment leased to Tanisha Bruce, who reportedly sold " approximately one hundred grams of marijuana per week" provided by Stink. The CI informed Riley that he had visited Bruce's apartment over twenty times throughout the course of the previous six months with Stink and that Stink had made drug deals on each occasion. Upon Riley asking the CI whether Stink had " custody and control" of the apartment at 396 First Street, the CI responded, " Yes." The CI apparently did not describe the facts from which he was able to come to this conclusion based on only one visit to 396 First Street, merely indicating that as to 396 First Street, Bruce's apartment, and Stink's own apartment, Stink " comes and goes as he pleases."

On the same day, Riley conducted drive-bys of each of the four locations in order to have the CI identify them. After the CI had identified 396 First Street, Riley and his supervisor, Investigator Arthur Hyde, directed undercover officers in both stationary and drive-by surveillance on the apartment. No narcotics or other criminal activity was witnessed during the surveillance. Because the residences were located in a high crime area, the stationary surveillance was not conducted for extended periods of time. Following the identification of 396 First Street and prior to his application for a search warrant, utilizing a Lexis Nexis search and then running a criminal background check, Riley determined that McColley was the resident at that address, that she had no criminal history, and that she had a young child.

On June 27, 2008, Riley submitted an application for a search warrant for 396 First Street to Judge Turner of the City of Troy Criminal Court. The same affidavit was offered in support of search warrants for each of the locations identified by the CI. Riley identified the information provided by the CI as the basis for the application. Riley stated that the CI had previously given information that proved to be " both accurate and reliable" and which " led to five previous drug purchases and two search warrants, which resulted in the seizure of illegal drugs and contraband." [1] The warrant application recounted the CI's description of his interaction with Stink and Sport in the apartment. The affidavit also recounted the details relating to Bruce's apartment, including that the CI had visited the apartment between twenty and thirty times over the preceding six-month period and that Stink or Sport made drug deals on each occasion. For each of the search locations with the exception of McColley's home, Riley identified the resident individual and described his or her ties to drug dealing and criminality. Riley never mentioned McColley's identity, lack of criminal history, or even the fact that there was a resident who lived at 396 First Street— as opposed to the apartment being a location exclusively used by Stink in his drug dealing enterprise. In the warrant application, Riley also made no mention of the fact that surveillance had been conducted and yielded no evidence or even suspicion of narcotics or other criminal activity.

The search of McColley's home did not uncover any money, weapons, drugs, drug-related paraphernalia, or any evidence of criminality of any kind. The ERT took only a National Grid electric and gas bill and a registration bill for Hudson Valley Community College as fruits of the search.

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After McColley filed the instant action, Defendants moved for summary judgment on all counts. The district court granted summary judgment in part and denied it in part. The court denied summary judgment to Riley on McColley's Fourth Amendment claim, determining that material questions of fact prevented a finding of qualified immunity. The district court also denied summary judgment on McColley's related state tort claims as the viability of those claims rested on the determination as to probable cause, which the court already determined was subject to material questions of fact. Rensselaer and Riley now appeal the denial of the claim of qualified immunity.



" Ordinarily, orders denying summary judgment do not qualify as ‘ final decisions' subject to appeal." Ortiz v. Jordan, __ U.S. __, 131 S.Ct. 884, 891, 178 L.Ed.2d 703 (2011). There exists a " limited exception to the categorization of summary judgment denials as nonappealable orders," id., for a " denial of a claim of qualified immunity, to the extent that it turns on an issue of law," Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). This Court may " exercise interlocutory jurisdiction if the defendant contests the existence of a dispute or the materiality thereof, or ... contends that he is entitled to qualified immunity even under plaintiff's version of the facts." Tierney v. Davidson, 133 F.3d 189, 194 (2d Cir.1998). Such a denial of qualified immunity is reviewed by this Court to determine whether " the qualified immunity defense may be established as a matter of law." Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir.2004) (internal quotation marks omitted). This " review extends to whether a given factual dispute is ‘ material’ for summary judgment purposes, ... not ... whether a dispute of fact identified by the district court is ‘ genuine.’ " Id.

The district court determined that there were genuine issues of material fact that prevented a finding of qualified immunity with respect to Riley's submission of the warrant application. Because the district court determined that Riley made material omissions from the search warrant affidavit such that there was an issue of fact as to whether there was probable cause for the warrant to issue, it also found the same with respect to qualified immunity. While appellate courts cannot generally review denials of summary judgment,

an interlocutory appeal is available " to challenge the trial judge's rejection of the immunity defense where the defendant contends that on stipulated facts, or on the facts that the plaintiff alleges are true, or on the facts favorable to the plaintiff that the trial judge concluded the jury might find, the immunity defense is established as a matter of law because ... it was objectively reasonable for him to believe that his action did not violate clearly established law."

Tierney, 133 F.3d at 194 (quoting Salim v. Proulx, 93 F.3d 86, 90-91 (2d Cir.1996)). Jurisdiction may exist " where the lower court rules that material disputes of fact preclude summary judgment on qualified immunity," when a defendant contests the materiality of the disputed facts or argues " he is entitled to qualified immunity even under the plaintiff's version of the facts." Id.

In the instant case, Appellants contend that, accepting McColley's version of the facts, Riley is entitled to qualified immunity because the omissions he made from the search warrant application did not alter

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the probable cause analysis as a matter of law. In order to determine whether this Court has jurisdiction, we must look to whether, as a matter of law, Riley's actions— as viewed through the facts taken in a light most favorable to McColley— amount to a constitutional violation. If there is a question as to whether under these facts, Riley's omissions amounted to a constitutional violation, then this Court does not have jurisdiction because the denial of qualified immunity rested upon factual issues.


A plaintiff can demonstrate that her right not to be searched absent a search warrant supported by probable cause " was violated where the officer submitting the probable cause affidavit ‘ knowingly and intentionally, or with reckless disregard for the truth, made a false statement in his affidavit’ or omitted material information, and that such false or omitted information was ‘ necessary to the finding of probable cause.’ " Soares v. Connecticut, 8 F.3d 917, 920 (2d Cir.1993) (quoting Golino v. City of New Haven, 950 F.2d 864, 870 (2d Cir.1991)). Recklessness is inferred when the omitted information was " clearly critical" to the determination of probable cause. Rivera v. United States, 928 F.2d 592, 604 (2d Cir.1991) (internal quotation marks omitted). " The materiality of a misrepresentation or an omission in this context is a mixed question of law and fact. The legal component depends on whether the information is relevant to the probable cause determination under controlling substantive law. But the weight that a neutral magistrate would likely have given such information is a question for the finder of fact, so that summary judgment is inappropriate in doubtful cases." Velardi v. Walsh, 40 F.3d 569, 574 (2d Cir.1994) (citations omitted). In determining whether omitted information was necessary to the finding of probable cause, " we look to the hypothetical contents of a ‘ corrected’ application to determine whether a proper warrant application, based on existing facts known to the applicant, would still have been sufficient to support arguable probable cause to make the arrest as a matter of law." Escalera, 361 F.3d at 743-44. In performing the " corrected affidavit" analysis, " we examine all of the information the officers possessed when they applied for the arrest warrant." Id. at 744 (citing Martinez v. City of Schenectady, 115 F.3d 111, 115 (2d Cir.1997)). While " the law does not demand that an officer applying for a warrant ‘ volunteer every fact that arguably cuts against the existence of probable cause,’ " he must " ‘ not omit circumstances that are critical’ to its evaluation." Walczyk v. Rio, 496 F.3d 139, 161 (2d Cir.2007).

When making a determination of whether probable cause exists to support the issuance of a search warrant when the facts offered are based upon information from a confidential informant, this Court examines the " totality of the circumstances." United States v. Smith, 9 F.3d 1007, 1012 (2d Cir.1993) (internal quotation marks omitted). " In performing this examination of the ‘ totality of the circumstances' ... the court may consider ... ‘ an informant's veracity, reliability and basis of knowledge,’ and the extent to which an informant's statements ... are independently corroborated." United States v. Gagnon, 373 F.3d 230, 235 (2d Cir.2004) (internal citations omitted). These considerations, however, are not an exhaustive listing of what constitutes the " totality of the circumstances." Smith, 9 F.3d at 1012 (emphasis added).


The district court determined that two material omissions from the warrant

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application— the identity of McColley as the resident of 396 First Street and the fact that both stationary and drive— by surveillance had not led to the observation of any criminal activity— undermined the finding of probable cause. Thus, the court denied qualified immunity with respect to McColley's Fourth Amendment claim against Riley and the state tort claims against Riley and Rensselaer.[2] This Court thus considers a " corrected affidavit" that would include these omitted facts in analyzing whether there was probable cause for the warrant to issue. Escalera, 361 F.3d at 743-44.

We begin by noting that where a warrant affidavit is based upon information provided by a confidential informant, any omissions become all the more glaring because any material omission necessarily alters the " totality of the circumstances" upon which the confidential information is to be assessed. Each omitted fact necessarily alters this totality because such review demands that courts consider the whole picture and not just the particular facts favored by the officer applying for the warrant. In the face of information that is provided by a confidential informant, each individual fact that composes the totality of the circumstances is all the more likely to be " critical" to the evaluation of probable cause. Walczyk, 496 F.3d at 161.

While it is indeed the case that where a warrant " does not report a prior conviction for a particular crime, the magistrate assumes for purposes of determining whether the government has carried its burden that no such conviction exists," Walczyk, 496 F.3d at 161, the pertinent omission here was not merely McColley's lack of criminal history. Rather, McColley herself was omitted entirely from the application. The issuing judge did not have the benefit of assuming that " no such conviction exist[ed]" because he was not informed that anyone other than Stink, who was the identified target of the drug investigation, resided in or maintained the first floor apartment at 396 First Street. Riley, on the other hand, fully knew that McColley, an individual with no criminal history and no purported ties to the targets of the drug investigation, lived there with her child. Especially in the face of Riley's inclusion of the identity of the residents for each of the other apartments and their present connection to the drug trade, the omission of McColley's existence is all the more glaring. As drafted by Riley, with no mention of McColley, the warrant application makes it appear to the issuing magistrate that Stink was the only individual with custody and control of 396 First Street. If the residents of 396 First Street were properly identified, a reasonable issuing judge would have questioned the assertion that Stink had " custody and control" over the apartment. Unlike

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Bruce's apartment, there was no similar claim of repeated visits at 396 First Street from which knowledge of such custody could have been inferred. Including McColley's identity in the affidavit and attendant lack of connection to Stink, Sport, Bruce, and their drug trade— either explicitly or implicitly by not describing any such history or connection— could indeed have altered an issuing magistrate's assessment of the totality of the circumstances with respect to the CI's information about 396 First Street. The exact weight that the judge would have given this information remains a question of fact that prevents this Court from exercising jurisdiction over the district court's denial of summary judgment on the claim of qualified immunity. Velardi, 40 F.3d at 574.

The other material omission from the warrant application made by Riley was that the police conducted both stationary and drive-by surveillance on 396 First Street and observed no criminal activity. As courts have recognized that independent corroboration is an aspect of the totality of the circumstances from which the credibility of a confidential informant can be assessed, Gagnon, 373 F.3d at 235, so too is information that expressly fails to corroborate a confidential informant's account. While the police may not have been required to corroborate the CI's assertions, once they undertook this surveillance and observed no such criminal activity, this lack of corroboration should have been included in the warrant application. The materiality of this information is underscored by the common-sense observation that if the surveillance had yielded evidence of criminality, that information certainly would have been included in the warrant application and deemed to have been damning. The mere fact that the outcome of the surveillance was not the one the police would have preferred does not render the information immaterial.

The omission of this fact was not a failure to provide unnecessary corroboration; it was a failure to provide known information that goes directly to the credibility of the CI. A confidential informant's credibility is plainly relevant— even critical— to the probable cause determination, and thus the fact that surveillance provided no evidence or even suggestion of criminal activity should have been included in the warrant affidavit. Just as with the omission of McColley's identity, the omission of the unsuccessful surveillance altered the " totality of the circumstances" under which the information provided by the CI should have been assessed. And just as with the omission of McColley's identity, the weight that an issuing magistrate would have given to this information is a question for the finder of fact. Velardi, 40 F.3d at 574.

The dissent's insistence on the existence of arguable probable cause does not alter our analysis. Arguable probable cause, a doctrine imported into this Circuit's corrected affidavit jurisprudence in Escalera, 361 F.3d at 744; see also Opinion of Calabresi, J. at [829-30], exists if " (a) it was objectively reasonable for the officer to believe that probable cause existed, or (b) officers of reasonable competence could disagree on whether the probable cause test was met." Escalera, 361 F.3d at 743 (internal quotation marks omitted). The dissent conflates the questions of facts regarding the CI's credibility with that of whether reasonable officers could disagree as to the existence of probable cause. Questions of fact exist in this case with respect to the reliability of the CI's information regarding 396 First Street. Whether reasonable officers would disagree on whether there was probable cause is equally dependent on the questions of fact previously identified. If

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the CI's information regarding McColley's home was not reliable, then reasonable officers would not disagree as to the lack of probable cause. The dissent would have the doctrine of arguable probable cause swallow the entire rule of qualified immunity as well as the related limitation on our jurisdiction. This cannot be.

The information omitted from the warrant application was indeed " necessary to the finding of probable cause" because both McColley's identity and the lack of criminal activity observed at her home go directly to the " totality of circumstances" review that underlies the assessment of probable cause based upon information provided by confidential informants. The Appellants would have this Court conclude that once information has been provided by a confidential informant who has proven reliable in the past, a warrant is necessarily supported by probable cause when based upon information from that confidential informant. This view misapprehends the " totality of circumstances" test— in assessing whether there is probable cause based upon a confidential informant's reports, courts must look to all of the circumstances bearing upon the information's reliability. Smith, 9 F.3d at 1012.

In this case, McColley's identity, the fact that the CI did not report that a woman was present in the apartment,[3] and the fact that attempts at independent corroboration via surveillance showed no sign of criminal activity are all omissions that bear upon the reliability of the overall information provided. While we share the concerns raised in the concurrence with respect to the particularly intrusive method of entry used in this case, see Opinion of Calabresi, J. at [832], issues of fact underlie the weight that the issuing judge would have given the omitted information regardless of the method of entry employed. As such, this case lies outside of the jurisdiction of this Court to perform interlocutory review of the denial of summary judgment. The issue of qualified immunity, including the question of reasonableness as to the type of warrant sought and used, is not properly before us at this stage of the proceedings.


For all of the reasons discussed above, the appeal is dismissed for a lack of jurisdiction.

CALABRESI, Circuit Judge:

Despite the fact that they reach opposite conclusions, my colleagues' opinions both find strong support in our Court's case law. This is because our precedents in this area are as divided as our panel.

Judge Pooler would send this case to a jury, having identified a question of fact: the weight a neutral magistrate would give to evidence omitted from Investigator Michael Riley's warrant affidavit. The existence of such a fact question strips us of jurisdiction over this interlocutory appeal.

Judge Raggi would instead dismiss Plaintiff Ronita McColley's Fourth Amendment claim against Riley. She would do so either because an affidavit, even without

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the omissions, would still have established probable cause for the search of McColley's home, or, alternatively, because some reasonable people might find that such probable cause would have been established. This would, in turn, suffice to give rise to " arguable probable cause," which, she asserts, would result in qualified immunity for Riley. This latter scenario, in which some would and others would not find probable cause on the basis of the corrected affidavit, is, of course, precisely what Judge Pooler describes as a factual dispute about the weight of the omitted evidence. But while Judge Pooler concludes that such a dispute strips us of jurisdiction, Judge Raggi sees it as a basis for granting Riley qualified immunity as a matter of law.

I write separately in part to underscore the divided precedents that give rise to this dispute. I also write, however, because I believe that the particular question to be asked in the case before us is not simply whether the warrant would have been issued, but rather whether the magistrate would have issued the precise kind of warrant Riley sought and obtained: namely, a " no-knock" warrant to be executed at any time of the day or night.[1] The question we must ask, in other words, is not just whether the facts known to Riley established probable cause to search for drugs at 396 First Street. The determinative question in the instant case is whether those facts gave rise to a reasonable suspicion that a normal, " knock-and-announce" search of McColley's home would have been dangerous or futile, see Richards v. Wisconsin, 520 U.S. 385, 394, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997), and hence that a no-knock intrusion— which allowed police to throw a stun grenade through an apartment window, break down its door, and burst in with automatic weapons drawn— was justified in an apartment where a woman and child with no criminal history lived and where no ongoing criminal activity had been observed.

It may well be the case that, as a matter of law, the no-knock warrant Riley sought would not have issued had Riley shared all the relevant information that he knew. I am inclined to think so. But I need not go that far, however, as I conclude that there is, manifestly, at least a question of fact as to whether such a warrant would have issued. This is so because there is, at most, conflicting evidence as to whether the officers had information that the suspects were armed. Since a question of fact exists, I join Judge Pooler's judgment that we lack jurisdiction to hear this qualified immunity appeal. In other words: because the issue of whether a warrant for an unannounced invasion of McColley's apartment would have issued had Riley provided in his warrant affidavit all the information he had requires the resolution of factual questions, I join Judge Pooler in concluding we do not have jurisdiction, and that this case ought to be returned to the district court for a jury trial.


The issue this case presents is whether a police officer should be held liable for obtaining a warrant based on an affidavit that lacked relevant information known to

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the officer.[2] All of us agree that, to answer this question, we are to imagine a corrected affidavit which included the omitted facts and then consider whether, on the basis of such an affidavit, a magistrate would still have issued the warrant. Where my colleagues— and previous panels of this Court— part ways is on the question of whether this can be determined as a matter of law, or whether the weight a magistrate would have given the omitted information is instead a question of fact which must be ...

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