Switch to ADA Accessible Theme
Close Menu
Leandros A. Vrionedes, P.C.
"Quality Service With
My Personal Attention"
For a Free Consultation Call Now 1-800-634-8144
Your Injury May Entitle You to a Large Monetary Award
No Fees Unless We Obtain a Settlement or Verdict on Your Behalf
Call Today to Schedule a Free Confidential Consultation

Bronx County Court Rules on Probable Cause Issues in Arrestee’s Civil Rights Claims

NYPD officer's shoulder showing logo with blurred background

An arrest and imprisonment committed without a warrant is presumed to be unlawful, and a person so arrested may have a civil case for false imprisonment. However, law enforcement can overcome the presumption that a warrantless arrest was unlawful by showing that they had probable cause to arrest. As a recent case in the Bronx County Supreme Court illustrates, some issues of probable cause are better left for a jury to decide.

Facts of the Case

Frank Perciaccanto was arrested in an undercover buy and bust operation and charged with possession of a controlled substance. The officers who arrested Perciaccanto did not witness the sale but were given his description by another officer who actually made the sale. Perciaccanto was eventually exonerated on the grounds that the police officers mistakenly arrested him based on the description given by the undercover officer. He sued the City of New York and the officer who arrested him on a number of grounds, including false arrest, false imprisonment, excessive force, malicious prosecution, abuse of process, and negligent hiring, retention and training of a detective. The Bronx County court recently addressed these claims in light of the defendants’ motions for summary judgment in the case of Perciaccanto v. City of New York.

Some Motions Granted, Others Denied

The defendants moved for summary judgement in their favor or to dismiss the claims against them. For summary judgment, the defendants must show that they are entitled to judgment as a matter of law, so there is no need to have the issues decided in a jury trial. The basis for the defendants’ motions was that they had probable cause to arrest Perciaccanto, so all of his claims should fall by the wayside. In opposing the motion, the plaintiff pointed out that he hadn’t committed any crime, and that he has at least raised questions of fact on the issue of probable cause that should be heard by a jury and not decided summarily by the judge without a hearing.

Regarding the false arrest and false imprisonment claims, the judge declined to decide the issues on summary judgment. Ironically, all of the evidence the defendants presented to show there was probable cause really only served to raise questions of fact in the judge’s mind about whether probable cause actually existed or not. Such questions should be decided by a jury at trial and not by the judge in a motion hearing.

The plaintiff also claimed Excessive Force was used during his arrest, and that the strip search and cavity search conducted on him constituted a Battery. A strip search cannot be conducted as a routine matter just because someone has been arrested. The police need to have reasonable suspicion that the arrestee is concealing evidence under his clothing. In order to conduct a body cavity search, the police need to have a specific, articulable factual basis supporting their reasonable suspicion. In general, police need a warrant to conduct a cavity search unless it is an emergency situation that cannot wait for a warrant. Here again, since the police failed to establish that they had probable cause to arrest, they have not shown they had cause to conduct a strip or cavity search incident to the arrest. The defendants’ motions were again denied.

Some of the defendants’ motions to dismiss were granted. For instance, the plaintiff claimed Assault and Battery and Excessive Force based on being handcuffed too tightly. These claims were decided in favor of the defendants by the judge, who held that there was no injury or legal violation as a matter of law. Similarly, the judge decided in favor of the defendants on the plaintiff’s claims of Malicious Prosecution or Abuse of Process. These claims require showing that some legal process was instituted with the intent to harm the person without excuse and was then perverted to obtain some collateral advantage; there must also be some interference with the plaintiff’s person or property. The defendants here were only involved in the plaintiff’s arrest and not his subsequent prosecution, so there was no abuse of process claim. Also, the plaintiff’s Negligence claim was dismissed, with the judge finding there was no such of action under the facts of this case.

Facebook Twitter LinkedIn
Designed and Powered by NextClient

© 2023 - 2024 Leandros A. Vrionedes, P.C. All rights reserved.
Custom WebShop™ website design by NextClient.com.