Alexander v. City of Syracuse

132 F.4th 129

• Court: Court of Appeals for the Second Circuit
• Decided: March 14, 2025
• Docket: 21-3075
• Status: Published

Opinion

21-3075(L) Alexander v. City of Syracuse

In the United States Court of Appeals For the Second Circuit

August Term, 2023

(Argued: October 2, 2023 Decided: March 14, 2025)

Docket Nos. 21-3075(L), 22-103(C) *

TROY ALEXANDER,

Plaintiff-Appellant,

–v.–

CITY OF SYRACUSE, DETECTIVE RORY GILHOOLEY,

Defendants-Cross-Claimants-Cross-Defendants-Appellees,

COUNTY OF ONONDAGA,

Defendant-Cross-Defendant-Cross-Claimant-Appellee,

L.M.,

Defendant-Cross-Defendant. †

Before: NEWMAN, LEE, and ROBINSON, Circuit Judges.

*21-3075 (L) was determined by order filed March 15, 2022. † The Clerk of Court is respectfully directed to amend the official case caption as set forth above. Plaintiff-Appellant Troy Alexander appeals from a judgment of the United States District Court for the Northern District of New York (Hurd, J.) granting summary judgment to Defendants-Appellees City of Syracuse, County of Onondaga, and Detective Rory Gilhooley.

The summary judgment record, viewed in the light most favorable to Alexander, reflects that on October 24, 2016, after receiving a report of a brutal sexual assault at Alexander’s home, the Syracuse Police Department (SPD) dispatched officers to his house. There, officers pushed their way into Alexander’s home and searched and seized the residence for approximately 12.5 hours before seeking a search warrant. They also looked into the windows of, and then towed, two of Alexander’s cars. After obtaining and executing a warrant, officers discovered narcotics and drug paraphernalia in Alexander’s bedroom. The City and County then brought several waves of criminal charges against Alexander, which, respectively, charged offenses relating to burglary, narcotics, and a sexual assault. Alexander posted bail after the first two sets of charges, but was not immediately released. The same happened after he posted bail in connection with the sexual assault. Ultimately, the City and County dropped all charges.

Alexander subsequently filed this action, alleging the City, County, and Detective Gilhooley violated his rights under the U.S. Constitution and New York state law. In particular, he alleges that the warrantless entry, search, and prolonged seizure of his home violated his Fourth Amendment rights, that Detective Gilhooley violated his Fourth Amendment rights by shining a light through the windows of his parked cars, that he was falsely arrested, that he was subjected to malicious prosecution, and that he was improperly detained after posting bail. After discovery closed, the district court awarded summary judgment to the defendants on all claims. Alexander now appeals, principally arguing that the district court impermissibly credited the defendants’ version of events over his.

We agree with Alexander, but only in part. Alexander’s claims arising from the warrantless entry into and the search and seizure of his home (including his false arrest and malicious prosecution claims) present triable issues of fact. And gaps in the evidentiary record preclude summary judgment for the City and County on Alexander’s state law claims arising from his continued detention after posting bail. We therefore VACATE and REMAND the judgment as to these claims. We AFFIRM the judgment in all other respects. Judge Newman dissents from those parts of the Court’s opinion that remand for further proceedings.

TROY ALEXANDER, pro se, Syracuse, NY, for Plaintiff- Appellant.

DANIELLE R. SMITH (Danielle Pires, Sarah Mae Knickerbocker, on the brief), City of Syracuse, Department of Law, Syracuse, NY, for Defendants- Cross-Claimants-Cross-Defendants-Appellees City of Syracuse and Detective Rory Gilhooley.

ROBINSON, Circuit Judge:

On the evening of October 24, 2016, members of the Syracuse Police

Department (SPD) arrived at the home of Troy Alexander following a report that

a brutal sexual assault had taken place there the previous night. SPD officers

pushed their way into Alexander’s residence, seized it for 12.5 hours before

seeking a search warrant, and had Alexander’s cars towed. The next day, after

obtaining and executing a warrant, SPD found narcotics and drug paraphernalia

in Alexander’s bedroom. The City of Syracuse and County of Onondaga then

brought several waves of criminal charges against Alexander, which prompted

multiple arraignments and two bail postings. In the midst of these proceedings,

Alexander contends defendants improperly delayed Alexander’s pretrial release

on two occasions—for less than a day after Alexander’s first posted bail and for

3 four days after he posted bail a second time. At the end of this series of events, the

City and County dropped all of their respective charges against Alexander.

Asserting violations of his rights under the U.S. Constitution and New York

law, Alexander sued the City, County, and SPD Detective Rory Gilhooley in the

Northern District of New York. The City and Detective Gilhooley jointly filed a

motion to dismiss, which the district court (Hurd, J.) granted in part. Alexander v.

City of Syracuse, No. 5:17-cv-1195, 2018 WL 6591426 (N.D.N.Y. Dec. 13, 2018)

(Alexander I). After discovery, the City and Detective Gilhooley jointly moved for

summary judgment on the outstanding claims against them. The district court

granted their motion in full. Alexander v. City of Syracuse, 573 F. Supp. 3d 711

(N.D.N.Y. 2021) (Alexander II).

Thereafter, in a separate order, without prompting from the County, the

district court granted the County summary judgment. Alexander v. County of

Onondaga, No. 5:17-cv-1195, 2022 WL 79642 (N.D.N.Y. Jan. 6, 2022) (Alexander III).

Representing himself, Alexander now appeals. 1

On appeal, Alexander principally argues that the district court

impermissibly credited the defendants’ version of events over his. We agree with

1 From 2017 to 2020, Alexander was represented by counsel in the district court. After Alexander’s attorney was elected to a state judgeship in 2020, the district court granted Alexander’s attorney leave to withdraw. Alexander represented himself throughout the summary judgment proceedings.

4 Alexander, but only in part. Alexander raises triable issues of fact relating to the

warrantless entry into his home, the ensuing search and prolonged seizure of the

residence, and the legality of his arrest and prosecution for burglary. In addition,

factual gaps in the record preclude summary judgment for the City and County

with respect to Alexander’s state law claims based on his continued detention after

he posted bail twice. We therefore VACATE and REMAND the judgment of the

district court in part, and AFFIRM the judgment in all other respects.

BACKGROUND

I. The Facts

Because this appeal arises from the grant of summary judgment, we present

the facts in the light most favorable to Alexander, the non-movant. Murphy v.

Hughson, 82 F.4th 177, 180 (2d Cir. 2023). Accordingly, we resolve all disputed

facts and draw all reasonable inferences in his favor. Id.

A. The Search, Seizure, and Initial Charges

1. Initial Report of Sexual Assault

We start with what SPD learned before they searched and seized

Alexander’s home. On Monday, October 24, 2016, a Syracuse hospital contacted

the SPD to report that a patient, L.M., had been sexually assaulted. Two officers—

Detective Thomas Lund and Officer Dustin Kiellach—received the call at 3:59 p.m.

and went to the hospital. 5 After speaking with L.M., the officers learned that L.M. was a 19-year-old

woman who lived near Alexander’s house. They also learned that L.M.

occasionally engaged in sex work, and that she allegedly paid Alexander so she

could use one of his rooms for her escort services. L.M. also said that Alexander

sold cocaine from his home.

Although L.M. was lethargic and drowsy, she was able to relay what she

could remember from the previous day. She began by explaining that her friend,

Samantha, lived in a room at Alexander’s house. The day before, L.M. and

Samantha went to Samantha’s room to get some money. After they did so, L.M.

tried to leave the premises. However, two women—S.W. and L.B.—obstructed

her path and forced her into the basement. L.M. was then blindfolded, tied to a

bench, and had her lips superglued together. The assailants stripped L.M. naked,

burned her with cigarettes, and injected her more than ten times with what L.M.

believed to be drugs. Thereafter, an unknown man raped her.

After the attack, S.W. and L.B. cleaned L.M. and threatened her. The two

said that if L.M. spoke to the police about what happened, they would kill her.

The captors then released L.M. Other than these specifics, L.M. was unable to

recall additional details.

Erin Culhane, the friend who accompanied L.M. to the hospital, supplied

some additional context. She explained that the day before, while L.M. was at 6 Alexander’s house, Culhane was spending the night at L.M.’s residence to take

care of someone else who lived there. At 4:45 a.m., Culhane saw L.M. come home,

and she was completely naked. L.M. also appeared highly intoxicated and bled

heavily from her groin. Concerned, Culhane said that she wanted to call the

police, but L.M. dissuaded her and went to bed. When L.M. woke up, Culhane

convinced her to go to the hospital.

Consistent with L.M. and Culhane’s narratives, Detective Lund saw peeled

skin on L.M.’s lips, as well as abrasions, scratch marks, burn marks, and needle

marks on her body. A doctor also relayed that an X-ray image depicted a razor

blade lodged in L.M.’s anal cavity. Further corroborating L.M.’s story, Culhane

had brought L.M.’s bloody underwear to the hospital.

With this information in hand, Detective Lund contacted the SPD’s Criminal

Investigations Division (CID) to take further action. At around 5:00 p.m., two

more officers arrived at the hospital. The newly arrived officers remained there,

and Detective Lund left for Alexander’s house.

2. Initial Entry, Search and Seizure of Alexander’s House

Alexander owned the house where L.M.’s alleged assault occurred and lived

there with five other people—three relatives (his mother, father, and brother) and

two non-relatives (L.M.’s friend Samantha, and one of L.M.’s alleged attackers,

S.W.). 7 After Detective Lund contacted CID, Detective Gilhooley was sent to

Alexander’s house to act as the lead investigator. By 6:50 p.m., Detective Gilhooley

arrived at Alexander’s house, and Detective Lund briefly recapped for him what

L.M. and Culhane conveyed at the hospital. The two detectives and others then

knocked on Alexander’s door. A houseguest answered. The parties dispute what

happened next.

According to Detective Gilhooley, the houseguest gave him permission to

enter. But according to Alexander’s houseguest, Detective Gilhooley and his

fellow officers pushed their way in. Alexander’s brother testified that the officers

then went upstairs with their guns out. During the ensuing sweep, officers

“wrecked” a room belonging to Alexander’s father, rummaging through dresser

drawers and dumping personal belongings onto a bed. Dist. Ct. Dkt. No. 119-7 at

22–25. 2 When officers encountered Alexander, they found him sitting on a toilet.

The officers told Alexander to “get up” and go downstairs to the living room. Dist.

Ct. Dkt. No. 119-2 at 92.

Once every occupant had gathered in the living room, Alexander told SPD

to leave his house and get a warrant. The officers responded by surrounding the

2 When quoting the summary judgment evidence, the parties’ briefs, and case law, we omit all internal quotation marks, footnotes, ellipses, and citations, and accept all alterations, unless otherwise noted.

8 group in a horseshoe formation. By 8:00 p.m., SPD was escorting Alexander and

the others out of the home; they were forced to leave their cellphones, wallets, and

other belongings inside. One officer then stayed on the front porch to keep anyone

else from entering.

3. Towing Alexander’s Cars

The precise timing is unclear, but sometime before Alexander and his group

were forced out of the house, Detective Gilhooley had already gone outside. He

saw three cars—one covered and two uncovered. Detective Gilhooley shined his

flashlight into the two uncovered cars and saw in each of them red spots that

appeared to be blood. To preserve this potentially incriminating evidence,

Detective Gilhooley had the two uncovered cars towed. Although the parties did

not submit a visual depiction of the driveway, Detective Gilhooley testified that

the towed cars were parked “roughly in the front, side and/or side of the house,”

in a “driveway area immediately in front of the house.” Supp. App’x 108, 136 ¶

18. From this description, it appears a wide driveway space laid directly in front

of the entryway to Alexander’s house. It also seems the driveway stretched from

the front of the house and wrapped around the side, forming a large L-shape of

sorts. Alexander does not appear to dispute this description, describing the area

as a “parking lot.” Dist. Ct. Dkt. No. 119-2 at 98. Based on this record, it seems

9 that the driveway was rather large; several people had access to it; and Alexander’s

visitors had to use the driveway to get to the house’s entrance.

4. The Prolonged Seizure and Ongoing Search of Alexander’s House

In total, SPD seized Alexander’s house for over 20 hours—from before

8:00 p.m. on Monday, October 24, 2016 (when Alexander and his group were

ordered outside) to 4:00 p.m. on Tuesday, October 25, 2016 (when SPD executed

the search warrant). During that period, 12.5 hours passed between SPD’s initial

seizure of the home and Detective Gilhooley’s submission of his warrant

application to Syracuse City Court. During this 12.5-hour period, four events

important to this appeal transpired.

First, while SPD towed Alexander’s cars, Detective Gilhooley told

Alexander, “This is what happens when you piss me off.” Dist. Ct. Dkt. No. 119-

2 at 95.

Second, shortly before 10:43 p.m., an SPD officer went inside Alexander’s

home and heard noise coming from upstairs. The officer followed the disturbance

and found Tereia Duff, Alexander’s cousin, trying to escape through a window.

The officer apprehended her, and Duff wrote a sworn statement in which she

stated that Alexander told her to go into the house and get his cellphone.

Third, the seizure of the house forced Alexander and other occupants to

spend the night outside or find other arrangements. To stay warm, Alexander and 10 others started a fire pit. Alexander’s brother accompanied Alexander for most of

the evening. Throughout the night, while Alexander and others waited outside,

officers changed shifts, and kept “going in the house,” or “peek[ing] in.” Dist. Ct.

Dkt. No. 119-2 at 100–01. At 5:45 a.m., Alexander left so he could go to work.

Fourth, after Detective Gilhooley left the premises, and after he had

Alexander’s cars towed, Detective Gilhooley returned to the CID office and

drafted the warrant application. At 10:00 p.m., his shift ended, and he went home

for the night. Detective Gilhooley did not explain why he did not request a

warrant before leaving for the night. As set forth more fully below, the application

was relatively straightforward and required minimal drafting on Detective

Gilhooley’s part.

The next morning, Detective Gilhooley finalized the application and

submitted it to the Syracuse City Court at 8:30 a.m. One hour and forty-five

minutes later, a judge issued a warrant authorizing officers to search and seize

evidence from Alexander’s home.

5. Alexander’s Arrest on the Burglary Charges

Armed with the warrant, Detective Gilhooley left for Alexander’s house and

arrived around 11:00 a.m. Alexander got back from his work shift sometime

between 12:00 and 1:00 p.m. As Alexander approached his house, he saw

Detective Gilhooley dump a pot of water on his family’s firepit while arguing with 11 Alexander’s sister. Angered, Alexander said, “That’s it,” and walked towards a

nearby corner store to get video footage of the preceding events. Dist. Ct. Dkt. No.

119-2 at 103. When he did so, Detective Gilhooley and another SPD detective

tackled Alexander and arrested him on four charges: second-degree burglary

under New York Penal Law (NYPL) § 140.25, conspiracy to commit second-degree

burglary under NYPL § 105.10, facilitating second-degree burglary under NYPL

§ 115.00, and soliciting second-degree burglary under NYPL § 100.05. 3 (To

simplify our discussion, we collectively refer to these four charges as “the burglary

charges.”) Detective Gilhooley premised his arrest on the theory that when

Alexander asked Duff to enter the house and get his cellphone after the SPD had

seized the house, Alexander participated in a burglary of his own home. After the

arrest, Alexander was taken downtown to CID’s offices.

At 4:00 p.m., SPD officers finally executed the search warrant. (It’s unclear

why the officers took so long to execute the warrant, given that Detective

Gilhooley delivered it at 11:00 a.m.) Some 30 minutes later, the officers completed

their search, and they seized a “[b]eige chunky substance,” three scales with white

residue, a bottle of Inositol (a cutting agent), hundreds of small plastic bags, and

3 New York classifies second-degree burglary as a Class C felony. See NYPL § 140.25. Although the conspiracy, facilitation, and solicitation statutes charged do not specifically name second-degree burglary, they all cover Class C felonies. See NYPL § 105.10(1) (covering class C felonies); id. § 115.00 (same, but all felonies); id. § 100.05 (same).

12 personal papers with Alexander’s name on them. Supp. App’x 222. The items

were all found in Alexander’s bedroom. A field test on the chunky substance and

white powder yielded a positive reading for cocaine.

6. Alexander’s Initial Pretrial Detention

Meanwhile, at the CID office, Detective Gilhooley tried to cut a deal with

Alexander, saying:

I’m going to give you 15, 20 minutes to think about this. We need some information from another case that you could help us on. If you help us, we’ll make this all go away. If not, we’re going to bury you.

Dist. Ct. Dkt. No. 119-2 at 110.

Alexander declined the offer, and he was formally booked in the Onondaga

County Justice Center on the burglary and drug-related charges. 4 A somewhat

complicated series of formal criminal proceedings followed.

* * *

The above narrative includes a lot of dates and times because in this appeal,

timing matters. We summarize the key events viewed in the light most favorable

to Alexander in the table below.

4 In his deposition, Alexander said he was booked in the Justice Center “for burglary of [his] own house” and “possession of drugs.” Dist. Ct. Dkt. No. 119-2 at 110. But when he filed his response to the City and Detective Gilhooley’s Rule 56.1 Statement, he denies generally that “he was booked at the same time of all charges that day.” Supp. App’x 343 ¶ 147. We assume for purposes of this summary judgment motion that Alexander was booked on both the burglary and drug-related charges on the same day.

13 Day Date Time Event Mon. Oct. 24 4:45 a.m. L.M. arrives home after the assault.

Afternoon L.M. goes to the hospital.

3:59 p.m. The hospital calls SPD. Detective Lund and Officer Kiellach respond, and they interview L.M., Culhane, and hospital staff.

5:00 p.m. Two more officers arrive at the hospital, and Detective Lund goes to Alexander’s house.

6:50 p.m. Detective Gilhooley arrives at Alexander’s house and speaks with Detective Lund. He then enters Alexander’s home without consent or a warrant.

8:00 p.m. Alexander’s cars are towed, and Alexander and his home’s occupants are forced outside. Detective Gilhooley leaves for the CID office to draft a search warrant application.

10:00 p.m. Detective Gilhooley’s shift ends, and he goes home without having requested a warrant.

10:43 p.m. Officers catch Duff inside Alexander’s bedroom. She fills out a sworn statement.

Tues. Oct. 25 5:45 a.m. After spending the night outside, Alexander leaves for work.

8:30 a.m. Detective Gilhooley submits his search warrant application.

10:15 a.m. A judge issues the search warrant.

14 11:00 a.m. Detective Gilhooley gives a copy of the warrant to officers at Alexander’s house.

Between Alexander arrives home from work, and 12:00 and Detective Gilhooley arrests him on the 1:00 p.m. burglary charges. Alexander is transported to CID.

4:00 p.m. Officers execute search warrant.

4:30 p.m. Officers discover narcotics and drug paraphernalia in Alexander’s room.

Unknown Detective Gilhooley formally books Alexander into the Justice Center on the burglary and drug charges.

B. Alexander’s Pretrial Detention

On Wednesday, October 26, 2016—the day after Detective Gilhooley booked

Alexander in the County’s Justice Center—the Syracuse City Court arraigned him

on the burglary and drug charges and fixed bail at $100,000. Because Alexander

did not post bail at that point, he remained in custody. Two days passed.

On Friday, October 28, 2016, L.M. spoke with County authorities and

alleged, for the first time, that Alexander personally participated in her sexual

assault, and that other men were also involved. (Recall that at the hospital, L.M.

said only one man attacked her, and she did not implicate Alexander in the

15 incident.) Later that day, L.M. testified before a grand jury convened by the

County, and she stated that Alexander was among the men who imprisoned and

raped her. Because the government wanted to present another witness the

following Monday, the proceedings were continued, and the grand jury did not

return an indictment that day.

The next day, Saturday, October 29, 2016, Alexander posted bail for his

burglary and drug charges. The documentary evidence includes a release order

signed by a City Court judge acknowledging receipt of $50,000 in connection with

the drug charges, and one signed by the County Court acknowledging receipt of

$50,000 in connection with the burglary charges. The release orders are dated

October 29; the record does not indicate what time of day they were signed. The

County Justice Center did not release Alexander that day. However, the record

shows that at 12:30 p.m., the County arrested Alexander for committing a criminal

sexual act in the first degree, in violation of NYPL § 130.50 (the “sexual assault

charge”).

Alexander testified that on the morning of Sunday, October 30, 2016, he was

arraigned on the sexual assault charge, and the court fixed bail at $500,000. The

documentary evidence reflects that he was arraigned in the Syracuse City Court,

and then the case was transferred to the County Court. Four days later, on

Thursday, November 3, 2016, the County Court reduced Alexander’s bail to 16 $100,000. That same day, Alexander posted bail for the second time. Like the first

bail posting, the precise time that Alexander posted bail is unknown.

The next day, on Friday, November 4, 2016, the County’s grand jury charged

Alexander with unlawful imprisonment under NYPL § 135.10 arising from the

assault on L.M. The summary judgment record does not show when Alexander

was arraigned on the unlawful imprisonment charge.

Further, it’s not clear when Alexander was actually released after making

bail. In his live pleading, which was filed by Alexander’s prior attorney, he alleges

that a counseled habeas corpus motion prompted his release on Monday,

November 7, 2016. Defendants did not proffer any summary judgment evidence

on this matter, and the record contains conflicting testimony by Alexander. In his

deposition, when Alexander was representing himself, he testified that he was

released on the evening of Friday, November 4, 2016. But during a small claims

proceeding that occurred closer in time to the incidents at issue, Alexander

testified that he was released on November 7. Because we must afford Alexander

“special solicitude” as a self-representing litigant, Kravitz v. Purcell, 87 F.4th 111,

119 (2d Cir. 2023), and because defendants have not marshaled any evidence on

the question, we presume at this stage that the County Justice Center released

Alexander on November 7, 2016.

* * * 17 As before, we summarize the above events in a table.

Day Date Event Tues. Oct. 25 Alexander is booked in the County’s Justice Center on City charges of burglary and drug offenses.

Wed. Oct. 26 The City arraigns Alexander on the burglary and drug charges. The City Court fixes bail at $100,000. Alexander does not post bail that day.

Fri. Oct. 28 L.M. implicates Alexander in her sexual assault, first to County authorities, then to a County grand jury.

Sat. Oct. 29 At 12:30 p.m., Alexander is arrested on the County’s sexual assault charge. At an unknown time, Alexander posts $50,000 bail with the City Court for the drug charges and $50,000 with the County Court for the burglary charges. Alexander is not released that day.

Sun. Oct. 30 Alexander is arraigned on the sexual assault charge. Bail is set at $500,000.

Thurs. Nov. 3 A County Judge reduces bail on the sexual assault charge to $100,000. At an unknown time, Alexander posts bail. Alexander is not released.

Fri. Nov. 4 The County’s grand jury indicts Alexander on the unlawful imprisonment charge.

Mon. Nov. 7 Alexander is released.

After all this, the criminal proceedings terminated in Alexander’s favor. At

some point, the County District Attorney dismissed the burglary charges,

18 concluding that proving a burglary case based on an entry into one’s own home

would be difficult. And Alexander agreed to plead guilty to an unrelated criminal

matter in exchange for dismissal of the drug charges. With respect to the sexual

assault and unlawful imprisonment charges, almost one year after the events

outlined above, the County District Attorney’s investigation could not tie

Alexander to L.M.’s assault, and the prosecution moved to dismiss the case. Thus

ended the saga underlying Alexander’s claims in this civil action.

II. Procedural History

In 2017, Alexander commenced this lawsuit against the City, County, and

Detective Gilhooley. 5 More than a year later, Detective Gilhooley and the City

jointly filed a motion to dismiss, which the district court granted in part. Alexander

I, 2018 WL 6591426, at *11–12. The parties then proceeded to discovery. By the

time Detective Gilhooley and the City sought summary judgment, a number of

constitutional claims under 42 U.S.C. § 1983 remained pending against Detective

Gilhooley and the County. 6 In addition, three New York state law claims

5 Alexander also sued L.M. but voluntarily dismissed his claims against her because she had died in April 2018 due to an apparent drug overdose. 6 On the City’s motion to dismiss, the district court dismissed all § 1983 claims against the

City. Alexander I, 2018 WL 6591426, at *11. Alexander does not challenge this ruling on appeal.

19 remained pending against Detective Gilhooley, the City, and the County.

Alexander II, 573 F. Supp. 3d at 728 & nn.10–11.

As relevant to this appeal, Alexander bases his § 1983 claims on:

(1) Detective Gilhooley’s warrantless, nonconsensual entry into and search and

seizure of Alexander’s home; (2) Detective Gilhooley’s direction to other officers

to seize Alexander’s home on a prolonged basis while he sought a search warrant;

(3) Detective Gilhooley’s shining his flashlight through the windows of

Alexander’s two cars; 7 (4) Detective Gilhooley’s allegedly false arrest of Alexander

on the burglary charges; (5) the allegedly malicious prosecutions of Alexander on

the burglary, drug, sexual assault, and unlawful imprisonment charges; and

(6) the delay of Alexander’s pretrial release after Alexander posted bail on two

occasions. 8 Alexander’s three state law claims, and his claims against the City and

7 Alexander also argued to the district court that the towing of his two cars violated his constitutional rights. The district court rejected this argument. Alexander II, 573 F. Supp. 3d at 733–34. Because Alexander does not discuss this ruling in his appellate brief , he has abandoned any challenge to it. See King v. Aramark Services Inc., 96 F.4th 546, 562 n.7 (2d Cir. 2024). 8 In their motion for summary judgment, Detective Gilhooley and the City did not brief

Alexander’s over-detention claims, even though Alexander’s live pleading alleged that he posted bail twice and claimed the defendants “continued to hold” him “until [his] counsel filed a habeas corpus motion to get him released.” Supp. App’x 10 ¶ 70. Because Alexander represented himself at the summary judgment stage, the district court afforded him “deference” and evaluated the over-detention claims on its own accord. Alexander II, 573 F. Supp. 3d at 728 n.11. Given that Alexander’s response brief in the trial court and his opening brief in this Court continues to take issue with his delayed release, we consider his over-detention claim preserved for appellate review.

20 County, are premised on the latter three events. Detective Gilhooley defended

against all of Alexander’s claims on the merits. 9

In a lengthy opinion, the district court granted Detective Gilhooley and the

City’s motion for summary judgment in full. Alexander II, 573 F. Supp. 3d at 741.

In so doing, the district court assessed the § 1983 claims under the Fourth

Amendment and held that, with respect to the initial warrantless entry and 12.5-

hour seizure, exigent circumstances justified Detective Gilhooley’s actions. See id.

at 731–32. It also held that shining a flashlight into a vehicle did not amount to a

Fourth Amendment search, and thus, Detective Gilhooley’s actions did not violate

the Constitution. Id. at 733. And, because Duff’s sworn statement established

probable cause for the burglary charges, Alexander could not prevail on his false

arrest claim relative to the burglary charge. Id. at 735. In addition, after concluding

9 Qualified immunity has not been core to the proceedings so far and we need not at this juncture assess whether Gilhooley is protected from any of Alexander’s claims by qualified immunity. The City of Syracuse and Detective Gilhooley’s amended answer asserts in a single sentence qualified immunity for “[a]ny and all acts.” Dist. Ct. Dkt. No. 8 ¶ 99. In summary judgment briefing, Detective Gilhooley argued, in the alternative, that he was entitled to qualified immunity because of, among other things, “arguable probable cause.” Dist. Ct. Dkt. No. 119-48 at 24. However, the district court did not rule on the basis of qualified immunity. Moreover, Detective Gilhooley has not argued qualified immunity in briefs or during oral arguments before this Court, and therefore could be construed to have forfeited this argument. See City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 137 (2d Cir. 2011) (noting that this Court “ordinarily deem[s] an argument to be forfeited where it has not been sufficiently argued” before it); Fabrikant v. French, 691 F.3d 193, 211–12 (2d Cir. 2012) (noting that “the defense of qualified immunity can indeed be forfeited”); Maye v. City of New Haven, 89 F.4th 403, 407 (2d Cir. 2023) (noting that a litigant’s failure to diligently pursue the qualified immunity affirmative defense may “cost it its ‘immunity from suit,’ leaving it with ‘a mere defense to liability’” which may ordinarily be forfeited (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985))).

21 that probable cause supported all of the criminal charges against Alexander, the

district court ruled that no reasonable jury could render a verdict on Alexander’s

malicious prosecution claims. Id. at 737–41.

As for Alexander’s over-detention claim, the district court characterized it

as a Fourth Amendment claim of false arrest. Id. at 736. The district court

concluded that the evidence did not support such a claim because Alexander’s

release orders did not say his discharge should be “immediate;” he was arraigned

on new charges within 48 hours of the extension of his detention; 10 and the first

bail posting was to the City Court, so the County Court still had the right to hold

Alexander in custody thereafter. Id. at 736–37. The district court thus dismissed

all claims against Detective Gilhooley and the City. Id. at 741–42.

At the end of its opinion, the district court acknowledged that for the

entirety of the lawsuit, the County “made little effort” to defend itself, as it had

neither filed a motion to dismiss nor a motion for summary judgment. Id. at 728

n.10, 741. Pursuant to Federal Rule of Civil Procedure 56(f)(1), the district court

warned the parties that it planned to enter summary judgment for the County on

10 Before its decision in County of Riverside v. McLaughlin, the Supreme Court held that if the government arrests an individual without a warrant, the Fourth Amendment requires the arrestee be “promptly” “brought before a neutral magistrate for a judicial determination of probable cause.” 500 U.S. 44, 53 (1991). To help “provide some degree of certainty” on what would be considered prompt, the Court held in McLaughlin that “judicial determinations of probable cause within 48 hours of arrest will, as a general matter,” suffice. Id. at 56.

22 its own accord. Id. at 741. The County filed a short, cursory letter of non-

opposition, and Alexander filed his own letter of opposition. In a brief opinion

that largely adopted its prior summary judgment reasoning by reference, the

district court entered summary judgment for the County and terminated it from

the lawsuit. Alexander III, 2022 WL 79642, at *1–3.

Alexander then filed this timely appeal. Although the City and Detective

Gilhooley filed response briefs, the County did not submit a response brief or

present oral argument.

DISCUSSION

We review a district court’s award of summary judgment without

deference. Torcivia v. Suffolk County, 17 F.4th 342, 354 (2d Cir. 2021). A district

court may only grant summary judgment if “the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as

a matter of law.” Fed. R. Civ. P. 56(a). And where a defendant moves for summary

judgment, if the defendant has not met its burden of production to show an

absence of a genuine dispute of material fact, “summary judgment must be denied

even if no opposing evidentiary matter is presented.” Amaker v. Foley, 274 F.3d 677, 681

(2d Cir. 2001) (emphasis in original). That is so because “no defense to an

insufficient showing is required.” Id.

23 Because Alexander is the nonmovant, we must construe the record in the

light most favorable to him, resolving all factual disputes and drawing all

reasonable inferences in his favor. Murphy, 82 F.4th at 180. Additionally, because

Alexander appears before us as a self-represented litigant, we afford him “special

solicitude,” meaning we will liberally construe his filings and read them to raise

the strongest arguments that they suggest. Kravitz, 87 F.4th at 119.

Below, we start with Alexander’s claims against Detective Gilhooley for

Fourth Amendment violations in connection with the warrantless search and

seizure of his home and looking into his car windows. We then consider his claims

for false arrest and malicious prosecution, and, finally, his claims based on his

continued detention after he met bail.

As we explain more fully below, the district court erred when it granted

summary judgment for Detective Gilhooley in connection with Alexander’s

Fourth Amendment claim based on the initial search and on the ensuing

prolonged seizure and further search of Alexander’s home. In addition, because

the probable cause to arrest Alexander for burglary depended on the validity of

the seizure of his home, the district court erred in granting Detective Gilhooley

summary judgment on the Fourth Amendment and New York claims of false

arrest and malicious prosecution based on the burglary charge. By extension, due

to the City’s potential vicarious liability, the district court erred in granting the 24 City summary judgment on the state law claims arising from the burglary arrest

and prosecution. Finally, we conclude that there is insufficient evidence in the

record to award the City or County summary judgment on Alexander’s state law

false imprisonment claims based on his over-detention. In all other respects, we

affirm the judgments for all defendants.

I. Detective Gilhooley’s Search and Seizure of Alexander’s Home 11

A. The Initial Warrantless Entry into and Search of Alexander’s Home

The Fourth Amendment protects “[t]he right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable searches and

seizures.” U.S. Const. amend. IV. Because the home is the “first among equals” in

the Fourth Amendment’s eyes, Florida v. Jardines, 569 U.S. 1, 6 (2013), warrantless

searches of a private dwelling are “presumptively unreasonable,” United States v.

Simmons, 661 F.3d 151, 156–57 (2d Cir. 2011). See also Groh v. Ramirez, 540 U.S. 551,

559 (2004) (“Because the right of a [person] to retreat into [the] home and there be

free from unreasonable governmental intrusion stands at the very core of the

Fourth Amendment, our cases have firmly established the basic principle of

11 Alexander does not on appeal challenge the district court’s judgment for the City on his § 1983 claims arising from Detective Gilhooley’s search and seizure of his home and vehicles, and he did not allege County involvement in that conduct. So this analysis relates solely to claims against Detective Gilhooley.

25 Fourth Amendment law that searches and seizures inside a home without a

warrant are presumptively unreasonable.”).

To surmount this presumption of unreasonableness, the government must

show that one of the “reasonable exceptions” to the warrant requirement applies.

United States v. Iverson, 897 F.3d 450, 458 (2d Cir. 2018). Here, two exceptions

potentially come into play—consent and exigent circumstances. Given that a

houseguest testified that officers “pushed [their] way in[to] the house,” App’x 240,

for purposes of this appeal we must accept that Detective Gilhooley never got

consent to enter Alexander’s home. The question, then, is whether a rational jury

could find that no exigency existed to support a warrantless entry. We say yes.

The exigent circumstances exception applies when “the exigencies of the

situation make the needs of law enforcement so compelling that a warrantless

search is objectively reasonable.” Kentucky v. King, 563 U.S. 452, 460 (2011).

Intended for “now or never” situations, the exception authorizes warrantless

entries to, for example, “render emergency assistance to an injured occupant,”

“protect an occupant from imminent injury,” “prevent the imminent destruction

of evidence,” or “prevent a suspect’s escape” when there is “no time to secure a

warrant.” Lange v. California, 594 U.S. 295, 301–02 (2021); see also United States v.

Caraballo, 831 F.3d 95, 102 (2d Cir. 2016). To benefit from the exception, an officer

must have probable cause to believe an exigency exists. “The core question is 26 whether the facts, as they appeared at the moment of entry, would lead a

reasonable, experienced officer, to believe that there was an urgent need to render

aid or to take action” without securing a warrant. Chamberlain Estate of Chamberlain

v. City of White Plains, 960 F.3d 100, 106 (2d Cir. 2020).

Because this exception must be “jealously and carefully drawn,” Coolidge v.

New Hampshire, 403 U.S. 443, 455 (1971), officers “bear a heavy burden” to show

that an exigency justified a warrantless entry. Chamberlain, 960 F.3d at 106.

Additionally, any warrantless searches and seizures must be “strictly

circumscribed” to ameliorate the exigency at issue. Id. In other words, once the

exigency ends, any additional warrantless search or seizure “is no longer

permissible.” Id. at 107; see also United States v. Cosme, 796 F.3d 226, 235 (2d Cir.

2015) (noting the exigent circumstances exception “does not

immunize . . . lengthy, warrantless seizure[s]”).

The district court concluded that no reasonable jury could find for

Alexander on the claim that Detective Gilhooley violated the Fourth Amendment

when he entered Alexander’s home and searched it without a warrant. See

Alexander II, 573 F. Supp. 3d at 731. This was error for two reasons. First and

foremost, there is no evidence that Detective Gilhooley had any indication that

evidence destruction was occurring in real time as he stood at the threshold before

forcing his way in. Second, the passage of time between L.M.’s initial report at the 27 hospital and Detective Gilhooley’s warrantless entry—almost three hours—

undermines any suggestion that there wasn’t sufficient time to secure a warrant.

In light of these considerations, neither the severity of the crime under

investigation nor the existence of probable cause to believe he would find evidence

of a crime on the premises gave rise to exigent circumstances supporting Detective

Gilhooley’s warrantless entry into Alexander’s home.

1. Real Time Evidence Destruction

If an officer invokes the exigent circumstances exception to justify a

warrantless entry to search for and preserve evidence, the bar is high. 12 The

threatened destruction of evidence must be “imminent.” Lange, 594 U.S. at 301.

For that reason, the exigent circumstances exception typically applies when an

officer has reason to believe evidence inside a private dwelling is being destroyed

or removed in real time.

12 We have often relied on six factors to determine whether exigent circumstances support a warrantless entry to apprehend a suspect: “(1) the gravity or violent nature of the offense with which the suspect is to be charged; (2) whether the suspect is reasonably believed to be armed; (3) a clear showing of probable cause to believe that the suspect committed the crime; (4) strong reason to believe that the suspect is in the premises being entered; (5) a likelihood that the suspect will escape if not swiftly apprehended; and (6) the peaceful circumstances of the entry.” Harris v. O’Hare, 770 F.3d 224, 234 (2d Cir. 2014). Although these factors are informative, they “are not directly applicable to recovery of property scenarios because there is no specific suspect of interest.” Id. In this context, we thus focus our analysis on “whether quick action [was] necessary to prevent the destruction of evidence.” Id. at 234–35.

28 Take, for example, our decision in United States v. Medina, 944 F.2d 60 (2d

Cir. 1991). There, an undercover informant and four suspects went into an

apartment to execute a drug deal. Id. at 63. The government informant was the

seller, and the four suspects were the buyers. Id. After one suspect produced

almost $47,000 in cash, the informant asked two other suspects to go outside and

help him bring cocaine into the apartment. Id. Once the three left the apartment,

federal agents arrested the two unwitting suspects. Id. The agents then made their

way to the apartment, knocked on the door, and announced that they were police

officers. Id. In response, they heard “scuffling noises” and conversations in

Spanish. Id. The agents forced their way into the home with a battering ram. Id.

On appeal, we held that exigent circumstances justified the warrantless

entry. Id. at 68. We noted that, given the situation, the two purchasers who waited

inside the apartment clearly expected the informant and their two confederates to

return with the cocaine in a short amount of time. Id. at 69. A prolonged delay

would have clearly sounded alarm bells. Id. Plus, when agents knocked on the

door and identified themselves, the occupants’ reactions indicated an attempt to

escape, destroy evidence, or engage in other unlawful activity. Id. Under these

circumstances, we held that “it was objectively reasonable to conclude that

immediate entry was necessary to prevent the destruction or hiding” of the

evidence and “the escape of the suspects.” Id. 29 Our caselaw is rife with similar examples of exigent circumstances. See, e.g.,

United States v. Andino, 768 F.3d 94, 96 (2d Cir. 2014) (agents heard a faucet begin

to run in response to a knock); United States v. Klump, 536 F.3d 113, 118 (2d Cir.

2008) (firefighter smelled a burning odor upon arrival); United States v. MacDonald,

916 F.2d 766, 770 (2d Cir. 1990) (en banc) (agents had an urgent need to prevent

the loss of evidence given that “the suspects were using an unidentified apartment

in the building to store narcotics, the ease with which the suspects could have

disposed of the cocaine by flushing it down the toilet, and the possibility that the

prerecorded five dollar bill used . . . in the undercover buy would be lost if the

ongoing drug transactions were permitted to continue while the agents sought a

warrant”); United States v. Farra, 725 F.2d 197, 198 (2d Cir. 1984) (agents heard

sounds of “stirring about” and slamming drawers in response to knocking); United

States v. Gomez, 633 F.2d 999, 1006 (2d Cir. 1980) (agents heard commotion and

sounds of a flushing toilet).

Here, no similar evidence of imminent evidence destruction presented itself

when Detective Gilhooley stood on the threshold of Alexander’s home and forced

his way in. Recall that L.M. and Culhane suggested that the attack on L.M.

occurred before 4:45 a.m.—over 12 hours before Detective Gilhooley arrived at

Alexander’s doorstep at 6:50 p.m. Though L.M. reported that the women who had

attacked her had subsequently cleaned her up in the pre-dawn hours of the 30 morning, Detective Gilhooley did not have any indication that evidence

destruction was still underway in real time some 12 hours later.

Nor did an exigency present itself at the moment before Detective Gilhooley

pushed his way into the house. The summary judgment record is bereft of any

indicia that Detective Gilhooley perceived any sights or sounds in response to his

knocking that would have suggested Alexander and the other occupants were

destroying evidence in real time. 13

2. Delayed Action

In addition, the time lapse between L.M.’s interview with officers at the

hospital and Detective Gilhooley’s warrantless entry belies the suggestion that

there was no time to get a warrant. The exigent circumstances exception applies

in “situations presenting a ‘compelling need for official action and no time to secure

a warrant.’” Lange, 594 U.S. at 301 (emphasis added) (quoting Missouri v. McNeely,

569 U.S. 141, 149 (2013)). Notably, approximately three hours passed between

Detective Lund’s interviews at the hospital and Detective Gilhooley’s warrantless

entry. In that time period, Detective Lund didn’t even try to seek a warrant. And

13 Our conclusion on this point isn’t surprising. Detective Gilhooley doesn’t argue that his warrantless entry was justified on the basis of exigent circumstances. He contends that his initial entry was consensual; by his own telling, it was only after he entered the house that exigent circumstances arose to support his subsequent actions; in particular, he encountered a resident named “Samantha.”

31 no new information came to light to create an exigency during that time. Although

Alexander asserts his claim against Detective Gilhooley and not Detective Lund,

the time gap nevertheless cuts against a finding that there was “no time to secure

a warrant.” Id.; see also United States v. Gallo-Roman, 816 F.2d 76, 81 (2d Cir. 1987)

(exigent circumstances exception applied, in part, because “a mere twenty

minutes” was an “unrealistic” amount of time to secure a warrant).

Thus, after reviewing the record in the light most favorable to Alexander,

we conclude that a reasonable jury could find that no exigency justified a

warrantless entry, search, and seizure of Alexander’s home. On this record, the

fact that Detective Gilhooley had probable cause to expect that evidence of a

heinous crime would be found in the house was not by itself enough to justify the

warrantless entry, notwithstanding the horrific nature of the suspected crime. See

Groh, 540 U.S. at 559 (“[A]bsent exigent circumstances, a warrantless entry to

search for weapons or contraband is unconstitutional even when a felony has been

committed and there is probable cause to believe that incriminating evidence will

be found within.”). We are not persuaded otherwise by the dissent. Much of the

daylight between our view and the dissent’s stems from different descriptions of

the record, rather than divergent understandings of the law. At this stage of the

case, we must view the summary judgment record in the light most favorable to

32 Alexander and cannot rely on disputed allegations and inferences favorable to the

defendants. Murphy, 82 F.4th at 180.

But to the extent that the dissent suggests that Detective Gilhooley’s conduct

in purportedly “securing” Alexander’s house while seeking a warrant is not a

search or seizure for Fourth Amendment purposes, and is thus exempt from the

exigent circumstances (or consent) analysis, we do see the law differently. As

reflected in the above analysis, such a seizure may be constitutional if supported

by one of the “reasonable exceptions” to the warrant requirement. Iverson, 897

F.3d at 458. But even if the record properly viewed supported the dissent’s

suggestion that Detective Gilhooley merely “secure[d]” the house to prevent

destruction of evidence, Dissent at 7, there is no separate “securing-the-premises”

category of law enforcement activity that is exempt from Fourth Amendment

scrutiny. 14 See, e.g., Illinois v. McArthur, 531 U.S. 326, 330–33 (2001) (assessing the

constitutionality of law enforcement officers’ securing a home while seeking a

search warrant pursuant to the exigent circumstances framework).

14 Nor do we find any support in the law for the dissent’s assertion that Detective Gilhooley’s forcible exclusion of Alexander and others from his house was not a seizure because the City of Syracuse did not assert title to the property. Dissent at 6–7. Cf. United States v. Smith, 967 F.3d 198, 205 (2d Cir. 2020) (“A ‘seizure’ of personal property occurs for purposes of the Fourth Amendment if the police meaningfully interfere with an individual’s possessory interests in their property.”).

33 In fact, the cases the dissent relies on reinforce that the “exigent

circumstances” framework applies in assessing the constitutionality of officers

taking control of premises or property for purposes of securing them pending

receipt of a warrant. For example, in Segura v. United States, the Supreme Court

considered a case in which officers entered an apartment without a warrant,

arrested occupants in connection with suspected drug distribution, and remained

in the apartment to secure it while others sought a warrant. 468 U.S. 796 (1984).

The defendants sought to suppress items officers found the next day, pursuant to

a lawful warrant that did not rely on information gained through the initial entry,

arguing that the officers’ securing the apartment amounted to an unlawful seizure

of the contents of the apartment. Id. at 805–06. The Supreme Court assumed that

the initial entry was unlawful, but concluded that securing the premises from the

inside rather than the outside did not constitute an unlawful seizure requiring

suppression of evidence later found pursuant to a valid warrant. Id. at 811, 813.

The Court’s rejection of the argument that its holding would incentivize illegal

entries is telling:

In the first place, an entry in the absence of exigent circumstances is illegal. . . . Second, as a practical matter, officers who have probable cause and who are in the process of obtaining a warrant have no reason to enter the premises before the warrant issues, absent exigent circumstances which, of course, would justify the entry. Third, officers who enter illegally will recognize that whatever evidence they discover as a direct result of the entry may be suppressed . . . . Finally, 34 if officers enter without exigent circumstances to justify the entry, they expose themselves to potential civil liability under 42 U.S.C. § 1983.

Id. at 811–12 (emphasis added). In addition, the Court recognized that “a seizure

reasonable at its inception . . . based upon probable cause may become

unreasonable as a result of its duration or for other reasons.” Id. at 812. Far from

supporting the dissent’s position, Segura reinforces that officers can only enter

premises to secure them while they seek a warrant if exigent circumstances allow,

and that the reasonableness of seizing property by “securing” it is context

dependent.

Likewise, in United States v. Smith, this Court held that police could seize

personal property without a warrant “to prevent its destruction or

disappearance”—that is, under exigent circumstances—while they seek a warrant.

967 F.3d 198, 205 (2d Cir. 2020). See also United States v. Picariello, 568 F.2d 222, 226

(1st Cir. 1978) (concluding that FBI agents “made a justifiable assessment of

exigent circumstances in their decision to secure defendant’s apartment pending

the arrival of the search warrant” and distinguishing a case in which officers had

probable cause for a search and seizure but unreasonably delayed obtaining a

warrant); United States v. Guidry, 534 F.2d 1220, 1223 (6th Cir. 1976) (holding that

warrantless entry of premises was constitutionally permissible on the basis of an

“exigent circumstance” where officers had evidence that “efforts to destroy

35 evidence were in progress and would be likely to be completed absent prompt

action in entering the premises”). 15

The district court thus erred when it awarded Detective Gilhooley summary

judgment on this Fourth Amendment-based § 1983 claim.

B. The Prolonged Seizure of Alexander’s Home and Further Search

Likewise, the district court erred when it granted summary judgment on

Alexander’s § 1983 claim based on the lengthy seizure of his home. Even if a jury

concluded that exigent circumstances justified Detective Gilhooley’s initial entry

and search, a jury could find facts supporting the conclusion that Detective

Gilhooley’s subsequent prolonged seizure of the house, and the continuing

warrantless search during that time, was unreasonable.

In a case in which exigent circumstances supported seizure of an

individual’s home while an officer sought a warrant, the Supreme Court

“balance[d] the privacy-related and law enforcement-related concerns to

15 The “protective sweep” cases cited by the dissent to justify the warrantless search of rooms in Alexander’s home are likewise inapposite because they presume that law enforcement is lawfully on the premises to begin with—a condition that doesn’t apply here. Dissent at 11–13. See United States v. Miller, 430 F.3d 93, 95 (2d Cir. 2005) (“We conclude that an officer in a home under lawful process, such as an order permitting or directing the officer to enter for the purpose of protecting a third party, may conduct a protective sweep when the officer possesses articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the scene.” (emphasis added)); United States v. Terry, 702 F.2d 299, 319 (2d Cir. 1983) (concluding that officers lawfully on premises pursuant to a warrant were entitled to make a limited security check of the premises).

36 determine whether the intrusion was reasonable” under the Fourth Amendment.

McArthur, 531 U.S. at 331. In McArthur, police officers had accompanied a woman

to the trailer she shared with her husband, McArthur, to keep the peace while she

retrieved her belongings. Id. at 328. The officers remained outside while she

collected her possessions. Id. at 329. When she emerged, she told them that her

husband had just slid some “dope” under the couch. Id. A police officer knocked

on the door, repeated what the wife had said, and asked for permission to search

the residence. Id. After McArthur declined, one officer left to seek a warrant, and

the other told McArthur, who by that time was on the porch, that he could not

reenter the trailer unless he was accompanied by a police officer. Id. During the

ensuing hour and 45 minutes, McArthur reentered the trailer two or three times

(to get cigarettes or make phone calls) while the officer stood just inside the door

and observed. Id. When the second officer returned with the warrant, the officers

searched the trailer and found drug-related contraband under the couch. Id.

The Supreme Court concluded that the seizure was supported by exigent

circumstances, and was “tailored to that need, being limited in time and scope.”

Id. at 331. In so concluding, the Court emphasized that law enforcement had

reasonably balanced their “law enforcement needs with the demands of personal

privacy.” Id. at 332. In particular, they didn’t search the trailer, left McArthur’s

home and belongings intact until they had a warrant, and allowed McArthur to 37 enter his trailer under observation. Id. Moreover, the police imposed this restraint

for a little less than two hours. Id. The Court noted, “As far as the record reveals,

this time period was no longer than reasonably necessary for the police, acting

with diligence, to obtain the warrant.” Id.

In this case, viewing the evidence in the light most favorable to Alexander,

the balance tips the other way. The strength of Alexander’s privacy interest in his

home, the total exclusion of Alexander combined with the extent of the pre-

warrant search, and the duration of the prolonged seizure all support Alexander’s

claims. Cf. Smith, 967 F.3d at 206 (in context of seizure of computer tablet,

identifying four factors for assessing the reasonableness of the delay in securing a

warrant: the length of the delay, importance of the seized property, whether the

individual had a reduced property interest, and the strength of the government’s

justification for the delay).

First, the importance of Alexander’s interest. We’ve covered this already.

“Freedom in one’s own dwelling is the archetype of the privacy protection secured

by the Fourth Amendment,” and “physical entry of the home is the chief evil

against which it is directed.” Lange, 594 U.S. at 303. The Fourth Amendment’s

“very core” includes the right “to retreat into [one’s] own home and there be free

from unreasonable government intrusion.” Jardines, 569 U.S. at 6. Moreover, this

Court has recognized that these principles apply with “particular intensity” when 38 a home is searched at night. United States v. Simmons, 661 F.3d 151, 157 (2d Cir.

2011). There is no question that the importance to Alexander of the seized

property—his home—is high.

Second, Detective Gilhooley did not simply ask Alexander to remain outside

unless accompanied by police officers while he entered his house to retrieve

possessions. Rather, Alexander was completely excluded from his home. At the

same time, Detective Gilhooley did not just establish a perimeter around the

house, leaving its contents untouched while awaiting a warrant. The record

includes evidence that upon entering the house, the officers under Detective

Gilhooley’s direction conducted a room-by-room search, opening drawers and

throwing residents’ belongings around, even after the residents were removed

from their rooms. Then, after excluding Alexander and others, officers repeatedly

came in and out of the house. Once officers had removed the occupants from their

rooms, thereby eliminating the possibility of them destroying evidence in those

rooms, there was no plausible justification for them to enter the rooms without a

warrant. See id. at 157–58 (holding that once officers eliminated possibility of

evidence destruction or danger by separating individual from a gun, “there simply

was no ‘urgent need’ to further search the home” without a warrant). And once

the occupants of the home were removed to the outdoors, there was no reason for

the officers to enter the house without a warrant. 39 And most importantly, the length of the delay and the lack of diligence in

securing a warrant tips heavily against Detective Gilhooley. “The right of the

police to temporarily seize a person’s property pending the issuance of a search

warrant presupposes that the police will act with diligence to apply for the

warrant.” Smith, 967 F.3d at 205; see also Cosme, 796 F.3d at 235 (exigent

circumstances exception “does not immunize . . . lengthy, warrantless

seizure[s]”).

This imperative is particularly critical upon the seizure of a home. As the

Tenth Circuit has emphasized,

[A]fter seizing a home without a warrant, an officer must make it a priority to obtain a search warrant that complies with the Fourth Amendment. This obligation requires the officer to act with diligence to present a warrant application to a judicial officer at the earliest reasonable time . . . .

United States v. Elmore, 101 F.4th 1210, 1219–20 (10th Cir. 2024) (emphasis added).

The Supreme Court concluded in McArthur that the seizure’s 1.75-hour duration

was no longer than “reasonably necessary for the police, acting with diligence, to

obtain the warrant.” 531 U.S. at 332. The same cannot be said here. The sheer

passage of time, the fact that Detective Gilhooley went home for the night in the

midst of the seizure, and the lack of any explanation for the delay undermine his

claim that the seizure was constitutionally permissible.

40 Detective Gilhooley left Alexander’s home to prepare his warrant request at

8:00 p.m. He didn’t submit it to a court until 8:30 the next morning—12.5 hours

later. In a similar case, the Tenth Circuit concluded that a delay of eight hours was

unreasonable under the Fourth Amendment. Elmore, 101 F.4th at 1214. In Elmore,

officers secured a home while they sought a search warrant after they learned that

a teenager had overdosed on unlawfully obtained controlled substances. Id. at

1214–15. During that time—from 11:30 a.m. to 7:30 p.m.—officers refused to let

the teenager’s mother, father, or young sibling enter the home with a police escort

to take care of their pets or to retrieve a toy. Id. at 1215. The Tenth Circuit

concluded the prolonged seizure violated the Fourth Amendment. Id. at 1220. The

facts here are even more compelling for Alexander: The delay in Elmore was

significantly shorter than this case and the seizure in Elmore occurred during

daytime hours. See United States v. Ravich, 421 F.2d 1196, 1201 (2d Cir. 1970) (noting

the “peculiar abrasiveness” of nighttime searches of someone’s home).

Moreover, here Detective Gilhooley went home for the night at 10:00 p.m.

He has offered no evidence to explain why he did not, and could not, submit his

warrant application to the court that night, especially knowing that Alexander and

others were dispossessed of their residence awaiting resolution of the warrant

request. Cf. United States v. Rosa, 626 F.3d 56, 58 (2d Cir. 2010) (investigator in

Oswego County, New York, applied for a search warrant after 2:00 a.m.); United 41 States v. Banks, 60 F.4th 386, 391 (7th Cir. 2023) (“The suppression testimony

confirmed that Sangamon County, where Springfield is located, has a judge on call

24 hours a day, 365 days a year to consider and issue search warrants. The officers

here had more than enough time to pick up the telephone . . . .”); United States v.

Song Ja Cha, 597 F.3d 995, 1006 (9th Cir. 2010) (“[T]he officers involved should have

known that when there is an urgency to obtain a search warrant, a detached

magistrate judge may be located at any hour to approve a warrant application.”);

Brennan v. Township of Northville, 78 F.3d 1152, 1155 (6th Cir. 1996) (“Yankee

testified . . . that an emergency magistrate was available in the evenings for the

purpose of obtaining search warrants[.]”).

In addition, the warrant request was not particularly complicated. The 4 ½

page document includes a lengthy boilerplate recitation of Detective Gilhooley’s

background and qualifications, a 1 ½ page summary of the events leading to the

request, and a brief list of places to be searched and items to be seized. The warrant

application on its face doesn’t appear to have required over 12 hours of

preparation time by a seasoned detective.

We recognize that there may be compelling reasons why Detective

Gilhooley could not have applied for a warrant in the late hours of Monday,

October 24 or during the early hours of Tuesday, October 25. See United States v.

Escobar, 805 F.2d 68, 70 (2d Cir. 1986) (“McGivern later . . . told him that it would 42 take some time to get a search warrant because no magistrate was on duty that

night.”); United States v. Gill, 280 F.3d 923, 929 (9th Cir. 2002) (“The [prosecutor]

indicated that the search warrant application would be reviewed over the

weekend and a magistrate judge was not available to issue the search warrant[.]”).

But Detective Gilhooley bears the burden of justifying a warrantless seizure. Cf.

United States v. Perea, 986 F.2d 633, 639 (2d Cir. 1993) (stating that government

bears the burden of justifying a warrantless search). And as the party seeking

summary judgment, Detective Gilhooley bears the burden of production to show

an absence of a genuine issue of material fact. Amaker, 274 F.3d at 681. 16

Here, the delay between leaving Alexander’s premises at 8:00 p.m. and

applying for a search warrant at 8:30 a.m. remains unexplained. On this record,

we cannot conclude as a matter of law that Detective Gilhooley has met his burden

of establishing the absence of a genuine dispute as to whether he acted with

reasonable diligence, so he is not entitled to summary judgment on the claim that

16 The dissent flips the burdens here and emphasizes that “the record contains no indication that a judicial officer was available to issue a warrant had the application been presented during the night.” Dissent at 15. But given that Detective Gilhooley, as the party seeking summary judgment, must establish the absence of a material dispute of fact, and that he will ultimately bear the burden of proving that an exception to the warrant requirement justifies his prolonged seizure and continuing search of Alexander’s home, the absence of evidence as to the availability of a judicial officer weighs against granting summary judgment for Detective Gilhooley. See Amaker, 274 F.3d at 681 (explaining that if the defendant has not met the burden of production to show an absence of a genuine dispute of material fact, “summary judgment must be denied even if no opposing evidentiary matter is presented” (emphasis in original)).

43 his prolonged seizure of Alexander’s home was reasonable under the Fourth

Amendment.

C. Shining a Flashlight into Alexander’s Uncovered Cars

We reject Alexander’s assertion that Detective Gilhooley violated his Fourth

Amendment rights by, without a warrant, shining a flashlight into the windows

of two of Alexander’s cars, parked in the parking lot by his house. We conclude

on this record that the vehicles in question were not within the curtilage of

Alexander’s home, and Detective Gilhooley’s actions did not constitute a search

within the meaning of the Fourth Amendment. We thus affirm the district court’s

summary judgment for Detective Gilhooley on this claim.

As we said earlier, an individual’s home occupies a special place under the

Fourth Amendment. Curtilage—that is, “the area immediately surrounding and

associated with the home”—is also considered “part of the home itself” for the

purposes of the Fourth Amendment. Jardines, 569 U.S. at 6. However, for

surrounding areas that a reasonable person would understand they could use to

ingress and egress without trespassing, such areas are not considered curtilage.

See United States v. Hayes, 551 F.3d 138, 146 (2d Cir. 2008) (noting a “normal route

of access for anyone visiting the premises” would not be curtilage).

Thus, in United States v. Jones, we held that where a car is parked in a

driveway shared by other tenants in a multi-family building, a suspect does not 44 have a reasonable expectation of privacy over the vehicle, and an officer may look

into the vehicle without a warrant. 893 F.3d 66, 72 (2d Cir. 2018); cf. Collins v.

Virginia, 584 U.S. 586, 593–94 (2018) (because no visitor would view a driveway

segment enclosed on three sides by a house and brick wall as part of the path to

the front entryway of the house, a motorcycle in that spot was in the curtilage of

the suspect’s home and an officer’s warrantless search violated the Fourth

Amendment).

On the record evidence before us, a reasonable jury could not conclude that

the areas in which Alexander’s cars were parked constituted curtilage. According

to Detective Gilhooley’s description, which Alexander does not dispute, it appears

that visitors must use the driveway as an avenue for ingress and egress to the

house’s entryway from the road. Alexander has adduced no evidence that the two

towed cars were parked in any enclosures or that he took any steps to protect them

from observations by people passing by. He also called the area a “parking lot,”

which undermines any argument that the driveway could be considered part of

the home. Dist. Ct. Dkt. No. 119-2 at 98. Without any opposing evidence to

consider, there is no genuine dispute that Alexander’s cars were parked outside

the curtilage of his home. So, as a matter of law, Detective Gilhooley did not

45 conduct a search for Fourth Amendment purposes when he shined his flashlight

into the vehicles. 17

II. False Arrest and Malicious Prosecution Charges

Our above analysis impacts Alexander’s claims for false arrest and

malicious prosecution in connection with the burglary charges, but not the others.

We first consider his false arrest claims, then his malicious prosecution claims.

A. False Arrest

Alexander’s complaint includes false arrest claims against Detective

Gilhooley and the City. 18 We consider each in turn.

1. Claims Against Detective Gilhooley

The district court concluded that Alexander’s false arrest claims (state and

federal) fail because Detective Gilhooley had probable cause to arrest Alexander

for burglary of his police-seized home. Because Detective Gilhooley’s probable

17 In his appeal brief, Alexander contends that one of the cars was parked on his mother’s property, which abuts his. This assertion does not appear to be grounded in any testimony or other evidence in the summary judgment record. And Alexander’s claim that his car was actually parked on his mother’s property does not help his case, as the record doesn’t suggest that he had any greater expectation of privacy if his car was parked on his mother’s side of the driveway. See Rakas v. Illinois, 439 U.S. 128, 143 (1978) (“[T]he protection of the Fourth Amendment depends . . . upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place.”).

18 Alexander does not allege County involvement in his initial arrest.

46 cause to arrest Alexander rises and falls with the lawfulness of his seizure of

Alexander’s home, we disagree. 19

“A § 1983 claim for false arrest, resting on the Fourth Amendment right of

an individual to be free from unreasonable seizures[,] is substantially the same as

a claim for false arrest under New York law.” Kee v. City of New York, 12 F.4th 150,

158 (2d Cir. 2021). “Under New York law, to prevail on a claim for false arrest, a

plaintiff must show that (1) the defendant intended to confine the plaintiff, (2) the

plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the

confinement, and (4) the confinement was not otherwise privileged.” Ashley v.

City of New York, 992 F.3d 128, 136 (2d Cir. 2021). “Probable cause to arrest is a

complete defense to a false arrest claim.” Kee, 12 F.4th at 158. If there is probable

cause to arrest a plaintiff “for any crime—whether or not that particular crime was

closely related to the offense the officers said was the reason for the arrest”—then

a plaintiff cannot prevail. Id. at 158–59 (emphasis in original).

Detective Gilhooley doesn’t deny that he arrested Alexander mid-day on

Tuesday, October 25. The critical question here is whether he had probable cause

19 In his brief, Alexander argues that (1) he was falsely arrested for burglary because he did not personally enter the house, and (2) he can’t be charged with conspiracy because it takes two to make a conspiracy and nobody else was charged. These arguments obviously fail. But viewing Alexander’s brief as raising the strongest arguments that it suggests, United States v. Pilcher, 950 F.3d 39, 44 (2d Cir. 2020), we consider whether Detective Gilhooley had probable cause to arrest Alexander for burglary of his own home.

47 to do so. When Detective Gilhooley first arrested Alexander, he did so because he

believed Alexander committed a substantive burglary offense and three inchoate

offenses—conspiracy, facilitation, and solicitation of second-degree burglary—all

in connection with Duff’s retrieval of Alexander’s property from his home.

Critically, at the time of the arrest, SPD had not executed the search warrant, and

thus had not lawfully obtained any evidence of Alexander’s drug possession. Nor

had L.M. implicated Alexander in her sexual assault. So, when Detective

Gilhooley arrested Alexander, he only knew Duff had been caught entering

Alexander’s home; that’s the only potential basis for Detective Gilhooley’s initial

arrest of Alexander.

In New York, a person commits second-degree burglary when the person

“knowingly enters or remains unlawfully in a building with intent to commit a

crime therein, and when . . . [t]he building is a dwelling.” NYPL § 140.25. A person

enters or remains unlawfully in a building if the person “is not licensed or

privileged to do so.” NYPL § 140.00(5). At issue is whether Detective Gilhooley

had probable cause to believe that Duff lacked license or privilege to enter

Alexander’s home at his direction. Viewing the facts in the light most favorable to

Alexander, a reasonable jury could say no.

If Detective Gilhooley’s seizure of the home was unlawful from its

inception, then Alexander and Duff never lost license or privilege to enter 48 Alexander’s house. See People v. Leonard, 62 N.Y.2d 404, 407 (1984) (holding a state

university’s unlawful banishment order precluded a trespass conviction because

the defendant still retained license and privilege to be on the premises); Brown v.

Hoffman, 122 A.D.3d 1149, 1150–52 (3d Dep’t 2014) (holding a county employee

lacked probable cause to arrest an individual for trespass because the county

employee lacked authority to remove plaintiff, and, therefore, the plaintiff had

license and privilege to remain on the premises); accord Storey v. Taylor, 696 F.3d

987, 993–94 (10th Cir. 2012) (no probable cause to arrest suspect for failing to obey

an unlawful order). Because a jury could find the seizure of Alexander’s house

violated the Constitution, see Sections I.A and I.B. above, it could also find that

Alexander, and Duff on his behalf, retained license and privilege to enter the

dwelling.

It’s true that probable cause for any crime—not just the burglary-related

charges—can defeat Alexander’s false arrest claim premised on his arrest for the

burglary charges. Kee, 12 F.4th at 158–59. But Detective Gilhooley has not pointed

us to any other offense for which he could have lawfully arrested Alexander at the

time he arrested him for burglary. As the movant for summary judgment,

Detective Gilhooley shoulders the burden of production to show an absence of a

genuine dispute of material fact. Amaker, 274 F.3d at 681. By not pointing us to

probable cause for any other offenses, he has not carried this burden. 49 We therefore conclude that a jury could find Detective Gilhooley arrested

Alexander without probable cause for any crime. Summary judgment should not

have been awarded on Alexander’s § 1983 and New York claims of false arrest

against Detective Gilhooley.

2. Claims Against the City

Alexander does not on appeal challenge the district court’s dismissal of all

§ 1983 claims against the City, but he does challenge the dismissal of his parallel

state law claims. Under New York law, municipalities can incur vicarious liability

for common law torts their employees commit. Lepore v. Town of Greenburgh, 120

A.D.3d 1202, 1204 (2d Dep’t 2014). Because a jury could render a verdict against

Detective Gilhooley for falsely arresting and maliciously prosecuting Alexander

on the burglary charges, a jury could do the same with respect to the City. We

therefore vacate the award of summary judgment to the City on the false arrest

claim.

B. Malicious Prosecution

With respect to Alexander’s claims of malicious prosecution under § 1983

and New York law, we affirm the district court’s award of summary judgment

insofar that the claims are premised on the drug, sexual assault, and unlawful

imprisonment charges. As for Alexander’s malicious prosecution claims premised

on the burglary charges, we vacate and remand the judgment for substantially the 50 same reasons that we reinstated the false arrest claim. We begin with Alexander’s

claims against Detective Gilhooley, and then consider his claims against the City. 20

To prevail on a malicious prosecution claim under New York law, a plaintiff

must show “(1) the commencement or continuation of a criminal proceeding by

the defendant against the plaintiff, (2) the termination of the proceeding in favor

of the accused, (3) the absence of probable cause for the criminal proceeding[,] and

(4) actual malice.” Kee, 12 F.4th at 161–62. Section 1983 requires these same four

elements, see id., but it also imposes an additional one: “(5) a sufficient post-

arraignment liberty restraint to implicate the plaintiff’s Fourth Amendment

rights.” Rohman v. New York City Transit Authority, 215 F.3d 208, 215 (2d Cir. 2000);

see also Chiaverini v. City of Napoleon, 602 U.S. 556, 562 (2024) (explaining that claims

of § 1983 malicious prosecution allege a type of unreasonable seizure, which takes

the form of “the wrongful initiation of charges without probable cause”).

And, unlike Fourth Amendment claims of false arrest, in the Fourth

Amendment malicious prosecution context, probable cause must support each

charge brought by the prosecution. Chiaverini, 602 U.S. at 562–63. In other words,

“the bringing of one valid charge in a criminal proceeding [does] not categorically

20 We don’t understand Alexander to make a malicious prosecution claim against the County.

51 preclude a [malicious prosecution] claim based on the Fourth Amendment.” Id. at

563. Probable cause exists where officers have “knowledge or reasonably

trustworthy information” that a crime has been committed. Triolo v. Nassau County,

24 F.4th 98, 106 (2d Cir. 2022). 21

Probable cause plainly supported the drug, sexual assault, and unlawful

imprisonment charges against Alexander. The narcotics and drug paraphernalia

found in Alexander’s bedroom established probable cause for the drug charges.

Likewise, L.M.’s reports to law enforcement and her grand jury testimony—which

accused Alexander of imprisoning and sexually assaulting her—created probable

cause for the sexual assault and unlawful imprisonment charges. So, as a matter

of law, Alexander cannot prevail on any malicious prosecution claim premised on

these three criminal proceedings. See Kee, 12 F.4th at 166. We affirm the summary

judgment for Detective Gilhooley on these claims.

As before, the burglary charges are a different matter. In its opinion, the

district court concluded that Detective Gilhooley had probable cause for the

21 Although prosecutors, rather than police, litigate criminal cases, a claim for malicious prosecution can lie against an officer who “play[ed] an active role in the prosecution, such as giving advice and encouragement or importuning the authorities to act.” Bermudez v. City of New York, 790 F.3d 368, 376 (2d Cir. 2015); see also White v. Frank, 855 F.2d 956, 961 (2d Cir. 1988) (“Where . . . the constitutional tort is the action of a police officer in initiating a baseless prosecution, his role as a complaining witness renders him liable [for malicious prosecution] under [§] 1983 . . . .”).

52 burglary charges based on Duff’s sworn statement. Alexander II, 573 F. Supp. 3d

at 738. Implicit in its ruling, then, was a conclusion that the seizure of Alexander’s

home was lawful, and that the lawful seizure divested Alexander and Duff of their

license or privilege to enter the home.

As we’ve already discussed, there’s a genuine dispute over the lawfulness

of the seizure of Alexander’s home. See Sections I.A and I.B above. It therefore

follows that there’s a genuine dispute as to whether probable cause could support

Alexander’s burglary charges—the third element of a malicious prosecution claim.

The district court erred in ruling otherwise.

As for the remaining elements of a malicious prosecution claim, Alexander

has mustered sufficient evidence to carry his burden. First, Alexander’s

arraignment on the burglary charges constituted a criminal proceeding for the

purposes of malicious prosecution. Singer v. Fulton County Sheriff, 63 F.3d 110, 117

(2d Cir. 1995) (explaining an arraignment can serve as the “legal process” required

to maintain a suit for malicious prosecution). Second, the prosecution’s decision

not to indict the case due to its shaky underlying legal theory shows the criminal

proceeding terminated in Alexander’s favor. See Kee, 12 F.4th at 162–64 (explaining

that a “favorable termination” for a § 1983 malicious prosecution claim is one

that’s “indicative of innocence,” and that a “favorable termination” for a New York

malicious prosecution claim is one that’s “not inconsistent with” innocence). 53 Third, because the City Court ordered that Alexander be detained unless he posted

bail, Alexander has shown a sufficient post-arraignment restriction on his liberty

that implicated his Fourth Amendment rights. See Rohman, 215 F.3d at 216

(holding pretrial release on recognizance was a sufficient post-arraignment

restriction).

And last, where probable cause is missing, a jury could infer malice. Dufort

v. City of New York, 874 F.3d 338, 353–54 (2d Cir. 2017). As we’ve already said, a

jury could find Detective Gilhooley lacked probable cause to arrest Alexander on

the burglary charges. Because a jury could so find, it could also infer that Detective

Gilhooley acted with malice. Id.

What’s more, the summary judgment record contains affirmative evidence

that’s probative of malice. For example, Alexander testified that when his cars

were being towed, Detective Gilhooley told him, “This is what happens when you

piss me off.” Dist. Ct. Dkt. No. 119-2 at 95. The officers also did not arrest

Alexander until he attempted to leave his house to go to a nearby corner store to

get video footage of the preceding events. And at the CID office, Detective

Gilhooley said, “I’m going to give you 15, 20 minutes to think about this. We need

some information from another case that you could help us on. If you help us,

we’ll make this all go away. If not, we’re going to bury you.” Id. at 110. This

evidence could amply support a finding that Detective Gilhooley acted with a 54 “wrong or improper motive, something other than a desire to see the ends of

justice served.” Nardelli v. Stamberg, 44 N.Y.2d 500, 502–03 (1978); see also Dufort,

874 F.3d at 353–54 (holding that a jury could find malice where a detective treated

someone as a suspect simply to induce him to testify against others).

In sum, the district court should have denied summary judgment on

Alexander’s § 1983 and New York claims of malicious prosecution against

Detective Gilhooley.

For the reasons set forth above, we affirm the district court’s summary

judgment for defendants on Alexander’s malicious prosecution claims, insofar as

they are premised on the drug, sexual assault, and unlawful imprisonment

charges. And we vacate the judgment for the City on the state law malicious

prosecution claim insofar as it derives from the state law claim against Detective

Gilhooley. Lepore, 120 A.D.3d at 1204 (under New York law, municipalities can

incur vicarious liability for common law torts committed by their employees).

III. Continued Detention After Alexander Posted Bail

We easily affirm the district court’s summary judgment for Detective

Gilhooley in connection with Alexander’s over-detention claims. The claims

against the municipal defendants are another matter.

55 A. Claims Against Detective Gilhooley

We need not spend long on these claims. “To establish a defendant’s

individual liability in a suit brought under § 1983, a plaintiff must show the

defendant’s personal involvement in the alleged constitutional deprivation.”

Kravitz, 87 F.4th at 129. New York imposes a similar requirement for claims of

false imprisonment. Martinez v. City of Schenectady, 97 N.Y.2d 78, 85 (2001)

(explaining that New York false imprisonment requires a defendant “intended” to

confine a plaintiff).

Here, the summary judgment record includes no evidence that Detective

Gilhooley was personally involved in Alexander’s bail posting and continued

detention. We affirm the district court’s judgment on the over-detention claims

B. Claims Against the City and County

Alexander asserts a § 1983 claim of over-detention and a state law claim of

false imprisonment based on his delayed pretrial release on two occasions. He has

not challenged the district court’s judgment for the City on his § 1983 claim, and

we conclude that Alexander has not produced sufficient evidence to impose § 1983

liability on the County. But gaps in the record preclude summary judgment for

either municipal defendant on the parallel state law claims.

56 1. The § 1983 Over-Detention Claims Against the County

In contrast to New York law, § 1983 does not impose vicarious liability on a

municipality for the actions of its employees. Friend v. Gasparino, 61 F.4th 77, 93

(2d Cir. 2023). Because of this limitation, plaintiffs suing a municipality under

§ 1983 must show that the unconstitutional action “implements or executes a

policy statement, ordinance, regulation or decision officially adopted and

promulgated by that body’s officers,” or governmental custom. Monell v.

Department of Social Services of City of New York, 436 U.S. 658, 690–91 (1978).

“Official municipal policy includes the decisions of a government’s lawmakers,

the acts of its policymaking officials, and practices so persistent and widespread

as to practically have the force of law.” Connick v. Thompson, 563 U.S. 51, 61 (2011).

The evidence viewed in the light most favorable to Alexander suggests that

he was held in an Onondaga County detention facility for less than a day after he

posted bail for the burglary and drug charges, and he was held for four days after

he posted bail on charges relating to the assault of L.M. But he offers no evidence,

or even allegations, that the extended detention implemented an official policy or

even an informal custom of the County. For this reason, the district court properly

awarded the County judgment on Alexander’s § 1983 claims arising from his

alleged over-detention.

57 2. Alexander’s State Law False Imprisonment Claim

The New York false imprisonment claim is a different matter. Under New

York law, the elements of false imprisonment and false arrest are the same. See

Hughes v. Vento, 226 A.D.3d 753, 754–55 (2d Dep’t 2024). To prevail on a claim for

false arrest in New York, “a plaintiff must show that (1) the defendant intended to

confine the plaintiff, (2) the plaintiff was conscious of the confinement, (3) the

plaintiff did not consent to the confinement, and (4) the confinement was not

otherwise privileged.” Ashley, 992 F.3d at 136.

In its opinion, the district court merged its analysis of the state false

imprisonment claim with Alexander’s § 1983 claim. See Alexander II, 573 F. Supp.

3d at 736–37 (discussing claim against the City); Alexander III, 2022 WL 79642, at *2

(applying Alexander II’s analysis to the County). That was error. The elements of

the two claims are distinct, and Monell is not a bar to Alexander’s state law claims.

Alexander alleges two periods of false imprisonment—one after each time he

posted bail. Our assessment of the summary judgment motion with respect to

these claims turns on what isn’t known with respect to these claims.

The First Bail Posting. The record reflects the following: Alexander posted

bail on the burglary and drug charges on October 29. The County arrested

Alexander on the sexual assault charge at 12:30 p.m. that same day. At all relevant

58 times, Alexander was detained at the County Justice Center. For summary

judgment purposes, that’s what we know.

Importantly, there is no evidence in the record as to what time Alexander

posted bail. Was it before his arrest for sexual assault? If so, how long before? If

he posted bail well before his arrest for sexual assault, why was he held thereafter?

And at whose behest was he detained? Were the driving decisions attributable to

the City, the County, or both? We can imagine scenarios in which his detention

after posting bail on October 29 was unproblematic. But doing so requires us to

make speculative inferences.

The Second Bail Posting. Likewise with the second bail posting. On

November 3, Alexander posted bail on his sexual assault charges. Yet, if we credit

the evidence most favorable to Alexander, he was not released until November

7—a delay of four days, or 96 hours. That would be a problematic gap.

But the record contains conflicting evidence from Alexander himself as to

whether he was in fact detained for four days after posting bail. And we have no

evidence from the County as to why he was detained.

On this record, gaps in the evidence preclude summary judgment for either

municipal defendant with respect to Alexander’s over-detention claims.

Ultimately, Alexander will bear the burden of proof with respect to these claims

at trial, where such evidentiary gaps would work against him. But in this 59 summary judgment posture, the City is the party seeking summary judgment, and

the County argues for affirmance of a judgment in its favor that it didn’t

affirmatively request. It is therefore incumbent upon these defendants to establish

the absence of a genuine issue of material fact such that they are entitled to

summary judgment. Amaker, 274 F.3d at 681 (where a defendant seeking summary

judgment fails to meet its burden of production, “summary judgment must be

denied even if no opposing evidentiary matter is presented” (emphasis in original)).

Neither defendant has pointed to evidence as to when Alexander was

released and why his release was delayed, if, in fact, it was. See Fed. R. Civ. P.

56(a). In its own summary judgment filing, the City apparently didn’t view this

as an issue raised by Alexander’s pleadings. And the County submitted a

perfunctory filing that simply said it did “not intend to oppose the Court’s on its

own granting of summary judgment,” Dist. Ct. Dkt. No. 135. The City and County

did not satisfy their respective burdens of production, so we must conclude that

the district court erred when it awarded both defendants summary judgment on

Alexander’s state law false imprisonment claims. See Amaker, 274 F.3d at 681.

We have considered the parties’ remaining arguments and conclude that

they are either without merit or do not warrant discussion. For the foregoing

60 reasons, we VACATE the judgment of the district court with respect to the

following claims:

Against Detective Gilhooley

• § 1983 claim based on the warrantless entry and search, and the ensuing prolonged warrantless seizure and further search of Alexander’s home • § 1983 and New York claims of false arrest • § 1983 and New York claim of malicious prosecution (as it relates to the burglary charges only)

Against the City

• New York claim of false arrest • New York claim of malicious prosecution (as it relates to the burglary charges only) • New York false imprisonment claims

Against the County

• New York false imprisonment claims

We AFFIRM the judgment of the district court with respect to Alexander’s

other claims, and REMAND for further proceedings consistent with this opinion. 22

22 As a final note, if Alexander requests it, we encourage the district court to consider appointing Alexander counsel on remand. As the district court’s opinions and ours have shown, this case is highly fact intensive, implicates complicated legal doctrines, and involves an intricate matrix of claims and defendants.

61 Jon O. Newman, Senior Circuit Judge, dissenting from those parts of the

Court ‘s opinion that remand for further proceedings.

At the time of the events in question, plaintiff-appellant, Troy Alexander,

owned a house in Syracuse, New York, (1) which he used to conduct a prostitution

business, (2) from which he sold narcotics, and (3) in which, when Alexander was

present on the night of October 23, 2016, a brutal rape was committed on 19-year-

old Lashauna Monahan, for whom Alexander acted as a pimp. Defendant-appellee

Rory Gilhooley, a detective with the Syracuse Police Department, investigated the

crimes that occurred at Alexander’s house.

The Court reverses in large part the district court’s grant of summary

judgment for Gilhooley and in part the grant of summary judgment for the City of

Syracuse (“City”) and the County of Onondaga (“County”). The Court remands

to afford Alexander an opportunity to collect money primarily from Gilhooley for

alleged violations of his constitutional rights and, to a limited extent, from the City

and the County for alleged violations of Alexander’s state law rights.

I respectfully dissent from the remand for two reasons. First, before

Gilhooley took any actions against Alexander, undisputed evidence gave

Gilhooley probable cause to take all of the actions that the Court contends might

1 have violated Alexander’s rights. Gilhooley committed no constitutional

violations. I would therefore affirm the district court’s grant of summary judgment

in favor of Gilhooley. Second, Alexander’s claims against Gilhooley encounter the

defense of qualified immunity, which Gilhooley pled in his answer 1 and asserted

in support of his motion for summary judgment. 2 I would also affirm the grant of

summary judgment for the City and the County.

Here are the facts that Gilhooley was entitled to believe, as a result of his

own investigation and information collected by other police officers, 3 before taking

any of the actions against Alexander that are claimed to violate the Fourth

Amendment. On the morning of October 24, Monahan ran out of Alexander’s

house, completely naked and bleeding heavily from her groin area. She had been

sexually assaulted in the basement of Alexander’s house the night before.

Alexander was then sitting in the first floor of the house. The assault included

forced anal intercourse and forced oral sex while Monahan was tied to a bench.

Her mouth was first glued shut, then pried open to permit the oral sex, and then

1 Gilhooley’s Amended Answer, ¶ 99, Dist. Ct. Dkt. No. 8. 2 Memorandum of Law in Support of Motion for Summary Judgment by Defendants City of Syracuse and Detective Rory Gilhooley, Point VI at 23-24, Dist. Ct. Dkt. No. 119-48. 3 Gilhooley’s knowledge includes the collective knowledge of other members of the Syracuse Police Department. Savino v. City of New York, 331 F.3d 63, 74 (2d Cir. 2003).

2 again glued shut. She was repeatedly burned with lit cigarettes and injected with

narcotics.

At a hospital later that day, police officers observed cigarette burns on the

side of Monahan’s face and her shoulder. They also observed peeled skin and a

white substance on her lips. They saw cuts on her left wrist consistent with having

been cut with a multi-blade razor.

A police officer learned from an emergency room doctor that X-rays of

Monahan showed a razor blade lodged inside her anal cavity. Surgery was

required to remove it. 4

On the evening of October 24, Sergeant Rosillo and Sergeant Metz secured

Alexander’s house, put up crime scene tape, and posted officers at the house,

pending the obtaining of a search warrant, to prevent anyone from entering the

house who might tamper with, remove, or destroy evidence of the gruesome crime

that had occurred there.

That night Gilhooley knocked on the door of the house, a woman opened

the door, and Gilhooley and other police officers entered. The woman later

claimed that police officers “pushed” their way into the house.

4 Reporting these details of the brutal assault upon a 19-year-old victim invades no privacy interest of hers because she has recently died of a drug overdose.

3 Gilhooley stated in his deposition that “we made sure that no one else was

in the upstairs of the house or in the basement,” and that “everyone in the house

that we were securing pending getting a search warrant . . . had to leave.”

After Gilhooley left the house, he saw three cars in the driveway area.

Alexander acknowledged that he owned these cars. Gilhooley looked through the

windows of the cars and saw what he believed was blood on the seats of two of

the cars. Gilhooley directed another officer to have these cars towed.

Later that same evening, Detective Travis Holmes was assigned to watch

the house to make sure that no unauthorized person entered pending the

obtaining of a search warrant. Detective Holmes saw Tereia Duff, Alexander’s

cousin, speaking with Alexander. Still later, Detective Holmes heard a noise

coming from the second floor of the house and entered the house, which was then

secured to prevent anyone from entering. He encountered Duff running toward a

locked bedroom on the third floor. She had a key in her hand. She told Holmes

that Alexander had given her the key to the locked bedroom and had asked her to

go inside the house and retrieve his phone. 5

5The entry by Holmes has no bearing on Alexander’s Fourth Amendment claims against Gilhooley, who did not enter the house when Holmes did. Holmes’ entry is relevant to Gilhooley’s arrest of Alexander for burglary offenses stemming from Alexander’s direction to Duff to retrieve his phone. Alexander claimed in a deposition that some officers entered the house

4 That evening Gilhooley returned to the Criminal Investigations Division

(“CID”) and began preparing an application for three warrants, one to search the

house and two to search the towed automobiles. At 10 p.m. when his shift ended,

Gilhooley went home to sleep. He returned to CID at 8 a.m. the next morning and

finished the search warrant application at 8:30 a.m. Gilhooley’s application is a

five-page single-spaced document. A state court judge issued the search warrants

at 10:20 a.m.

Later on the morning of October 25, Gilhooley arrested Alexander on

charges of burglary and conspiracy, facilitation, and solicitation related to the

burglary charge. Police officers searched the house at 4 p.m. that day and found

narcotics and narcotics paraphernalia. Alexander was arrested and charged with

narcotics offenses.

Subsequent police interviews occurred with various witnesses, but they

are not relevant to my view that undisputed evidence known to Gilhooley on

October 24 suffices to defeat all of Alexander’s claims.

I. Alexander’s claims against Gilhooley

after Holmes did, but he did not name Gilhooley as one of them. Alexander’s statement that “they changed shifts, they came, the new officers went” indicates that those entering were the officers assigned to guard the house. Alexander Dep. at 101. Dist. Ct. Dkt. No. 119-2.

5 Alexander’s amended complaint alleged several causes of action.

Although that complaint is not entirely clear as to what claims Alexander is

making specifically against Gilhooley, the Court considers the following claims:

(1) unlawful “seizure” of the house, (2) unlawful initial entry into and search of

the house, (3) prolonged “seizure” of the house, (4) delay in applying for a search

warrant, (5) unlawful search of upstairs rooms in the house, (6) looking into and

towing Alexander’s cars, (7) arresting Alexander for burglary charges, (8)

malicious prosecution for drug, sexual assault, and unlawful imprisonment

charges, and (9) detention after posting bail. I consider each claim separately.

1. Unlawful “seizure” of the house

The Court remands the grant of summary judgment in favor of Gilhooley

because he might be shown to have violated the Fourth Amendment by what the

Court calls his “Search and Seizure of Alexander’s Home.” Ct. Op. at 27. I first

consider the claim of unlawful “seizure” and then the claim of unlawful search.

Preliminarily, I note that “seizure” is the wrong word to describe the

action that Gilhooley took with respect to the house. When a government officer

lawfully “seizes” something, narcotics for example, the government takes

possession of the narcotics, retains it until the conclusion of a criminal case, and

6 then destroys it. See, e.g., Dusenbery v. United States, 534 U.S. 161, 163 (2002)

(describing Government’s process of seizing drugs and drug paraphernalia during

a search, retaining them, and disposing of them after criminal case is concluded);

Soviero v. United States, 967 F.2d 791, 792 (2d Cir. 1992), (drug paraphernalia seized

during search retained by Government and destroyed); Lovelace v. United States,

No. 00 Civ. 1274, 2001 WL 984686, at *4 (S.D.N.Y Aug. 27, 2001) (Government may

hold seized property for evidentiary use throughout duration of case). Or when a

government officer lawfully “seizes” property in which contraband has been

stored, the seized property belongs to the government. Luis v. United States, 578

U.S. 5, 13 (2016).

In this case, no one is claiming that Gilhooley took possession of the house

or that his action rendered the house the property of the City of Syracuse.

What Gilhooley did was “secure” the house for the entirely valid purpose

of preventing anyone who might alter, destroy, or remove evidence of a crime

from entering the house. “Securing” implies the temporary nature of the

interruption of the owner’s possessory interest in his property. 6 See Segura v. United

6 I acknowledge that the Supreme Court has called preventing entry into a trailer, serving as a home, a “seizure,” see Illinois v. McArthur, 531 U.S. 326, 329, 330, 331, 333, 334 (2001), and one justice has called such action an “impoundment,” id. at 337 (Souter, J., concurring). I will call what Gilhooley did with respect to Alexander’s house “securing” it, although I do not think that the

7 States, 468 U.S. 796, 808 (1984); United States v. Smith, 967 F.3d 198, 205 (2d Cir.

2020).

The Supreme Court has upheld the temporary securing of a home while a

search warrant was being obtained. Illinois v. McArthur, 531 U.S. 326 (2001). In

McArthur, police officers prevented the owner of a trailer, used as a home, from

entering for about two hours. Id. at 328. The officers had been told that narcotics

were in the trailer. Id. at 329.

The Court concluded that the facts established sufficient “’exigent

circumstances’” to justify the temporary warrantless securing of the home. Id. at

331 (emphasis added). The Court cited United States v. Place, 462 U.S. 696, 701

(1983) with this parenthetical: “(‘(T)he exigencies of the circumstances’ may permit

temporary seizure without warrant.)”. In ruling that the duration of the interval

that the trailer was secured was reasonable, the Court noted that it had previously

upheld the warrantless detention of personal possessions for intervals as brief as

choice of a word has any bearing on the lawfulness of his action. Other courts have called such action “secure” or “secur[ing]” the premises. See, e.g., United States v. Alexander, 573 F.3d 465, 477, 478 (7th Cir. 2009); United States v, Picariello, 568 F.2d 222, 225, 226 (1st Cir 1978); United States v. Guidry, 534 F.2d 1220, 1223 (6th Cir. 1976). Gilhooley described his action as “securing the house pending getting a search warrant.” and stated, “We informed the occupants, including Mr. Alexander, that the house was being secured.”

8 90 minutes, Place, 462 U.S. at 709-10, and as long as 29 hours, United States v. Van

Leeuwen, 397 U.S. 249, 253.(1970). McArthur, 531 U.S. at 332-33.

Even stronger support for securing the house until a warrant could be

obtained is provided by the Supreme Court’s decision in Segura. In that case, the

Court made a critical distinction between the initial warrantless entry, which the

Court assumed without deciding was unlawful, and the subsequent securing of

the house. “We hold, therefore, that securing a dwelling, on the basis of probable

cause, to prevent the destruction or removal of evidence while a search warrant is

being sought is not itself an unreasonable seizure of either the dwelling or its

contents.” Segura, 468 U.S. at 810. “In other words, the initial entry—legal or not—

does not affect the reasonableness of the seizure.” Id. at 811.

Whether or not there were exigent circumstances permitting the

warrantless entry, there was abundant probable cause for securing the premises,

based on what Gilhooley knew about the crimes that had been committed there.

Undisputed evidence established that prior to securing the house, Gilhooley was

informed that it was being used for selling narcotics and facilitating prostitution,

and had been the scene of a brutal sexual assault when Alexander was present in

the house. That knowledge fully justified securing the house, until a search

9 warrant could be obtained, in order to prevent anyone from entering the house

and altering, destroying, or removing evidence of serious crimes. Securing the

house did not violate the Fourth Amendment.

The Court’s opinion misunderstands a crucial point of my dissent when it

says that “there is no separate ‘securing-the-premises’ category of law

enforcement activity that is exempt from Fourth Amendment scrutiny.” Ct. Op. at.

36. I make no claim that securing a home is exempt from Fourth Amendment

limitations. Rather, my point is that securing a home without a warrant to

temporarily exclude entry by those who might alter, remove, or destroy evidence

is a significantly different form of interference with a homeowner’s possessory

interest in his home than an entry and search of a home without a warrant. Of

course, the Fourth Amendment applies to securing a home. But, as Segura fully

explains, Fourth Amendment reasonableness is more easily met when the police

bar people from entering a crime scene than when they enter and conduct a

thorough search.

Alexander’s request for damages because the house was secured is entirely

without merit. To whatever extent he is seeking what would at most be nominal

damage damages for the entry itself, that claim is defeated by the defense of

10 qualified immunity, see infra pp. 12-13, since the Supreme Court in Segura

explicitly declined to rule on the lawfulness of the entry made to lawfully secure a

house. 7

(2) Search of the house after initial entry

The Court remands to permit consideration of Alexander’s claim that

Gilhooley’s search of the house after his initial entry might have violated the

Fourth Amendment. Ct. Op. at 27-33. The Court begins with the undeniable

proposition that a warrantless search of a home is presumptively unreasonable

under the Fourth Amendment. 8 United States v. Simmons, 661 F.3d 151, 156–57 (2d

Cir. 2011). The Court then acknowledges that there are exceptions to the warrant

requirement for entering and searching a home and asserts that in this case only

two exceptions “come into play—consent and exigent circumstances.” Ct. Op. at

28. The Court concludes that Gilhooley did not get consent to enter the home, id.,

and that the exigent circumstance exception is not available, Ct. Op. at 28-35.

In reaching its conclusion concerning exigent circumstances, the Court

focuses on a branch of the exigent circumstances exception that is not involved in

7 Segura, 468 U.S. at 802 n.4. 8 Whether a home being used to conduct a prostitution business and a narcotics business is entitled to the same degree of Fourth Amendment protection as a home serving only as a residence is questionable, but that issue need not be resolved in this case.

11 this case. That branch concerns exigent circumstances that justify a warrantless

entry into, and search of, a home to seize evidence likely to be destroyed, for

example, narcotics likely to be flushed down a toilet. See, e.g., United States v.

Andino, 768 Fed 94, 101 (2d Cir. 2014); United States v. MacDonald, 916 F.2d 766, 770

(2d Cir. 1990).

What the Court ignores is a different branch of the exigent circumstances

exception that is involved in this case. That branch concerns a warrantless entry

into a house that has lawfully been secured, not to search for or seize anything, but

to make sure that no one is in the house who might alter, destroy, or remove

evidence of serious crimes before a search warrant is obtained and to remove

anyone found there. With Gilhooley entitled to prevent anyone from entering the

secured house, he was equally entitled to go into the house and make a limited

search to see if anyone was in the house and remove anyone already there. United

States v. Miller, 430 F.3d 93, 98 (2d Cir. 2005) (law enforcement officers entitled to

sweep premises to determine whether individuals who might pose a threat remain

inside); United States v. Terry, 702 F.2d 299, 319 (2d Cir. 1983) (law enforcement

officers “entitled to make a limited security search of the premises” and to “remain

on the premises to secure the apartment from the destruction of evidence”). It

12 would make no sense to say that police can prevent those outside a secured house

from entering to prevent tampering with, destroying, or removing evidence, but

they are powerless to require those inside the house to leave.

As to the exception for consent, Gilhooley did not need consent to enter

the secured house to remove occupants.

The initial entry into a lawfully secured house and the limited search for

occupants did not violate the Fourth Amendment. Furthermore, no case has ruled

such a limited search unconstitutional (which is understandable); Gilhooley is

therefore entitled to qualified immunity on this claim. See Mullinex v. Luna, 577

U.S. 7, 11-12 (2015).

In a footnote the Court points out that Gilhooley did not assert a qualified

immunity defense on appeal “and therefore could be construed to have forfeited this

argument.” 9 However, the Court does not rule that the defense has been forfeited.

If not ruled forfeited, the defense, which was asserted in the District Court, 10 is

available. And we may affirm on any ground that finds support in the record.

Furthermore, the only case the Court cites in the footnote that involves a

qualified immunity defense makes clear that even when a qualified immunity

9 Ct. Op. at 23 n.9 (emphasis added). 10 See supra p. 2 nn. 1, 2.

13 defense has not been asserted at all, “we nevertheless have the power to consider

it.” Fabrikant v. French, 691 F.3d 193, 212 (2d Cir. 2012) (citation omitted). In

Fabrikant, the defendants had not asserted a qualified immunity defense in any

district court pleading nor raised the defense on appeal. Nonetheless, this Court

considered the defense on the Court’s own initiative when it directed the parties

on remand to brief the issue of qualified immunity. Id. at 204. In City of New York

v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 137 (2d Cir. 2011), also cited by the Court,

we said, “To be sure, the doctrine of forfeiture is prudential and may be

disregarded in our discretion.” If ever there was a case for exercising our discretion

not to invoke forfeiture of a qualified immunity defense, this is it.

(3) Prolonged “seizure” of the house and (4) delay in applying for a search

warrant

The Court reverses summary judgment for Gilhooley on two overlapping

grounds concerning delay. One is the “prolonged seizure” of the house, Ct. Op. at

39. The other is the delay in applying for a search warrant. The Court states, “[T]he

delay between leaving Alexander’s premises at 8:00 p.m. and applying for a search

warrant at 8:30 a.m. remains unexplained.” Id. at 46.

14 This assertion is not so. Gilhooley testified at his deposition that from 8 p.m.

to 10 p.m. he was at the CID preparing an application for three search warrants.

He also testified that he went home at 10 p.m. because his shift had ended. He

further testified that he returned to the CID at 8 a.m. the next morning and from 8

a.m. to 8.30 a.m. completed his single-spaced five page application. The time

period from 8 p.m. to 8:30 a.m. the following morning has been fully explained.

Not presenting this warrant application to a judge until 8:30 a.m. on October

25 did not violate the Fourth Amendment. Gilhooley had spent many hours on

October 24 investigating a brutal crime. He interviewed several witnesses. He

understandably took the time to prepare a detailed application. Judges throughout

the judiciary who often take several weeks and even months to prepare opinions

are not well positioned to assess the time needed to prepare a search warrant

application in a complicated case. Gilhooley was entitled to sleep at his home after

a long workday when his shift ended at 10 p.m. before he returned to the CID at

8:00 a.m. And the record contains no indication that a judicial officer was available

to issue a warrant had the application been presented during the night.

It is not clear when securing the house ended, but that interval appears to

overlap with much of the time that Gilhooley took to apply for the three search

15 warrants. Once police officers were inside the house searching it later on the

morning of October 25, pursuant to a search warrant, nothing in the record

indicates that residents of the house could not then enter.

Even if securing the house lasted for the entire 12.5 hours until Gilhooley

applied for the search warrant, the Supreme Court’s decision in Segura refutes the

claim that the delay was unreasonable. First, the delay in Segura, which the Court

rule was not unreasonable, was 19 hours. 11 Especially pertinent to the pending

case, the Court wrote, “[M]ore than half of the 19-hour delay was between 10 p.m.

and 10 a.m. the following day, when it is reasonable to assume that judicial officers

are not as readily available for consideration of warrant requests.” 12

The Court’s cite to United States v. Smith, 967 F. 3d 198 (2d Cir. 2020), to

support Alexander’s claim is especially perplexing. The delay in obtaining a search

warrant in Smith was one month; in the pending case the delay in applying for a

warrant was at most 12.5 hours. The relevance of Smith escapes me.

Neither the duration of the time that the house was secured nor the time that

Gilhooley took to prepare his warrant application violated the Fourth

11 Segura, 368 U.S. at 801. 12 Id. at 812-13.

16 Furthermore, no case has established a rule that an officer acts

unreasonably when, having secured the scene of a brutal crime at 6:50 in the

evening, he does not apply for a search warrant until 8:30 the following morning. 13

Gilhooley was protected by the defense of qualified immunity. 14 See Mullinex, 577

U.S. at 11-12.

(4) Unlawful search of upstairs rooms in the house

The Court apparently remands to consider a claim that, after the initial

entry, Gilhooley searched the upstairs rooms of the house. Although this claim is

not precisely asserted as a reason for the remand, subsection IA of the Court’s

opinion is captioned “The Initial Warrantless Entry into and Search of Alexander’s

Home.” Ct. Op. at 27. To support this search claim, the Court asserts that “the

record includes evidence that upon entering the house, the officers under

Detective Gilhooley’s direction conducted a room-by-room search, opening

drawers and throwing residents’ belongings around, even after the residents were

13 United States v. Elmore, 101 F.4th 1210 (10th Cir. 2024), on which the Court relies, Ct. Op. at 43, involved an eight-hour daytime interval between securing a home and applying for a search warrant, 101 F.4th at 1214-15, an interval when judicial officers authorized to issue search warrants are available. 14 It would have been preferable for Gilhooley to have permitted the residents of the house

to reenter as soon as the house had been cleared and to assign another officer to remain in the house overnight to guard against others entering and to assure that any residents admitted into the house did not tamper with evidence, but what is preferable is not the measure of constitutionality.

17 removed from their rooms.” Id. at 41 (emphasis in original). For this claim the

Court cites page 22 of the District Court’s docket No. 119-7. Id. That docket number

identifies the deposition of James Jones (“Jones Dep.”). Jones is Alexander’s father.

Jones Dep. at 7. He began living on the second floor of Alexander’s house in 1951,

id., after serving 18 years of a sentence for armed robbery, id. at 13.

In his deposition, Jones recounts that he was in his room on the evening of

October 24 when police officers entered and emptied the bureau drawers in his

room. Id. at 22.

Contrary to the Court’s assertion, however, Jones does not say on page 22

of his deposition nor on any other page that the officers “conducted a room-by-

room search.” In fact, he said, “I don’t know what they were doing in there.” Id. at

8.

Most significantly, despite his motivation to support his son’s claims, in

his 70-page deposition, Jones never names Gilhooley as one of the officers who

searched his room. There is thus no evidence that Gilhooley searched Jones’ room,

much less all of the upstairs rooms.

The Court asserts that officers conducted the upstairs search “under

Detective Gilhooley’s direction.” Ct. Op. at 41. Perhaps the Court is implicitly

18 attributing to Gilhooley the unnamed officers’ search of Jones’ room because

Gilhooley said in his deposition that he “was assigned lead preliminary

investigative responsibilities” for the investigation at the house. 15 However,

supervisory liability of a police officer for a constitutional tort by officers under his

command applies only if the supervisor either directs their unconstitutional action

or fails to prevent it when he is in a position to do so. 16 There is no evidence of

such circumstances in the record.

(5) Looking into and towing Alexander’s cars

The Court affirms the District Court’s grant of summary judgment for

Gilhooley with respect to Alexander’s claim that Gilhooley violated his rights by

15 Gilhooley Dep. at 2, Dist. Ct. Dkt. No. 119-8. 16 Terebesi v. Torreso, 764 F.3d 217, 234 (2d Cir. 2014) (“[A] supervisor may be held liable if he or she was personally a ‘direct participant’ in the constitutional violation. In this Circuit, a ‘direct participant’ includes a person who authorizes, orders, or helps others to do the unlawful acts.”) (citation omitted). The First Circuit has offered an interesting analysis of supervisory liability. “Supervisory liability is sui generis. [A] supervisor may not be held liable under section 1983 on the tort theory of respondeat superior, nor can a supervisor's section 1983 liability rest solely on his position of authority. See Ramírez–Lluveras v. Rivera–Merced, 759 F.3d 10, 19 (1st Cir. 2014). This does not mean, however, that for section 1983 liability to attach, a supervisor must directly engage in a subordinate's unconstitutional behavior. See Camilo–Robles v. Hoyos,151 F.3d 1, 6–7 (1st Cir. 1998). Even so, the supervisor's liability must be premised on his own acts or omissions. See Gutierrez–Rodriguez v. Cartagena, 882 F.2d 553, 562 (1st Cir. 1989); Figueroa v. Aponte–Roque, 864 F.2d 947, 953 (1st Cir.1989). Mere negligence will not suffice: the supervisor's conduct must evince ‘reckless or callous indifference to the constitutional rights of others.’ Febus–Rodríguez v. Betancourt–Lebrón, 14 F.3d 87, 92 (1st Cir. 1994).” Guadalupe-Baez v. PesqueraI, 819 F.3d 509, 515 (1st Cir. 2016).”

19 shining a flashlight into Alexander’s cars that were parked in the driveway and,

upon seeing blood on the seats of two of the cars, having these cars towed for

further inspection. I agree that Gilhooley’s actions did not violate any of

Alexander’s rights.

(6) Arresting Alexander for burglary

The Court remands for further consideration Alexander’s federal and state

law claims based on Gilhooley’s arrest of Alexander for burglary and related

inchoate crimes. Ct. Op. at 49-52.

The evidence is undisputed that, during the interval when Gilhooley had

secured the house, Alexander instructed Tereia Duff to enter the house and retrieve

his cell phone. That entry constituted burglary under New York law.

The Court’s sole reason for remanding Alexander’s claims again Gilhooley

for the burglary arrest and related offenses is that a jury could find that Gilhooley’s

securing the house was unlawful. Id. at 49 (“Detective Gilhooley’s probable cause to

arrest Alexander rises and falls with the lawfulness of his seizure of Alexander’s home.”).

Because, as I have explained, see supra pp. 7-8, securing the house was not

unlawful, there is no reason to reverse the District Court’s grant of summary

judgment to Gilhooley for the burglary arrest. That arrest was fully supported by

undisputed evidence constituting probable cause.

20 (7) Malicious prosecution claims

The Court’s disposition of the malicious prosecution claims against

Gilhooley is not entirely clear. With respect to malicious prosecution for the

burglary charge, the Court rejects the summary judgment for Gilhooley because

of its view that securing (the Court calls it “seizing”) the house could be found to

be unlawful. Ct. Op. at 52. As I have explained, see supra pp. 7-8, I disagree with

that aspect of the Court’s ruling. With respect to the other charges, at first the Court

concludes that “Probable cause plainly supported the drug, sexual assault, and

unlawful imprisonment charges against Alexander,” Ct. Op. at 55, and therefore

“affirm[s] the summary judgment for Gilhooley on these claims,” id. at 52. If that

is the Court’s ruling with respect to these other charges, I agree.

However, the Court ultimately states that “the district court should have

denied summary judgment on Alexander’s § 1983 and New York claims of

malicious prosecution against Detective Gilhooley.” Id. at 58. This statement is just

a repetition of the Court’s view that summary judgment for Gilhooley was not

justified on the malicious prosecution charge for burglary. If that is the Court’s

ruling, I disagree, as already explained.

(8) Claim with respect to detention after posting bail

21 The Court affirms the District Court’s grant of summary judgment to

Gilhooley with respect to Alexander’s claim of detention after posting bail because

Gilhooley had no involvement in that detention. Ct. Op. at 55. I agree.

II. Claims against the City

The Court affirms summary judgment for the City on Alexander’s malicious

prosecution claims, insofar as they are premised on the drug, sexual assault, and

unlawful imprisonment charges. Ct. Op. at 58-59. I agree. However, the Court

“vacate[s] the judgment for the City on the state law malicious prosecution claim

insofar as it derives from the state law claim against Detective Gilhooley.” Id. at

58. Presumably this means that the Court remands Alexander’s malicious

prosecution claim against the City on the basis of state law vicarious liability, see

Lepore v. Town of Greenburgh, 120 A.D.3d 1202, 1204 (2d Dep’t 2014), only because

the Court bases the malicious prosecution claim against Gilhooley on the premise

that securing the house might be shown to have been unlawful. For reasons

explained above, see supra pp. 7-8, I disagree with the Court’s premise. Securing

the house was entirely lawful.

The Court remands one aspect of Alexander’s false imprisonment claims:

the state law claims against the City and County for false imprisonment based

22 on an alleged failure to release Alexander promptly after he posted bonds on the

burglary and the subsequent sexual assault charges. Ct. Op. at 61-63. The Court

faults the District Court for merging Alexander’s section 1983 claims for false

imprisonment with his state law claims. Ct. Op. at 61. This was error, the Court

contends, because “Monell is not a bar to Alexander’s state law claims.” Id.

However, the District Court did not rely on Monell when it granted

summary judgment to the City and the County on Alexander’s false

imprisonment claims. Instead, the District Court made a careful analysis of the

claims and fully explained why summary judgment was warranted. 17 The

District Court’s explanation applies equally to the section 1983 and state law

claims for false imprisonment. I see no error in the District Court’s analysis.

* * * * *

The Court affirms a few portions of the District Court’s judgment, but

remands most of the judgment for further consideration. I would affirm the entire

judgment.

Alexander’s house was a den of prostitution, a base for selling narcotics,

and the scene of a brutal rape committed against a teenager, for whom Alexander

17 Alexander v. City of Syracuse, 573 F. Supp. 3d 711, 735-37 (N.D.N.Y. 2021).

23 was the pimp, when he was in the living room while the rape was being committed

in the basement. The prospect that Alexander will have an opportunity to require

a conscientious police detective to pay him money damages is a bizarre result that

even Kafka could not have imagined.