Santos v. Zabbara

984 F. Supp. 2d 106, 2013 WL 5797710, 2013 U.S. Dist. LEXIS 154338
CourtDistrict Court, E.D. New York
DecidedOctober 28, 2013
DocketNo. 11-CV-2516 (PKC)
StatusPublished
Cited by2 cases

This text of 984 F. Supp. 2d 106 (Santos v. Zabbara) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Santos v. Zabbara, 984 F. Supp. 2d 106, 2013 WL 5797710, 2013 U.S. Dist. LEXIS 154338 (E.D.N.Y. 2013).

Opinion

MEMORANDUM & ORDER

PAMELA K. CHEN, District Judge:

This case is all about chickens: at the crack of dawn, officers from the Suffolk County Police Department (the “SCPD”) searched Plaintiff Jose M. Santos’s (“Santos”) residence for “chickens,” code for cocaine, and instead seized actual chickens. (Dkt. No. 1 (“Compl.”) ¶¶ 14-35; Dkt. Nos. 27-3-27-8 (“Defs. Exs.”), Ex. D, at 115 ¶ 164, 117 ¶ 169.) Santos, along with his wife and children (collectively, the “Plaintiffs”), brought suit under 42 U.S.C. § 1983 (“Section 1983”) against several of the SCPD officers in the Narcotics Section 1 (the “Defendants”) for their role in issuing and executing the warrant for this search and subsequent seizure,2 claiming violations of their Fourth Amendment rights to be free from unreasonable searches and seizures.3 (Compl. ¶¶ 1, 37-44.)

Defendants now move for summary judgment dismissing Plaintiffs’ Section 1983 claims (the “Motion”). (Dkt. No. 27.) This Court grants the Motion, for the reasons set forth below.

I. Background

A. The Facts 4

On May 5, 2009, Judge James C. Hudson of the Supreme Court of New York, [110]*110Suffolk County (“New York Supreme Court”), issued a warrant to search the “entire premises” of Santos’s residence at 105 Homestead Drive in Coram, New York,5 without knocking and announcing prior to entry. (Defs. 56.1 ¶¶ 1, 5.) The search warrant described Santos’s residence as a two-story house with a tan-and-gray-stone exterior and covered patio with white columns, sitting on property surrounded by a chain-link fence. (Defs. Ex. C, at 1.) The search warrant was based on the affidavit submitted by Defendant Joseph Zabbara (“Officer Zabbara”).6 (Id. ¶1.)

The affidavit represented that an investigation by the SCPD, starting in July 2008, revealed a web of drug organizations in Coram involving various participants in the sale and resale of cocaine and prescription drugs. (Defs. Ex. D, at 54-56 ¶ 59, 159-60 ¶ 250.) This investigation also revealed that three of these participants were Santos’s own brothers: Jose E. Santos (“Jose”), Guillermo Santos (“Guillermo”), and Danny Santos (“Danny”) (collectively, the “other Santos brothers”). (Id. at 83 ¶ 103, 89-90 ¶ 117; Pis. Ex. G, at 16.)

According to the affidavit, the SCPD’s investigation, through telephonic intercepts and direct surveillance, suggested that these drug organizations were operating out of several different properties. (Defs. Ex. D, at 159-60 ¶ 250.) The affidavit cited particularized findings from this investigation to support its theory that the organization to which the other Santos brothers belonged “operated, in part, out of [Santos’s] residence at 105 Homestead [Drive], Coram, Suffolk County, New York”; and that this organization used Santos’s residence “to store quantities of cocaine, to meet with other coconspirators and to conduct their sales of cocaine and prescription pills” (id. at 89-90 ¶ 117):

• On March 5, 2009, around 8 PM, the SCPD recorded a telephone call between Jose and Danny: the two brothers agreed to meet “over at Marcel’s ... where the roosters are,”7 after Danny asked about “ten more hard.” The SCPD confirmed this meeting by subsequently observing that Danny’s car arrived at and departed from 105 Homestead Drive, and that Jose’s car was already parked outside. According to the affidavit, the brothers met at Santos’s, “aka Marcel’s,” residence, so that Jose could supply Danny “a quantity of crack cocaine, which they referred to as ‘ten hard.’ ” (Id. at 82-84 ¶¶ 102-104.)
[111]*111• On March 29, 2009, in the late afternoon, the SCPD recorded several telephone calls between Jose and Jorge Corona (“Jorge”). On the first call, Jorge reported that he had remaining “four balls, nine hard and thirteen softies,” and Jose suggested that they would thus require more of the “hard.” Both men agreed to “see each other at Marcel’s.” Shortly after Jorge arrived at “Marcel’s,” Jose said, on another call, “don’t you guys go in there, get out.” The affidavit represented that the two men were planning to meet at Santos’s, “aka Marcel’s,” residence, because Jorge, who worked for Jose, had sold certain amounts of cocaine and specifically needed more crack cocaine. Jose, however, became worried about the police watching Santos’s residence, and so he instructed Jorge to stay outside. (Id. at 84-86 ¶¶ 105-108.)
• On April 9, 2009, around 1:30 PM, the SCPD recorded a telephone call, during which Guillermo asked his brother Jose whether he was going “[t]o where Marcel is to pick up the stuff.” The affidavit represented that the “stuff’ referred to some “quantity of cocaine” at Santos’s, “aka Marcel’s,” residence. (Id. at 86-87 ¶¶ 109-10.)
• On April 28, 2009, in the late afternoon and early evening, the SCPD recorded several telephone calls and text messages between Danny and Chris Caro (“Chris”), another alleged participant. Danny texted Chris saying, “I’ve got you 45 10s for now.” Chris later called to see if Danny had “anything more than that tonight,” and informed Danny that, although “I’ll pick those up now, I’m definitely going to need more.” The two men conversed again in an hour, at which time Danny directed Chris to turn left onto “Homestead drive.” After Chris turned onto Homestead Drive, Danny said, “I’m at one oh five, just uh go down the road.” According to the affidavit, Danny directed Chris to meet him at Santos’s residence to pick up the “45 10s,” meaning 45 Percocet pills. (Id. at 87-89 ¶¶ 1 lile.)

The affidavit thus claimed that the SCPD had “probable cause” to search— among the properties implicated by this investigation — the residence at 105 Homestead Drive, which was “occupied by Jose M. Santos aka Marcel and other persons as yet unknown” but used by “Jose E. Santos ... and his co-conspirators” to operate their drug organization. (Id. at 145 ¶ 224, 152-53 ¶239, 168 ¶264.) Such a search could potentially produce relevant evidence, including (i) cocaine and prescription drugs, (ii) supplies for storing, weighing, and packaging these drugs, and/or (iii) proceeds and records from the sale of these drugs.8 (Id.)

[112]*112Plaintiffs, however, allege that the affidavit omitted information showing that Santos “was not connected in any way to the alleged drug transactions or conspiracy,” which they argue would have defeated the New York Supreme Court judge’s probable cause determination (Dkt. No. 29 (“Pis. Br.”), at 4-6):

• The SCPD recorded telephone calls on which Santos participated, including calls with the other Santos brothers. None of these calls involved conversations regarding, or the use of code for, drugs. (Pis. Ex. G, at 15-20.)
• The SCPD had not observed Santos at any of the “undercover buys” or “hand-to-hand transactions” during its investigation. (Id. at 23, 31.)

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Cite This Page — Counsel Stack

Bluebook (online)
984 F. Supp. 2d 106, 2013 WL 5797710, 2013 U.S. Dist. LEXIS 154338, Counsel Stack Legal Research, https://law.counselstack.com/opinion/santos-v-zabbara-nyed-2013.