Opinion
No. CV00-0499843S
July 9, 2003
MEMORANDUM OF DECISION
The plaintiff has sued two members of the Plainville Fire Department and two members of the Plainville police department in a multi-count complaint alleging an illegal search and false arrest. The defendants have moved for summary judgment.
The facts in the affidavits and other documents show as follows: On December 27, 1996, an anonymous waitress at a restaurant in Plainville called the fire department to report that she overheard the plaintiff say that he was to going to burn down a "run-down" house on Broad Street in Plainville. The defendants proceeded to the plaintiff's home, concluding that the caller had referred to the one house on this street that was in a debilitated state. They knocked, but receiving no response. They then entered to find a Christmas tree near a halogen lamp with a paper plate on top of the reflector and the lamp attached to a timer. There were stockings stuffed with newspaper hanging over the tree. The site was treated as a crime scene and a search warrant was obtained from a judge.
After an investigation lasting two weeks, the police department applied for an arrest warrant that was signed by a judge, and the plaintiff was arrested on an attempted arson charge, and an attempted larceny charge, §§ 53a-111, 53a-122, and 53a-49. A judge denied a motion to suppress the material seized on the entry to the plaintiff's home on December 27, 1996. At trial the plaintiff was acquitted. He then commenced this lawsuit. The plaintiff alleges that the defendants' conduct violated Article First, section seven of the Connecticut Constitution for the unlawful search of his home (count one), false arrest (count two), violation of Article First, section nine of the Connecticut Constitution for unlawful arrest (count three), malicious prosecution (count four), intentional infliction of emotional distress (count five), and negligent infliction of emotional distress (count six). The seventh and eighth counts against the town of Plainville are derivative actions based upon the other counts.
The defendants have moved for summary judgment on all counts. "Summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Practice Book § 17-49. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Citation omitted; internal quotation marks omitted.) Barry v. Quality Steel Products, Inc., 263 Conn. 424, 450 (2003). "In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500 (1988). "It was the plaintiff's burden to file an affidavit reciting relevant evidentiary matter to establish the existence of a genuine issue as to a material fact." Taricani v. Nationwide Mutual Ins. Co., 77 Conn. App. 139, 152 (2003). "Simply, the granting of summary judgment is appropriate only if a fair and reasonable person could conclude only one way. (Citation omitted; internal quotation marks omitted.) Kopacz v. Day Kimball Hospital, 64 Conn. App. 263, 267 (2001).
The plaintiff's first count alleges that the defendants conducted an illegal search of his premises under Article First, section seven of the Connecticut Constitution. See Binette v. Sabo, 244 Conn. 24 (1998). The defendants move for summary judgment alleging that they have satisfied an exception to the warrantless search — the "Community Caretaker" doctrine. The plaintiff has denied that this doctrine applies. The court finds that there are genuine issues of material fact that preclude the granting of summary judgment on this count, specifically whether there was an immediate need to enter the plaintiff's home. Bastian v. DiPaola, 32 Conn.L.Rptr. 533, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 98 0418322 (July 24, 2002, Booth, J.) (summary judgment inappropriate in civil rights suit for warrantless search); Ewolski v. City of Brunswick, 287 F.3d 492, 501 (6th Cir. 2002) (exigent circumstances are normally a question for jury); Bell v. Irwin, 321 F.3d 637 (7th Cir. 2003) (alleged fourth amendment violation with dispute of material fact is jury issue).
The defendants point to the reliability of the informer who knew the plaintiff's name, including its spelling with a "K," knew that the fire was to occur between 12:00 Midnight and 2:00 A.M. and was able to describe the location of the premises. The search was limited to disengaging the timer device and then a search warrant was obtained. The plaintiff notes that he was not at home when the entry occurred, the defendants merely guessed that his house was the one in question, that no fire truck was sent to the scene, that there was nothing unusual, such as smoke, at his home. The informant told the defendants at about 10:00 P.M. that the fire would happen in two hours, yet no effort was made to obtain a warrant.
The defendants refer to the finding by the Superior Court judge during the criminal proceedings that the premises were properly entered. But this ruling cannot bind the subsequent determination of civil liability. See Golino v. City of New Haven, 950 F.2d 864, 869 (2d Cir. 1991) (recognizing limited nature of the pre-trial hearing in criminal proceeding). The suppression hearing here did not encompass the issues raised in this civil case such that it is entitled to collateral estoppel.
The plaintiff's second count alleges false arrest, the third count is a claim for violation of Article First, section nine in keeping with Binette v. Sabo, supra, and the fourth count is a claim for malicious prosecution. The court grants summary judgment for the defendants on these counts. Each of these counts attack the validity of the plaintiff's arrest. But the arrest was undertaken pursuant to a warrant signed by a judge and there is a presumption of legality. Outlaw v. City of Meriden, 43 Conn. App. 387, 393 (1996).
The presumption of legality may be overcome by a showing that the officers who submitted an affidavit to the neutral magistrate gave false statements or excluded information that was critical to the probable cause determination. Golino v. New Haven, supra, at 871. Here the plaintiff claims that the defendants did not inform the judge that the lamp and timer were in the "off" position at the time of seizure, that the defendants had experimented unsuccessfully with the device to see if it would start a fire, and that certain witnesses were unreliable. On the other hand the uncontested evidence at the plaintiff's criminal trial was that the device was turned on and that the experiments caused a small fire. The witnesses gave their testimony under oath to the police when they applied for the arrest warrant.
In addition, the primary crime charged was that of "attempted arson" which did not require that a fire actually occur. Thus, there is no material fact in dispute. "A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556 (2002). The judicial magistrate would still have issued the warrant had he known these additional details. Crone v. Connelly, 74 Conn. App. 788 (2003), cert. granted, 263 Conn. 902 (2003).
Under counts five and six, the plaintiff claims both intentional and negligent infliction of emotional harm for the warrantless search and the subsequent arrest. The court has granted summary judgment on the arrest counts. With regard to the warrantless search, the court concludes that the plaintiff cannot prove that the entry by the defendants was sufficiently outrageous (the standard for intentional infliction) or amounted to an unreasonable risk (negligent infliction). Two cases from the Federal District Court, interpreting Connecticut law, are relevant.
In Rzayeva v. Foster, 134 F. Sup.2d 239 (D. Conn. 2001), a policeman entered the plaintiff's home at 10:00 P.M. while she was clad only in a nightgown to discuss a threatening letter she had written. A confrontation ensued that led to her arrest. Later she brought suit for the warrantless entry, on which the judge denied summary judgment and permitted to proceed to trial. The plaintiff also sought damages for intentional infliction and negligent infliction of emotional distress. The court granted summary judgment on these claims. The police officer's conduct of "unlawfully entering her apartment where he saw her in her nightgown" did not rise to the level of "`extreme and outrageous' conduct of a nature especially calculated to cause mental distress of a very serious kind, which is required to sustain a claim of intentional infliction of emotional distress." Id. at 250. Nor did this nocturnal discussion involve "an unreasonable risk of causing emotional distress and that distress, if it was caused, might result in illness or bodily harm." Id. at 251, quoting Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 345 (1978).
In Silberberg v. Lynberg, 186 F. Sup.2d 157 (D. Conn. 2002), the plaintiff had been acquitted of a drug charge and sought damages for both intentional and negligent infliction. The plaintiff stated in his deposition that the possibility of conviction was "still on my mind." This was not sufficient evidence to show mental distress of a very serious kind. Even a feeling of "great humiliation" or "depression" was not enough. Id. at 176. Nor was there conduct at a level involving an unreasonable risk of causing emotional distress. Id. at 177.
In the plaintiff's affidavit, he does not address the effects of the search at all. With regard to the arrest, he mentions the cost of his defense and the loss of his reputation in the community. Following the cases referred to above, the plaintiff has not met the standards of outrageousness or unreasonable risk needed to defeat the motion for summary judgment. Cf. Balogh v. City of Shelton, 31 Conn.L.Rptr. 566, Superior Court, judicial district of Ansonia/Milford at Milford, Docket No. CV 99 0067521S (March 18, 2002, Alander, J.) (plaintiff's affidavit described confrontation with police and its effect).
Since the court has not granted summary judgment on the first count, counts seven and eight may continue against the town of Plainville on the warrantless search issue. In conclusion the defendants' motion for summary judgment is denied as to count one and in part as to counts seven and eight, and is granted as to counts two, three, four, five and six.
So ordered.
Henry S. Cohn, Judge