Policing and Public Transportation (2022)

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TCRP LRD 58 15 or was a “transit recidivist” because of a prior conviction of a transit-related offense.153 As the officers were arresting him, Var- gas dropped a marijuana cigarette. Because the operative language in the Fourth Amendment and the New York Constitution, Article I, Section 12, is identi- cal, the two provisions generally confer similar rights;154 thus, under New York law, the officers had probable cause to arrest Vargas. The court also rejected Vargas’s argument that the of- ficers were not justified in detaining him while conducting a record check. B. An Arrest Compared to an “Investigative Stop” Unless an exception applies, warrantless searches and sei- zures are per se unreasonable and violate the Fourth Amend- ment.155 An exception to the foregoing rule is an “investigative stop” permitted by the Supreme Court’s decision in Terry v. Ohio.156 However, for a valid Terry stop, a police officer must have a “reasonable and articulable suspicion, based on specific, objective facts, that the person seized has committed or is about to commit a crime.”157 In State v. Pigger,158 the Washington Court of Appeals held that the stop in question was not a valid stop under the Terry precedent. Deputy Nix responded to a dispatch about a man who “had refused to show identification to fare enforcement of- ficers when confronted about a possible fare evasion.”159 Deputy Nix detained Pigger by grabbing his arm. The state argued that Deputy Nix conducted a valid Terry stop consistent with the Supreme Court’s decision in Terry.160 However, Deputy Nix did not have a basis on which to believe that Pigger had previously evaded paying a fare.161 A “mere hunch” is not sufficient for a lawful Terry stop.162 In contrast to the Pigger case, in GeorgiaCarry.com, Inc. v. MARTA,163 a federal district court in Georgia held that a MARTA police officer (Nicholas) responded properly when he saw an individual (Raissi) take a handgun in a holster, conceal it, and walk toward a MARTA station.164 After Raissi purchased his ticket, Officer Nicholas stopped Raissi. After a background check, which was clear, Officer Nicholas returned Raissi’s iden- tification and firearms license but did not immediately return 153 Vargas, 56 N.Y.S.3d at 440. 154 Id. at 445 (citation omitted). 155 State v. Pigger, 2013 Wash. App. LEXIS 2705, at *1, 5 ¶ 4 (Wash. Ct. App. 2013) (footnote omitted). 156 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed.2d 889 (1968) (holding that the “Stop and Frisk” tactics that were used were reasonable under the circumstances). 157 Pigger, 2013 Wash. App. LEXIS 2705, at *5 ¶ 9 (footnote omitted). 158 2013 Wash. App. LEXIS 2705, at *1 (Wash. Ct. App. 2013). 159 Id. at *1 ¶ 1. 160 Id. 161 Id. at *6 ¶ 11. 162 Id. at *2 ¶ 2. 163 2009 U.S. Dist. LEXIS 117989, at *1 (N.D. Ga.2009). 164 The court described the co-plaintiff GeorgiaCarry.com, Inc. as a public advocacy group. whether the officer’s mistake was objectively reasonable under the circumstances.146 PART II – Liability under § 1983 for Alleged False Arrest or False Imprisonment, Unlawful Searches and Seizures, Use of Excessive Force, Malicious Prosecution or Abuse of Process, Invasion of Privacy, or Failure of an Officer to Intervene to Prevent Another Officer’s Civil Rights Violations V. LIABILITY UNDER THE FOURTH AMENDMENT IN § 1983 ACTIONS FOR FALSE ARREST OR FALSE IMPRISONMENT A. Required Elements to Prove False Arrest or False Imprisonment As the court stated in Vargas v. City of New York,147 “‘[t]he law is settled that an arrest occurs when an individual is not at liberty to walk away.’”148 A plaintiff bringing a § 1983 action for false arrest must prove that: (a) the defendant intended to confine him; (b) the plaintiff was conscious of the confinement; (c) the plaintiff did not consent to the confinement; and (d) the confinement was not otherwise privileged.149 The elements of a § 1983 claim for false arrest and for false imprisonment are sub- stantially the same as “‘the central issue is whether the arresting officer was justified in ordering the arrest….’”150 If a police officer instigates an arrest based on information that the officer knows to be false, the officer may be held liable under § 1983 for false arrest.151 In a § 1983 action, when there are disputed issues of fact regarding an arrest and whether there was probable cause for the arrest, a jury has to decide the dis- puted issues.152 In Vargas, two officers (Buith and Singh) stopped the plain- tiff after they observed Vargas pass between two cars on a mov- ing subway train in violation of 21 N.Y. CRR 1050.9. Buith determined that Vargas either was subject to an open warrant 146 Professor Henning’s article posits that, after the Court’s decision in Heien, it is not clear “what constitutes an objectively reasonable mis- take of law for purposes of the Fourth Amendment and how that understanding should relate to any conclusion with respect to the good faith exception to the exclusionary rule.” Id. at 302 (footnote omitted) (emphasis supplied). The article argues, however, that courts are “cor- rectly not considering the good faith exception once they conclude that there was an unreasonable mistake of law by the police. In short, an unreasonable mistake of law renders the good faith exception not appli- cable.” Id. at 273-274 (emphasis supplied). 147 56 N.Y.S.3d 438, 443 (S. Ct., N.Y. Cnty. 2017) (holding that offi- cers had probable cause) (citations omitted), aff’d, 2019 N.Y. App. Div. LEXIS 380, at *1 (N.Y. App. Div., 1st Dep’t. 2019), leave to appeal denied, 2020 N.Y. LEXIS 730 (N.Y., Mar. 31, 2020). 148 Id. 443 (citations omitted). 149 Moroughan, 514 F. Supp.3d at 516 (citation omitted). 150 Cutchin, 369 F. Supp.3d at 120 (citation omitted). 151 Moroughan, 514 F. Supp.3d at 517 (citations omitted). 152 See id. at 543, FN 31.