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SEWELL v. DEVER

March 1, 1984

PHILLIP SEWELL, GORDON SEWELL and NONA SEWELL, his wife, SAMANTHA NICHOLS, by R. M. Nichols, Plaintiffs,
v.
MERRILL DEVER, Individually and as Chief of the Police Department of the Township of Millcreek, PETER BRICKER, Individually and as Millcreek Township Supervisor, ARTHUR DETISCH, Individually and as Millcreek Township Supervisor, UNKNOWN DEFENDANTS, Certain Designated Persons who at this time are unknown but were present at or about 10:00 P.M. until 12:00 Midnight on August 28, 1982 at the Millcreek Municipal Building, HENRY MIRALDI, Individually and as a Police Officer and Detective in the Millcreek Township Police Department, THE TOWNSHIP OF MILLCREEK, Defendants



The opinion of the court was delivered by: MENCER

 This is an action for relief under the Civil Rights Act of 1871, 42 U.S.C. § 1983, for alleged constitutional deprivations. The court has before it cross motions for summary judgment and plaintiffs' motion to strike the affidavit of Michael J. Veshecco. In addition to the motions, the parties have submitted affidavits and briefs in support of their respective positions and the depositions of the major witnesses are on file with the court.

 Motion to strike affidavit of Michael J. Veshecco

 The plaintiffs have moved to strike the affidavit of Michael J. Veshecco submitted by defendants in support of their motion for summary judgment. The plaintiffs claim the affidavit is in violation of Rule 56(e) of the Federal Rules of Civil Procedure because it is not made on personal knowledge. The motion will be denied. Supporting affidavits must be made on personal knowledge in order to avoid a motion to strike. See Fed.R.Civ.P. 56(e). Veshecco's affidavit meets this requirement. He is the Erie County district attorney and was called by Officer Miraldi for an opinion whether probable cause existed to arrest and search Phillip Sewell. The affidavit sets out the facts Veshecco had available to him at the time he expressed the opinion that probable cause existed both to arrest and search Phillip. The affidavit proves nothing other than the fact that Veshecco was asked to give an opinion based on some known facts and that he gave one and, thus, may be of little value to the defendants' case. It does, however, suffice to avoid this motion to strike.

 Motions for summary judgment

 Officer Miraldi

 A. Unreasonable search

 The plaintiffs' complaint, despite its incantation of numerous alleged constitutional violations, must be read as a claim under the fourth amendment, as incorporated through the due process clause of the fourteenth amendment, for unreasonable search and seizure. E.g., Wolf v. Colorado, 338 U.S. 25, 93 L. Ed. 1782, 69 S. Ct. 1359 (1949). *fn1"

 The acts complained of are alleged to have been "willful wanton and malicious" and in "wreckless (sic) disregard" of plaintiffs' constitutional rights. Section 1983, however, affords a civil remedy for deprivations of federally protected rights caused by persons acting under color of state law without stating a requirement of a particular state of mind of the actor. Parratt v. Taylor, 451 U.S. 527, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981). Our inquiry here, as in all § 1983 actions, must focus initially on two essential elements: (1) whether the conduct complained of was committed by a person acting under color of state law; and (2) whether this conduct deprived the plaintiff of rights, privileges, or immunities secured by the Constitution or laws of the United States. Id. at 535. The alleged conduct by Officer Miraldi satisfies the first of these two elements. Monroe v. Pape, 365 U.S. 167, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1961), rev'd on other grounds, Monell v. Department of Social Services, 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). The proper focus of inquiry here must therefore be whether Officer Miraldi deprived the plaintiffs of their right to be free from unreasonable searches and seizures. Parratt, 451 U.S. at 536.

 There can be little doubt that Phillip was seized by Officer Miraldi within the meaning of the Constitution when he was stopped, asked to reveal his identity, placed in a Township police cruiser and transported to the police station in the company of Officer Miraldi. Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). The defendants contend that he accompanied the officer voluntarily and that, as a result, no arrest or seizure was effectuated. We find that given the totality of all the circumstances, including Sewell's age and lack of experience in dealing with law enforcement officials, he did not go to the Millcreek police station voluntarily. United States v. Mendenhall, 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1870 (1980). The issue is thus reduced to whether the seizure of Phillip Sewell was unreasonable.

 The fourth amendment does not require a warrant to make a valid arrest for a felony. United States v. Watson, 423 U.S. 411, 46 L. Ed. 2d 598, 96 S. Ct. 820 (1976). Warrantless arrests must, however, be supported by probable cause, Dunaway v. New York, 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248 (1979), and, an arrest without probable cause is a constitutional violation actionable under § 1983. Patzig v. O'Neil, 577 F.2d 841, 848 (1978).

 "Probable cause exists where 'the facts and circumstances within their [the officers'] knowledge, and of which they had reasonably trustworthy information, [are] sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed." Brinegar v. United States, 338 U.S. 160, 175-76, 93 L. Ed. 1879, 69 S. Ct. 1302 (1949), quoting Carroll v. United States, 267 U.S. 132, 162, 69 L. Ed. 543, 45 S. Ct. 280 (1925). The United States Court of Appeals for the Third Circuit has ruled that the question of probable cause in a § 1983 damage suit is one for the jury. Patzig, 577 F.2d at 848. Cf. Jones v. Waters, 570 F. Supp. 1292 (E.D.Pa. 1983) (undisputed affidavits in support of motion for summary judgment so clearly establish probable cause that no reasonable jury could conclude otherwise). This case must go to a jury on the issue of probable cause. The facts now in the record do not "so clearly establish probable cause" that a jury could not reasonably find it lacking; in fact, the record indicates that Officer Miraldi was sufficiently uncertain of the strength of his position to call the Erie County district attorney for an opinion ...


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