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Ascenzi v. O'Brien

September 25, 2008

MICHAEL J. ASCENZI, PLAINTIFF,
v.
OFFICER O'BRIEN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge Vanaskie

MEMORANDUM

I. Introduction

On June 14, 2005, Michael J. Ascenzi filed this civil rights action pursuant to 42 U.S.C. § 1983, alleging violations of his Fourth Amendment rights in connection with the issuance and execution of a search warrant of his apartment.*fn1 The search resulted in his arrest for possession of a controlled substance and possession with intent to deliver a controlled substance. Ascenzi subsequently pled guilty to the possession with intent to deliver charge, and the possession charge was nolle prossed. The sole remaining defendant in this action is Pennsylvania State Police ("PSP") Detective O'Brien.

Ascenzi attacks O'Brien's probable cause affidavit used to obtain the search warrant. Specifically, he asserts that O'Brien fabricated key elements of the affidavit and failed to make a statement as to the reliability of his confidential informant ("CI"), whom he allegedly used to make controlled drug buys from Plaintiff. Ascenzi alleges that the CI "used these officers to obtain their money, for his or her addiction to prevent withdrawal from heroin." (Dkt. Entry 1, Complaint at ¶ 14.) Plaintiff alleges O'Brien's CI to be Cassie Price, the sole witness in the Commonwealth's drug case against him. Ascenzi avers Price's prior criminal history and drug addiction made her an unreliable CI, yet O'Brien intentionally and recklessly relied upon her statements to obtain the search warrant. Plaintiff also alleges that the search warrant was unreasonably executed, leaving the home of his elderly father in disarray. (Id.)

Presently before the court are cross motions for summary judgment. For the following reasons, defendant's motion for summary judgment will be granted, and plaintiff's denied.

II. Procedural History

Defendant filed a motion for summary judgment on July 9, 2007. (Dkt. Entry 65.) O'Brien's obligation to brief his potentially dispositive motion was stayed pending the resolution of several discovery disputes. (Dkt. Entry 80, Order.) The stay was lifted on January 23, 2008, (Dkt. Entry 96, Order), and on February 27, 2008, defendant filed a revised Statement of Material Facts, supporting brief, and exhibits in support of the summary judgment motion. (See Dkt. Entries 102 and 103.) Plaintiff then sought, and was granted, additional time to file his opposition materials. (Dkt. Entry 105.) However, in lieu of a response to defendant's motion, on April 17, 2008, Ascenzi filed his own motion for summary judgment. (Dkt. Entry 106.) He simultaneously filed a supporting brief and his own declaration. (Dkt. Entries 107 and 108.) Defendant filed an opposition brief to Ascenzi's Motion for Summary Judgment on June 6, 2008. (Dkt. Entry 114.) Two weeks later, Ascenzi filed a Statement of Material Facts in support of his motion for summary judgment (Dkt. Entry 116), and an amended supporting brief (Dkt. Entry 117). Ascenzi also sought leave to file his opposition to defendant's motion for summary judgment out of time. (Dkt. Entry 118.)

On June 23, 2008, Ascenzi was granted leave to file his opposition to defendant's motion for summary judgment on or before July 11, 2008. (See Dkt. Entry 119.) At the same time defendant was granted leave to file a supplemental response in opposition to Ascenzi's recent statement of facts and amended brief filed in support of his motion for summary judgment. (Id.) Ascenzi filed his opposition to defendant's motion for summary judgment on July 7, 2008. (Dkt. Entry 120.) Defendant then filed an amended brief in opposition to Ascenzi's motion as well as an answer to his statement of undisputed facts. (Dkt. Entries 120 and 121.) On July 25, 2008, defendant filed a reply brief in response to Ascenzi's opposition to their motion for summary judgment. (Dkt. Entry 125.) Ascenzi then filed a motion seeking to file a reply brief out of time, along with the proposed reply brief. (See Dkt. Entries 128 and 129.)

On August 7, 2008, Ascenzi filed a Motion for Enlargement of Time to file a brief in response to O'Brien's reply brief in support of his motion for summary judgment. (Dkt. Entry 130.) He also filed an Answer to Defendant's Answer to his Statement of Facts and a surreply brief in support of his own motion for summary judgment. (Dkt. Entries 132 and 133.) On August 18, 2008, Ascenzi sought an enlargement of time to file his brief in support of his August 7, 2008, motion to file a reply brief in opposition to defendant's brief in support of his summary judgment motion. (Dkt. Entry 134.) More recently, Ascenzi filed an Amendment to his Unsworn Statement, (Dkt. Entry 136), and a "Response to the Defendant's Brief in Support of his Summary Judgment Motion." (Dkt. Entry 137.)

III. Factual Background*fn2

In 2003, an unidentified PSP Trooper in the Vice/Narcotics Unit told Trooper O'Brien about a CI he had worked with in the past. As the Trooper was leaving the unit, the Trooper referred the CI to O'Brien for additional investigations. (Dkt. Entry 103, Defendant's Amended Statement of Material Facts ("DSMF") at ¶ 3). Trooper O'Brien subsequently called and met with the CI. O'Brien is aware that this CI provided reliable information in the past, and in particular, provided information used in a successful drug prosecution. (Id.)

In May 2004, the informant told O'Brien that Ascenzi was trafficking heroin in the city of Nanticoke, Pennsylvania. (Id. at ¶ 4.) O'Brien then ran a criminal history check on Ascenzi and discovered Ascenzi had a prior conviction for selling ten pounds of marijuana. (Id. at ¶ 5.) On May 26, 2004, at the request of O'Brien, and while in his presence, the CI called Asenzi to order heroin. O'Brien heard the informant's side of the telephone conversation. (Id. at ¶ 6.) According to the CI, Ascenzi directed the CI to meet him in a drug store parking lot to pick up the "bundle." (Id. at ¶ 7.) O'Brien, accompanied by the informant, drove to the parking lot, where Ascenzi arrived in a blue pick up truck. (Id. at ¶¶ 7-8.) The informant got into the truck with Ascenzi, drove around the building, and later returned to where O'Brien was waiting. The informant exited the truck and immediately gave O'Brien ten small envelopes containing a brown powdery substance, which later tested positive for heroin. (Id. at ¶¶ 9-11.) O'Brien searched the informant for drugs and money both immediately before and immediately after the informant met with Ascenzi. The informant did not have any drugs before meeting with Ascenzi. (Id. at ¶ 12.)*fn3 The informant did not have any money after meeting with Ascenzi. (Dkt. Entry 114-2, O'Brien Supplemental Decl. at ¶ 9.) O'Brien verified that the blue pick up truck driven by Ascenzi was registered in his name. O'Brien was able to identify Ascenzi as the driver of the vehicle by a photograph already on file with the police. (DSMF at ¶13.)

Ascenzi states he met his former girlfriend, Cassie Price, at the parking lot on May 26, 2004, but only for the purpose of loaning her $40.00 in cash. (Dkt. Entry 107, Ascenzi Decl. at ¶ 5.) Ascenzi believes that Ms. Price is the CI. His belief has not been confirmed by defense counsel.

On May 28, 2004, O'Brien arranged for the CI to call Ascenzi and request another "bundle" of heroin. Again, O'Brien was present during the phone call placed by the CI and heard only the informant's side of the conversation. (Id. at ¶ 14; see also Dkt. Entry 102-2, O'Brien Decl., Exh. A, Incident Report of May 28, 2004, at RR. 11-12.) According to the informant, Ascenzi directed the informant to come to his residence, which was located at the address associated with Ascenzi's truck registration and the phone number dialed by the CI. (Id. at ¶ 15; Dkt. Entry 102-2, O'Brien Decl., Exh. A, Incident Report of May 26, 2004, at R. 11 and Incident Report of May 28, 2004, at R. 14.) O'Brien drove the CI to Ascenzi's home, gave the CI $220.00, and watched the informant walk to the back door of the residence. A short time later, the CI emerged from the home and gave O'Brien ten small envelopes containing a brown powdery substance which later tested positive for heroin. (DSMF at ¶¶ 16-18). O'Brien used the same method to search the informant immediately upon the informant leaving Ascenzi's house. The informant did not have any drugs before entering Ascenzi's residence and returned with no cash. (Id. at ¶ 19; Dkt. Entry 114-2, O'Brien Supplemental Decl. at ¶¶ 10-11.)

Ascenzi claims that Cassie Price left a message on his answering machine on May 28, 2004, stating that she would meet him later that day to repay him the money he loaned her. (Dkt. Entry 107, Ascenzi Decl. at ¶ 10.) Ascenzi states he was home that day but no one came to his home that day between 3:30 p.m. and 4:00 p.m. (Id. at ¶¶ 10-11). The incident report lists 1545, or 3:45 p.m., as the pertinent time. (Dkt. Entry 102-2, O'Brien Decl., Exh. A, Incident Report of May 28, 2004, at R. 14.) Ascenzi also challenges the veracity of the incident report insofar as it reports that the place where the transaction occurred appeared to be a "double block" residence, and Ascenzi lived in a single residence home. Ascenzi also claims that summer foliage would obscure any view of his residence from the rear, where O'Brien states he parked while the transaction was occurring.

During the afternoon of June 24, 2004, O'Brien arranged for the CI to contact Ascenzi and order another "bundle" of heroin. O'Brien was present when the informant placed the call and heard only the informant's side of the conversation. O'Brien then drove the informant to 333 West Union Street, Nanticoke, Ascenzi's residence, gave the CI $220.00, and watched the informant go into the back door of the home. (Id. at ¶¶ 20-23.) The informant came out almost immediately and gave O'Brien ten small envelopes containing a powdery substance, which upon field testing, was positively identified as heroin. Just as before, O'Brien checked the CI for drugs and money immediately before the informant entered Ascenzi's residence and immediately after the informant came out. The informant did not have any drugs before entering the residence. (Id. at ¶¶ 24-26; see also Dkt. Entry 102-2, O'Brien Decl., Exh. A at R. 17, Incident Report of June 24, 2004.)

Ascenzi claims that on the morning of June 24, 2004, he drove to Cassie Price's home and lent her some money. Ascenzi claims he was not home the afternoon of June 24, 2004, as he was "catching some sun rays" in Wilkes-Barre. (Dkt. Entry 107, Ascenzi Decl. at ¶ 13.) Acenzi adds that he was sleeping with Cassie Price at the time. (Id.)

On July 21, 2004, O'Brien prepared an application for a search warrant for 333 West Union Street, Nanticoke, the address to which he had taken the CI to effect the controlled buys. The warrant application was verbally authorized by Assistant District Attorney In-grid Cronin, and was subsequently signed and issued by District Magistrate Malast. (DSMF at ¶ 27.)

O'Brien's affidavit of probable cause was based on the following observations of May 28, 2004 and June 24, 2004: (1) the CI called phone number (570) 735-8468 and spoke with an individual named "Mike" each time; (2) the phone number was registered to Americo Ascenzi at 333 W. Union Street, Nanticoke; (3) the CI requested to purchase a "bundle" of heroin and was informed that the cost would be $220.00; (4) O'Brien and the CI drove to the rear of 333 West Union Street, Nanticoke City; (5) O'Brien provided the CI with $220.00 and observed the informant enter the rear left side door of the residence; (6) a few minutes later the informant was observed leaving the residence and walked immediately to O'Brien's vehicle; (7) the informant provided O'Brien with ten small envelopes containing a brown powdery substance which later ...


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