Judge Harold Baer
Based on the tip of an apartment building security guard, New York police supervised by Sarracino patted down two men but found no gun. Sarracino then knocked on the door of Gannon’s apartmentwhere the men were headedand, despite Gannon’s objection, conducted a full search absent warrant or consent. Weapons were found. Gannon was arrested and charged with possession. He was indicted and incarcerated until released on bail. Suppression was granted, and the case against Gannon was dismissed. Gannon’s amended complaint alleged unlawful seizure under 42 USC §1983, and malicious prosecution under state law. The court dismissed Gannon’s unlawful seizure claim based on his incarceration before bail. Discussing Townes v. City of New York, it noted the Second Circuit rejected attempts to recover damages under §1983 based on the “fruits of the poisonous tree” doctrine. However, discussing the circuit’s ruling in Boyd v. City of New York, the court denied dismissal of Gannon’s malicious prosecution claim, concluding Gannon alleged sufficient facts to raise the prospect that Sarracino lied about the circumstances of the search in order to secure Gannon’s indictment.
