Ronita McColley
Acting on a tip from an informant, police burst into the Troy apartment of Ronita McColley but found no drugs. (Times Union/John Carl D’Annibale)

An officer’s claim of qualified immunity for relying on a confidential informant to get a no-knock warrant in a fruitless drug search of a woman’s apartment is not reviewable on appeal, the U.S. Court of Appeals for the Second Circuit held Tuesday.

A divided court said it lacked appellate jurisdiction to review the immunity claim of Investigator Michael Riley of the Rensselaer County Drug and Gang Task Force, who is accused of withholding material facts from his search warrant application in 2008.

Qualified immunity claims, which are litigated pretrial, are usually reviewable as an exception to the general rule that federal courts of appeal will not hear an appeal without a final judgment in a case. In the case of McColley v. County of Rensselaer, 12-2220-cv, Northern District Judge Lawrence Kahn (See Profile) had denied Riley’s motion for summary judgment claiming qualified immunity.

The circuit’s decision not to review the matter means that, absent settlement, the case will go to trial, where Riley’s attorneys will have to assert as a defense that he had probable cause to enter Ronita McColley’s home on July 3, 2008.

Prior to that date, Riley had secured his information from a confidential informant who made drug buys at four locations from two men called “Stink” and “Sport.”

At three of the locations, the informant made several controlled drug buys. At the fourth location, McColley’s apartment, the informant had made only one purchase. When Riley asked the informant if “Stink” had custody and control of the apartment, the informant answered “yes” but never mentioned McColley.

Riley and his supervisor then placed the apartment under stationary and drive-by surveillance but saw no criminal activity. When Riley ran a background check, he learned McColley—a woman with a young child and no criminal history—was living there.

But based on the informant’s information, Riley secured “no-knock” search warrants for all four apartments from the City of Troy Criminal Court, and at 6 a.m., the police department’s Emergency Response Team knocked down McColley’s door with a flash-bang grenade.

Officers dressed in black, wearing face masks and carrying automatic weapons burst through the door and screamed for McColley to get down. One of the officers shoved McColley, who was alone in the apartment with her young daughter, onto the bed.

Wearing only a T-shirt and underwear, McColley said she asked several times to be allowed to cover herself but was denied.

The response team found no drugs in the apartment and McColley sued in the Northern District. On the motion for summary judgment, Riley claimed immunity, arguing that, even if there were omissions in the warrant application, they did not undermine the fact that he had probable cause.

But Kahn said a denial of immunity was warranted because of the severity of the omissions—that McColley was never identified as the resident of the apartment and that surveillance had not revealed any criminal activity.

So Kahn denied immunity on a Fourth Amendment claim against Riley and state tort claims against Riley and the county.

Riley appealed to the Second Circuit and, on Tuesday, Judges Rosemary Pooler (See Profile) and Guido Calabresi (See Profile) said there was no jurisdiction. Judge Reena Raggi (See Profile) dissented.

Riley “fully knew that McColley, an individual with no criminal history and no purported ties to the targets of the drug investigation, lived there with her child,” Pooler said for the majority. “Especially in the face of Riley’s inclusion of the identity of the residents for each of the other apartments and their present connection to the drug trade, the omissions of McColley’s existence is all the more glaring.”

The omission, she said, “made it appear as if Stink was the only individual with custody and control” of the apartment, and, had the residents been properly identified, “a reasonable issuing judge would have questioned” that assertion.

Pooler then addressed the surveillance.

While police are not required to corroborate the claims of a confidential informant, “once they undertook this surveillance and observed no such criminal activity, this lack of corroboration should have been included in the warrant application.”

Pooler noted that, had the police had corroboration, they would have included that “damning” fact in their application, so “The mere fact that the outcome of the surveillance was not the one the police would have preferred does not render the information immaterial.”

And the failure to include it “goes directly to the credibility” of the confidential informant, a critical part of the court’s analysis of the “totality of the circumstances” when warrants are obtained based on information provided by a police cooperator.

In a 39-page dissent, Raggi said that, even if the omitted information were included, there would have been probable cause to search as a matter of law.

“Even if there were any doubt as to actual probable cause or reasonable suspicions in this case—which I submit there is not—the determinative issue for purposes of qualified immunity is not what weight the issuing judge would assign to omitted facts in reviewing a corrected affidavit,” Raggi said, “but whether an officer in defendant’s position could have held an objectively reasonable—even if mistaken—belief that the corrected affidavit demonstrated the necessary probable cause and reasonable suspicion.”

Calabresi issued a 27-page concurring opinion saying that the difference between Pooler’s take on the case and Raggi’s reflects the Second Circuit’s own “divided” precedents in this area of the law.

Calabresi said the issue was not only whether the court would have issued a warrant, but whether it would have issued the “precise kind of warrant Riley sought and obtained—namely a ‘no-knock’ warrant to be executed at any time of the day or night.”

Crystal Peck of Bailey, Kelleher & Johnson in Albany argued for the defendants.

Gennaro Calabrese of Kindlon Shanks & Associates argued for McColley. Terrence Kindlon was on the brief.