18‐543‐cv
Dalessandro v. County of Nassau
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
(WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
Square, in the City of New York, on the 10th day of January, two thousand
nineteen.
PRESENT: DENNIS JACOBS,
REENA RAGGI,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐X
WILLIAM DALESSANDRO, JOSEPHINE
DALESSANDRO,
Plaintiffs‐Appellants,
‐v.‐ 18‐543
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COUNTY OF NASSAU,
Defendant‐Counter‐Claimant‐Cross‐
Defendant‐Appellee,
LEONARD VIVONA, THOMAS CIPOLLA,
DAVID JASKOLSKI,
Defendants‐Cross‐Defendants‐
Appellees,
THE INCORPORATED VILLAGE OF
PLANDOME,
Defendant‐Counter‐Claimant‐Cross‐
Defendant,
PETER CHUCHUL, NASSAU COUNTY POLICE
OFFICER, JOHN DOE,
Defendants‐Cross‐Defendants.*
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐X
FOR APPELLANTS: Paul D. Montclare, Mitchell Silberberg &
Knupp LLP, New York, NY.
FOR APPELLEES: Robert F. Van der Waag, Deputy County
Attorney, for Jared A. Kasschau, County
Attorney of Nassau County, Mineola, NY.
Appeal from a judgment of the United States District Court for the Eastern
District of New York (Azrack, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED AND DECREED that the judgment of the district court be
AFFIRMED.
* The Clerk of Court is directed to amend the caption as set out above.
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At 4:30 AM on December 23, 2012, Nassau County police officers made a
warrantless entry into the home of William and Josephine Dalessandro.
Alleging the search violated their Fourth Amendment rights, the Dalessandros
sought damages pursuant to 42 U.S.C. § 1983. Following a three‐day trial in the
United States District Court for the Eastern District of New York (Azrack, J.), the
jury returned a verdict in favor of the defendants, the County of Nassau and
Nassau County police officers Leonard Vivona, Thomas Cipolla and David
Jaskolski. The Dalessandros appeal from the judgment of the district court
denying their post‐trial motions for (1) judgment as a matter of law and (2) a new
trial. We assume the parties’ familiarity with the underlying facts and
procedural history.
1. “A denial of a Rule 59 motion for a new trial is reviewed for abuse of
discretion, which occurs when (1) the decision rests on an error of law . . . or a
clearly erroneous factual finding, or (2) the decision‐‐though not necessarily the
product of a legal error or a clearly erroneous factual finding‐‐cannot be located
within the range of permissible decisions.” Harris v. O’Hare, 770 F.3d 224, 231
(2d Cir. 2014) (internal quotation marks omitted).
The Dalessandros argue that the district court abused its discretion
because there was no evidence to support the jury’s findings of both probable
cause and exigency. We disagree.
“The core premise underlying the Fourth Amendment is that warrantless
searches of a home are presumptively unreasonable.” Id. at 231 (quoting
United States v. Simmons, 661 F.3d 151, 156‐57 (2d Cir. 2011)). That
presumption may be overcome if “the exigencies of the situation make the needs
of law enforcement so compelling that [a] warrantless search is objectively
reasonable.” Kentucky v. King, 563 U.S. 452, 460 (2011) (internal quotation
marks omitted). Warrantless entry is justified when there is both probable
cause and exigency. See Kirk v. Louisiana, 536 U.S. 635, 638 (2002) (per curiam).
Probable cause “requires only a probability or substantial chance of
criminal activity, not an actual showing of such activity.” Illinois v. Gates, 462
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U.S. 213, 243 n.13 (1983). “Probable cause is not a high bar.” District of
Columbia v. Wesby, 138 S. Ct. 577, 586 (2018) (internal quotation marks omitted).
For the exigent‐circumstances doctrine, “[t]he core question is whether the
facts, as they appeared at the moment of entry, would lead a reasonable,
experienced officer to believe that there was an urgent need to render aid or take
action.” United States v. Klump, 536 F.3d 113, 117–18 (2d Cir. 2008) (citation
and internal quotation marks omitted). The exception justifies a warrantless
search “strictly circumscribed by the exigencies which justify its initiation.” Id.
(internal quotation marks omitted).
Sufficient evidence supports the jury’s findings of probable cause and
exigent circumstances. The officers responded to a 911 call from the
Dalessandros’ neighbor, reporting screaming from the Dalessandros’ house.
The neighbor confirmed her account in person, telling the officers that a person
had been screaming from the vicinity of the Dalessandros’ residence and
expressing her concern that something had happened inside the home. During
questioning, the officers found Mr. Dalessandro uncooperative and agitated.
One officer described Mr. Dalessandro’s behavior as “bizarre” and stated that he
“was almost ranting and raving.” A‐353. And their suspicions were raised
when Mr. Dalessandro refused to bring his wife to the door.
The officers could have attributed Mr. Dalessandro’s agitation to being
awakened in the night by police and they could have accepted his statement that
his wife was disabled. However, a reasonable officer could also have thought
Mr. Dalessandro’s behavior and responses only heightened the concerns raised
by the neighbor’s report, i.e. that someone in the house was injured and in need
of help or was in present danger. The officers’ reliance on the information
provided by the neighbor was appropriate. See Caldarola v. Calabrese, 298 F.3d
156, 163 (2d Cir. 2002). Information provided by “identified bystander with no
apparent motive to falsify” has “a peculiar likelihood of accuracy.” Id. (quoting
United States v. Rollins, 522 F.2d 160, 164 (2d Cir. 1975)). And the officers acted
reasonably; they left the house after questioning the occupants just long enough
to dispel their concerns.
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The Dalessandros cite Loria v. Gorman, 306 F.3d 1271 (2d Cir. 2002) for the
proposition that the circumstances were not exigent as a matter of law. But
Loria is inapposite. In Loria, the police responded to a noise complaint and
suspected nothing more than the violation of a local noise ordinance. Exigent
circumstances do not exist “where the crime involved is minor and there is no
apparent potential for violence.” Id. at 1286.
Accordingly, the district court did not abuse its discretion in concluding
that the jury’s decision was not against the weight of evidence.
2. The district court ruled that the Dalessandros forfeited their right to
move for post‐verdict judgment as a matter of law pursuant to Rule 50(b)
because they failed to make a pre‐verdict Rule 50(a) motion. See 2 Steven S.
Gensler, Federal Rules of Civil Procedure, Rules and Commentary, Rule 50 (2018
ed.) (“Rule 50(b) does not authorize a party to challenge the sufficiency of the
evidence for the first time after verdict. The only thing the verdict loser can do
is renew a preverdict motion.”). We agree.
The requirement that an argument raised on a Rule 50(b) motion must
have specifically been raised in a Rule 50(a) motion is no “mere technicality.”
Cruz v. IBEW, 34 F.3d 1148, 1155 (2d Cir. 1994). The requirement “give[s] the
[non‐moving] party an opportunity to cure the defects in proof that might
otherwise preclude him from taking the case to the jury” when he still has a
chance to do so. Galdieri‐Ambrosini v. Nat’l Realty & Dev. Corp., 136 F.3d 276,
286 (2d Cir. 1998).
Because the Dalessandros did not move pre‐verdict for judgment as a
matter of law, relief on appeal is available only to correct a manifest injustice in
cases where a jury’s verdict is wholly without legal support. See Lore v. City of
Syracuse, 670 F.3d 127, 153 (2d Cir. 2012) (“As to any issue on which proper Rule
50 motions were not made, JMOL may not properly be granted by the district
court, or upheld on appeal, or ordered by the appellate court unless that action is
required in order to prevent manifest injustice.”); Kirsch v. Fleet St., Ltd., 148
F.3d 149, 164 (2d Cir. 1998) (same).
5
For the reasons stated above (regarding the Dalessandros’ motion for a
new trial), sufficient evidence supports the jury’s findings of probable cause and
exigency. Accordingly, the district court’s denial of the motion for judgment as
a matter of law is affirmed.
We have considered the Dalessandros’ remaining arguments and find
them to be without merit. For the foregoing reasons, we AFFIRM the judgment
of the district court.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
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