A CI told the Troy NY police that he bought dope from “Stink” at 396 First Street. The CI couldn’t be corroborated, and the officer obtaining the warrant didn’t tell the issuing magistrate that surveillance of plaintiff’s house showed no criminal activity. A no-knock warrant was obtained and the police broke into the innocent plaintiff’s house with a flash-bang grenade. Plaintiff sued under § 1983, and the officers were denied qualified immunity for not corroborating the snitch and raiding the house of an innocent person. McColley v. County of Rensselaer, 740 F.3d 817 (2d Cir. 2014):
Ronita McColley (“McColley”), a mother with no criminal history or connection to criminality and an employee at the Center for Disability Services in Albany, New York, lived with her young daughter in the first floor apartment of 396 First Street in Troy, New York, since 2003. On July 3, 2008, at approximately 6:00 a.m., McColley was awoken in her home by the sound of the City of Troy Police Department Emergency Response Team (“ERT”) knocking down her door and the explosion of a flash-bang grenade. Dressed in all black, wearing face masks, and carrying automatic weapons, the members of the ERT screamed for McColley to get on the floor, but as there was not enough space for her to lie on the floor, a member of the ERT instead shoved McColley face down onto her bed. As she had been roused from sleep, McColley was clad in only a t-shirt and underwear. She repeatedly requested to cover herself but was repeatedly denied. These events took place under the authorization of a no-knock search warrant secured by Riley on June 27, 2008.
In connection with a drug investigation in Troy, Riley submitted a search warrant application to obtain four warrants to search four residences within the city, including McColley’s home. The application was based upon information received from a confidential informant (“CI”). On June 23, 2008, this CI, who had performed four controlled buys for the Rensselaer County Drug and Gang Task Force in the past, contacted Riley, advising him that he could purchase crack-cocaine from an individual identified as “Sport.” Riley and other members of the Task Force set up a controlled buy, whereby the CI purchased crack-cocaine. On June 25, 2008, the CI again contacted Riley. He told Riley that, on the previous day, he had been taken to the first floor apartment of 396 First Street—McColley’s home—to purchase crack from Sport. The CI further indicated that a drug dealer he had known for years, “Stink,” was also present at 396 First Street and used a King of Hearts playing card to remove cocaine from a scale. The CI also noted there was a third male that he did not know in the apartment. The initial report from the CI and the related affidavit by Riley made no mention of a woman being present in the apartment. Though the CI indicated that he purchased drugs at 396 First Street on the singular occasion he had visited, the Task Force identified the apartment as a “stash house.”
. . .
The omission of this fact was not a failure to provide unnecessary corroboration; it was a failure to provide known information that goes directly to the credibility of the CI. A confidential informant’s credibility is plainly relevant—even critical—to the probable cause determination, and thus the fact that surveillance provided no evidence or even suggestion of criminal activity should have been included in the warrant affidavit. Just as with the omission of McColley’s identity, the omission of the unsuccessful surveillance altered the “totality of the circumstances” under which the information provided by the CI should have been assessed. And just as with the omission of McColley’s identity, the weight that an issuing magistrate would have given to this information is a question for the finder of fact. Velardi, 40 F.3d at 574.
The dissent’s insistence on the existence of arguable probable cause does not alter our analysis. Arguable probable cause, a doctrine imported into this Circuit’s corrected affidavit jurisprudence in Escalera, 361 F.3d at 744; see also Opinion of Calabresi, J. at [7-8], exists if “(a) it was objectively reasonable for the officer to believe that probable cause existed, or (b) officers of reasonable competence could disagree on whether the probable cause test was met.” Escalera, 361 F.3d at 743 (internal quotation marks omitted). The dissent conflates the questions of facts regarding the CI’s credibility with that of whether reasonable officers could disagree as to the existence of probable cause. Questions of fact exist in this case with respect to the reliability of the CI’s information regarding 396 First Street. Whether reasonable officers would disagree on whether there was probable cause is equally dependent on the questions of fact previously identified. If the CI’s information regarding McColley’s home was not reliable, then reasonable officers would not disagree as to the lack of probable cause. The dissent would have the doctrine of arguable probable cause swallow the entire rule of qualified immunity as well as the related limitation on our jurisdiction. This cannot be.
The information omitted from the warrant application was indeed “necessary to the finding of probable cause” because both McColley’s identity and the lack of criminal activity observed at her home go directly to the “totality of circumstances” review that underlies the assessment of probable cause based upon information provided by confidential informants. The Appellants would have this Court conclude that once information has been provided by a confidential informant who has proven reliable in the past, a warrant is necessarily supported by probable cause when based upon information from that confidential informant. This view misapprehends the “totality of circumstances” test—in assessing whether there is probable cause based upon a confidential informant’s reports, courts must look to all of the circumstances bearing upon the information’s reliability. Smith, 9 F.3d at 1012.
In this case, McColley’s identity, the fact that the CI did not report that a woman was present in the apartment, and the fact that attempts at independent corroboration via surveillance showed no sign of criminal activity are all omissions that bear upon the reliability of the overall information provided. While we share the concerns raised in the concurrence with respect to the particularly intrusive method of entry used in this case, see Opinion of Calabresi, J. at [15], issues of fact underlie the weight that the issuing judge would have given the omitted information regardless of the method of entry employed. As such, this case lies outside of the jurisdiction of this Court to perform interlocutory review of the denial of summary judgment. The issue of qualified immunity, including the question of reasonableness as to the type of warrant sought and used, is not properly before us at this stage of the proceedings.
