Court Rules Claims Over Search of Building's Third Floor Are Viable Under 'Bivens'

September 29, 2020

Powell and his family live on the first floor of Powell's three-story Bronx apartment building. Apartments on the building's two upper floors are rented for residential use. In April 2018 law enforcement officers executing a warrant to search the building's first two floors found no evidence of criminality. NYPD detective Santos and others then allegedly exceeded the warrant's scope to search the building's third floor, recovering several kilograms of cocaine, which served as the basis to arrest and prosecute Powell. The charges were dropped as falsely grounded on the drugs' recovery pursuant to warrant. The district court denied dismissal of Powell's false arrest, malicious prosecution, and due process claims, which are viable under Bivens, which sustained a right to recover for Fourth Amendment search and seizure violations in similar cases. Santos failed to show "extraordinary circumstances" entitling her to a defense of qualified immunity.



Marc Cannan



New York Law Journal

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