Circuit Denies Immunity to Officer in Unsuccessful Raid

, New York Law Journal

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Ronita McColley
Acting on a tip from an informant, police burst into the Troy apartment of Ronita McColley but found no drugs.

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.

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