Pascual v. Fernandez

U.S. DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
Civil Rights

New York Law Journal

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Judge Robert Sweet

Agents arrested Pascual in a "controlled delivery" of drugs. Agent Fernandez allegedly grabbed her by the neck and dragged her from her car before forcing her face into the car and handcuffing her. He also conducted a pat-down search touching Pascual's breast, buttocks and inner thigh. After signing a form consenting to her car's search, and using a bathroom, Pascual was escorted to an office where agent Pliva subjected her to a cavity/strip search. Evidence seized Pascual's car was denied suppression. Pascual was convicted after a 2010 second trial. Despite a ruling withdrawing a finding that Pascual consented to her car's search, the court found no basis to suppress evidence therefrom. The court dismissed Pascual's action asserting claims under 42 USC §1983 and the Fourth Amendment. Her excess force claim against Fernandez failed because she alleged no actual injury resulting from Fernandez's actions. The pat-down search was deemed reasonable per se under the Fourth Amendment as conducted incident to arrest. Absent allegations of otherwise improper conduct—which Pascual did not make—the fact that a male officer conducted a pat-down search on a female detainee does not give rise to a constitutional violation.

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