Citations
- 298 F. Supp. 3d 464
Full opinion text
MARGO K. BRODIE, United States District Judge:
Plaintiff Gem Financial Service, Inc. ("Gem"), doing business as Gem Pawnbrokers, commenced the above-captioned action on March 28, 2013 against, among others, Defendants City of New York (the "City" or "Defendant") and Police Officers John Doe # 1-10, (Compl., Docket Entry No. 1), and filed an Amended Complaint on May 2, 2014, alleging, inter alia , unlawful searches and seizures in violation of the Fourth Amendment, selective enforcement under the Equal Protection Clause of the Fourteenth Amendment, and malicious prosecution under New York state law, (Am. Compl., Docket Entry No. 25). Currently before the Court are the parties' cross-motions for summary judgment. Defendant moves for summary judgment as to Plaintiff's (1) Fourth Amendment as-administered claim for searches and seizures of collateral property, (2) Equal Protection claim for selective enforcement, (3) municipal liability claim, and (4) state malicious prosecution claim. (Def. Mot. for Summ. J. ("Def. Mot."), Docket Entry No. 86; Def. Mem. in Supp. of Def. Mot. ("Def. Mem."), Docket Entry No. 86-9.) Plaintiff cross-moves for declaratory relief holding New York City Charter § 436 ("section 436") and New York City Local Law No. 149 ("Local Law 149") facially unconstitutional under both the United States and New York State Constitutions. (Pl. Mot. for Summ. J. ("Pl. Mot."), Docket Entry No. 87; Pl. Mem. in Supp. of Pl. Mot. ("Pl. Mem."), Docket Entry No. 87-2.) For the reasons discussed below, the Court grants in part and denies in part both motions for summary judgment.
I. Background
a. Factual background
Plaintiff Gem is a licensed collateral loan broker, also known as a pawnbroker, and second-hand dealer. (Def. Statement of Material Facts Pursuant to Local R. 56.1 ("Def. 56.1") ¶ 9, Docket Entry No. 86-1.) As of April of 2014, Gem had twenty separate retail stores throughout New York City. (Id. ¶ 10.)
In New York City, pawnbrokers and second-hand dealers have been subject to a variety of state and local regulations that require the recording and reporting of certain transactional information. (Id. ¶¶ 1, 5-8.) Pursuant to statute, including section 436, Defendant has broad supervisory authority over pawnbrokers and second-hand dealers, including the authority to question employees, examine premises and the records and merchandise thereon, and may issue summonses for failures to comply with the various requirements. (Id. ¶ 3.)
Beginning in 2010, the New York City Police Department ("NYPD") instituted a policy designed to "encourage" the use of LeadsOnline, a "web-based electronic data transfer" database which serves as a repository for information that pawnbrokers and second-hand dealers are required to record and store pursuant to statute. (Id. ¶ 22.) LeadsOnline allows police officers to download and view every uploaded transaction. (Memo re: Increase Voluntary Use of "LeadsOnline" Electronic Pawnshop Database ("Increase Use Memo"), annexed to Def. Mot. as Ex. R, Docket Entry No. 86-7.) The NYPD believed LeadsOnline would "allow for the gathering of information on crimes, criminals, and possibly the recovery of property." (Id. ) At the time, only sixteen out of approximately 145 pawnshops in New York City used LeadsOnline. (Id. )
Gem was an early adopter of LeadsOnline. In 2007, Gem approached the NYPD
about the potential use of LeadsOnline as "an effort to extend an olive branch and [desire to] develop a mutually beneficial relationship." (Affidavit of Harold Dambrot in Supp. of Pl. Mot. ("Dambrot Aff.") ¶ 2, annexed to Pl. Mot. as Ex. A, Docket Entry No. 87-4.) Accordingly, Gem used LeadsOnline in 2010. (Def. 56.1 ¶ 26.) However, Gem discontinued its use in February of 2011. (Id. ¶ 27.) Harold Dambrot, Gem's Senior Vice President for Legal Matters, explained that Gem discontinued the use of LeadsOnline because of the "constant" police holds, i.e., requests to hold onto property, and requests for photographs of collateral. (Id. ¶¶ 15, 29-30.)
The NYPD encouraged officers to "actively recruit[ ]" pawnshops, second-hand dealers, and other businesses to use LeadsOnline. (March 30, 2011 Leads Online Recruitment and Survey ("March 30, 2011 Memo"), annexed to Def. Mot. as Ex. R, Docket Entry No. 86-7.) Officers were also instructed to "approach [pawnbrokers] ... to explain the benefits and operation" of LeadsOnline. (May 12, 2010 Expansion of Voluntary Participation of Pawnbrokers in the "LeadsOnline" Database ("May 12, 2010 Memo"), annexed to Def. Mot. as Ex. R, Docket Entry No. 86-7.)
According to Gem, after it discontinued use of LeadsOnline, there was a noticeable increase in the police presence at its stores, beginning in the summer of 2011. (See Dambrot Aff. ¶ 3.) Joseph Taranto, a manager at one Gem store, testified that the number of police visits at his particular location increased from one to two times per day in 2010, to four to five times per day in the following years, pursuant to the efforts to increase the number of stores using LeadsOnline. (Joseph Taranto Dep. ("Taranto Dep.") 18:25-19:1, annexed to Pl. Mot. as Ex. II, Docket Entry No. 87-38.) Dambrot, Taranto, and other Gem employees also testified at their depositions that such interactions were often hostile, accompanied by threats of arrest, and business disruption. (See, e.g. , Karan Ragoo Dep. in Supp. of Pl. Mot. ("Ragoo Dep.") 53:14-19, annexed to Pl. Mot. as Ex. JJ, Docket Entry No. 87-39 ("The nature of the threat was as soon as he came in he says you are not using LeadsOnline and he could shut me down.").) The NYPD also issued Gem seven criminal summonses for various violations during this time. (Gem Summons, annexed to Def. Mot. as Ex. S, Docket Entry No. 86-7.) One summons, issued on September 19, 2012, was dismissed on December 21, 2012 after Gem appeared in court before Judge Raciti at the Criminal Court of the City of New York in Kew Gardens, New York. (See December 21, 2012 Hr'g Tr. 5:18-22, annexed to Def. Mot. as Ex. GG, Docket Entry No. 86-8.)
Other pawnshops have testified to similar experiences. Joseph Buoninfante, the senior manager of Quick Cash USA, LLC, a pawnbroker chain with nearly twenty stores in New York City, explained that their stores experienced a sharp increase in the number of police visits beginning in 2012. (Joseph Buoninfante Aff. in Supp. of Pl. Mot. ("Buoninfante Aff.") ¶ 2, annexed to Pl. Mot. as Ex. J, Docket Entry No. 87-13.) According to Buoninfante, these visits were accompanied by threats and orders to hold jewelry. (Id. ) As a result, Quick Cash USA gave in to the NYPD's demands to use LeadsOnline. (Id. ¶ 3.) Upon doing so, the alleged harassment ceased.
(Id. ) Likewise, David Kaminsky, the president of EZ Pawn Corp., a pawnbroker chain with fourteen different stores in New York City, explained their stores were subject to an increased police presence, threats, harassment, and bullying, upon cancellation of their service with LeadsOnline on two separate occasions, in 2012 and May of 2015. (David Kaminsky Aff. in Supp. of Pl. Mot. ("Kaminsky Aff.") ¶¶ 2, 5, annexed to Pl. Mot. as Ex. I, Docket Entry No. 87-12.)
In addition to the asserted hostile nature of the police visits, Gem also complains more generally about officers' seizures and holds of pledged items. Gem has specifically identified eight seizures and holds as examples of problematic police conduct. (Def. 56.1 ¶¶ 31, 52.) Gem contends that the specifically identified seizures and holds are only examples of a much larger number of such actions. (Dambrot Aff. ¶¶ 2-3, 6-10; Sandra Lopez Dep. ("Lopez Dep.") 32:13-19, annexed to Pl. Mot. as Ex. KK, Docket Entry No. 87-40; Ragoo Dep. 26:24-27:5; Khariton Popilevsky Dep. ("Popilevsky Dep.") 30:19-25, annexed to Pl. Mot. as Ex. GG, Docket Entry No. 87-36.)
Defendant contends that officers had probable cause to believe the seized items were stolen, except for one pledged item for which it could not verify NYPD involvement. (Def. 56.1 ¶¶ 31-45; Def. Mem. 8 n.5.) The NYPD acknowledges that where an item is not in plain view, and they do not obtain consent to search, the premises must be secured and a warrant obtained before any search and seizure beyond that of an ordinary administrative inspection can be effectuated. (Joseph J. Esposito Dep. ("Esposito Dep.") 34:5-13, annexed to Pl. Mot. as Ex. O, Docket Entry No. 87-16.) Similarly, holds of collateral are to be temporary in nature, designed to "freeze the location" so that a search warrant may be obtained. (Patrick Timlin Dep. ("Timlin Dep.") 65:2-7 (describing an order requiring a store owner to hold collateral "indefinitely" as "inappropriate"), annexed to Pl. Mot. as Ex. P, Docket Entry No. 87-19; Esposito Dep. 34:14-21 ("[I]f we feel that we want to apply for a search warrant to seize that property, part of the process would be to freeze the location so that the property could not be disposed of while we were applying for a warrant.").) The NYPD concedes that it has never secured a warrant to seize any item from Gem between 2010 and June 21, 2016, and has never obtained a warrant to search Gem's premises. (June 21, 2016 Letter re: Supplemental Demands ("Supplemental Demands") 2, 4, annexed to Pl. Mot. as Ex. W, Docket Entry No. 87-26.) The NYPD also does not maintain records of hold requests for collateral in the possession of pawnbrokers. (Def. Resp. to Pl. First Set of Interrogs. ("Def. Resp. to Interrogs.") 5, annexed to Pl. Mot. as Ex. V, Docket Entry No. 87-25.)
Defendant contends that Dambrot, as Gem's authorized employee, consented to every hold and seizure. (Def. Mem. 3.) Dambrot testified that he never voluntarily consented to any seizure or hold request, only relenting after being given "the typical warning [that he could] be arrested for possession of stolen property, or interference with governmental administration." (Dambrot Aff. ¶ 7.) Dambrot explained that he consistently requested a warrant when the NYPD sought to seize collateral, and generally requested a warrant or further information when the NYPD sought to place holds on property. (Id. ) Despite his initial protests, Dambrot testified that his resolve was eventually overcome by threats of arrest, harassment of customers, and disruption of business more generally. (Id. ; Harold Dambrot Dep. ("Dambrot Dep.") 92:1-3, annexed to Def. Mot. as Ex. D, Docket Entry No. 86-4.) Gem also explains it was under no legal obligation to keep records of NYPD's hold and seizure requests, and visits by officers. (Dambrot Aff. ¶ 4.)
b. The regulatory scheme governing warrantless searches
i. The statutory framework
Collateral loan brokers and second-hand dealers in New York City operate under a regulatory framework that includes several provisions of the New York State General Business Law, the New York City Charter, the New York City Administrative Code, and the Rules of the City of New York ("RCNY"). At the state level, Chapter 20, Article 5 of the General Business Law regulates collateral loan brokers. See N.Y. Gen. Bus. Law Ch. 20, Art. 5. Section 43 of the General Business Law requires collateral loan brokers to keep a book with specific information concerning loans and collateral. N.Y. Gen. Bus. Law Ch. 20, Art. 5 § 43. Section 45 of the same law discusses inspection of such records and states in pertinent part:
The said book and any and all other books and records regularly kept by such collateral loan broker shall at all reasonable times be open to the inspection of the attorney general, the state comptroller, the mayor or local licensing authority, all judges of the criminal courts, the superintendent of police, police inspectors, captains of police and police justices of such cities, or any or either of them, or of any person who shall be duly authorized in writing for that purpose by any or either of them, and who shall exhibit such written authority to such collateral loan broker.
N.Y. Gen. Bus. Law Ch. 20, Art. 5 § 45.
New York City law also affords the NYPD Police Commissioner (the "Commissioner") the authority to conduct administrative searches of certain trades, including pawnbrokers and second-hand dealers. Section 436 of the New York City Charter discusses the Commissioner's search power and states in pertinent part:
The commissioner shall possess powers of general supervision and inspection over all licensed or unlicensed pawnbrokers ... dealers in second-hand merchandise ... and in connection with the performance of any police duties he shall have power to examine such persons, their clerks and employees and their books, business premises, and any articles of merchandise in their possession. A refusal or neglect to comply in any respect with the provisions of this section on the part of any pawnbroker ... dealer in second-hand merchandise ... or any clerk or employee of any thereof shall be triable by a judge of the criminal court and punishable by not more than thirty days' imprisonment, or by a fine of not more than fifty dollars, or both.
N.Y. City Charter § 436. Several sections of the New York City Administrative Code expressly govern the operations of second-hand dealers and pawnbrokers. Section 20-277 discusses the reporting requirements of pawnbrokers which has changed since the commencement of this litigation. At the commencement of this litigation, Section 20-277 stated:
The police commissioner, at such times as he or she may prescribe in a written notice served upon any pawnbroker by a member of the police department, may require such pawnbroker to report to such commissioner, upon blank forms to be furnished by the police department, a description of all goods, articles or things, or any part thereof, pawned or pledged in the course of business of such pawnbroker during the days specified in such notice, stating the numbers of the pawn tickets issued therefor, the amounts loaned thereon, and such identifying marks as may be on the goods pawned. If such notice from the police commissioner so prescribes, such pawnbroker, until he or she is notified to discontinue so doing, shall keep and furnish on such forms, a general description as to sex, color and apparent age of every person depositing such pledges.
N.Y. City Code § 20-277. Section 20-267 is an analogous provision directed at second-hand dealers. See N.Y. City Code § 20-267. Section 20-272(b) addresses lost or stolen goods and stated in pertinent part:
Every dealer in second-hand articles who shall have or receive any goods, or articles lost or stolen, or alleged or supposed to have been lost or stolen, shall exhibit the same, on demand, to the commissioner or departmental inspector ... to any police officer, or to any person, duly authorized in writing by the commissioner ... who shall exhibit such written authority to the dealer.
N.Y. City Code § 20-272. Section 20-273 discusses the information second-hand dealers are required to keep and stated that pawnbrokers must keep a "book in which [that information] shall be legibly written in English ...." See N.Y. City Code § 20-273(a)-(b). Subsection (d) discusses police inspection of said books and stated in pertinent part:
Such book, at all reasonable times, shall be open to the inspection of any police officer, to the commissioner or departmental inspector ... or any person duly authorized in writing for such purposes by the commissioner ... who shall exhibit such written authority to the dealer.
N.Y. City Code § 20-273(d). A violation of "any of the provisions of this subchapter or any rule or regulation issued thereunder" is a class A misdemeanor. See N.Y. City Code § 20-275. In addition, 6 RCNY § 1-16 authorizes the Department of Consumer Affairs ("DCA") to conduct inspections of on-site books and records required to be maintained by licensees under the New York City Administrative Codes. The DCA inspections are to be "conducted at least once in every two-year period" and the licensees must make records available "during business hours." 6 RCNY § 1-16.
In 2013, after the commencement of this action, the New York City Council enacted Local Law 149, requiring pawnbrokers and second-hand dealers to report transactions electronically, amending sections 20-267, 20-273, and 20-277. (See Local Law No. 149, annexed to Def. Reply in Supp. of Def. Mot. ("Def. Reply"), Docket Entry No. 88, as Ex. LL, Docket Entry No. 88-3.) On June 3, 2015, a New York State Supreme Court enjoined the various statutes including section 436 and Local Law 149, granting a preliminary injunction while finding the statutes likely to be facially unconstitutional under Article 1 § 12 of the New York State Constitution. Collateral Loanbrokers Ass'n of New York, Inc. v. City of New York , 47 Misc.3d 1225A, 18 N.Y.S.3d 578 (Sup. Ct. 2015), rev'd , 148 A.D.3d 133, 46 N.Y.S.3d 600 (App. Div. 2017). After granting a stay of the Supreme Court's ruling pending appeal, the New York Appellate Division, First Department, reversed, finding the plaintiffs unlikely to succeed on the merits. Collateral Loanbrokers Ass'n of New York, Inc. v. City of New York , 148 A.D.3d 133, 46 N.Y.S.3d 600, 605 (2017), appeal dismissed , 29 N.Y.3d 974, 74 N.E.3d 667, 29 N.Y.3d 974 (2017). In its analysis, the Appellate Division distinguished between Local Law 149 and its transactional reporting requirements and other statutes that oversee physical inspections of commercial premises. Id. at 604.
ii. NYPD guidance
In 1998, George A. Grasso, then-Deputy Commissioner of Legal Matters of the NYPD, promulgated a memorandum entitled "Guidelines for the Inspection of Pawnbroker and Second-hand Dealers Businesses," ("Grasso Memo," annexed to Pl. Mot. as Ex. C, Docket Entry No. 87-6). The Grasso Memo, addressed to "Chief of Detectives," discusses the various laws governing pawnbrokers and second-hand dealers and establishes guidelines "in order to insure that the administrative searches ... conducted by this Department survive constitutional challenge ...." (Id. at 2.) The Grasso Memo advises officers, inter alia, to visit stores during regular business hours and request to inspect required books and records. (Id. at 5.) The Grasso Memo further advises that if an officer develops probable cause to believe that criminal activity is afoot during an inspection, the premises "should be secured and a search warrant obtained before a search of the premises is commenced." (Id. ) Finally, the Grasso Memo reiterates that an officer may seize property only if "its evidentiary or contraband nature" is apparent and the property is in plain view. (Id. )
More recently, on August 1, 2013, the NYPD promulgated Patrol Guide Procedure No. 214-38, ("Patrol Guide," annexed to Pl. Mot. as Ex. D, Docket Entry No. 87-7). The Patrol Guide's purpose is "[t]o establish a systemic inspection of pawnbrokers and second-hand dealers by patrol precincts." (Id. ) The Patrol Guide reiterates aspects of the Grasso Memo concerning the warrantless inspection of pawnbrokers and second-hand dealers. (Id. ) In addition, the Patrol Guide provides guidelines to officers on the retention and review of electronic records uploaded by pawnbrokers and second-hand dealers to an online database. (Id. ) Pursuant to the Patrol Guide, officers are directed to inspect on-site records at least once every ten days if those records are not maintained electronically. (Id. ) Electronic records, however, are to be reviewed weekly. (Id. )
On August 5, 2016, certain aspects of the Grasso Memo and the Patrol Guide were codified in 38 RCNY § 21-11. Under 38 RCNY § 21-11(a), officers are to examine the "last twenty articles purchased or received in pledge ... that are still in inventory," "[c]ompare the articles to the description ... listed in the" store records, and review the entries for "completeness, accuracy, and legibility." These inspections "must occur regularly, and in no event less often than once per quarter during the calendar year." 38 RCNY § 21-11(a).
c. Procedural background
Gem and former Plaintiff Mitchell Kaminsky filed the original Complaint on March 28, 2013 against Defendants the City, Police Officers John Doe # 1-10, and former Defendant the NYPD, alleging unlawful search and seizure, malicious prosecution, differential treatment (under a class one theory) in violation of the Fourth and Fourteenth Amendments, and municipal liability. (Compl.) Gem and Kaminsky also alleged claims under the New York State Constitution, the New York Civil Rights Law ("NYCRL") and New York state common law for malicious prosecution and tortious interference.
Defendants moved to dismiss the Complaint on July 12, 2013. At oral argument on March 6, 2014, the Court dismissed Kaminsky from the action and dismissed all claims against the NYPD. (Minute Entry dated March 6, 2014.) By Memorandum and Order dated March 17, 2014 (the "March 17, 2014 Decision"), the Court granted in part and denied in part Defendants' motion to dismiss. Gem Fin. Serv., Inc. v. City of New York , No. 13-CV-1686, 2014 WL 1010408, at *16 (E.D.N.Y. Mar. 17, 2014) (" Gem I "). The Court granted Defendants' motion to dismiss Gem's class of one Equal Protection claim, federal malicious prosecution claim, NYCRL claim, and tortious interference claim. ( Id. ) The Court denied Defendants' motion to dismiss Gem's Fourth Amendment claim, state law malicious prosecution claim, municipal liability claim, and request for equitable relief. ( Id. ) In denying the motion to dismiss as to the Fourth Amendment claim, the Court assumed, for purposes of the motion, that section 436 was constitutional and held that the seizures and holds fell outside even the expansive scope of that statute. See Gem I , 2014 WL 1010408, at *6. Rather than dismiss Gem's as-administered challenge against the warrantless inspections of its stores, the Court reasoned that the NYPD's alleged actions went even beyond the broad authorization in section 436. See id. at *7-8. The Court did not limit or dismiss any portion of Gem's Fourth Amendment claim.
Gem filed an Amended Complaint on May 2, 2014, adding Keith Watts as a Plaintiff. In addition to its Fourth Amendment, state malicious prosecution, and municipal liability claims, Gem also alleged a selective enforcement claim in violation of the Equal Protection Clause. (See generally Am. Compl.)
Defendants moved for reconsideration of the March 17, 2014 Decision as to the Fourth Amendment and state malicious prosecution claims and moved to dismiss the selective treatment Equal Protection claim. (Def. Mot. for Reconsideration and to Dismiss ("Def. Reconsideration") 1, Docket Entry 37.) By Memorandum and Order date March 31, 2015 ("March 31, 2015 Decision"), the Court denied Defendants' motions in their entirety. Gem Fin. Serv., Inc. v. City of New York , No. 13-CV-1686, 2015 WL 1475853, at *10 (E.D.N.Y. Mar. 31, 2015) (" Gem II ").
II. Discussion
a. Standard of review
Summary judgment is proper only when, construing the evidence in the light most favorable to the non-movant, "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; Wandering Dago, Inc. v. Destito , 879 F.3d 20, 30 (2d Cir. 2018) ; see also Cortes v. MTA NYC Transit , 802 F.3d 226, 230 (2d Cir. 2015). The role of the court "is not to resolve disputed questions of fact but only to determine whether, as to any material issue, a genuine factual dispute exists." Rogoz v. City of Hartford , 796 F.3d 236, 245 (2d Cir. 2015) (first quoting Kaytor v. Elec. Boat Corp. , 609 F.3d 537, 545 (2d Cir. 2010) ; and then citing Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). A genuine issue of fact exists when there is sufficient "evidence on which the jury could reasonably find for the plaintiff." Anderson , 477 U.S. at 252, 106 S.Ct. 2505. The "mere existence of a scintilla of evidence" is not sufficient to defeat summary judgment. Id. The court's function is to decide "whether, after resolving all ambiguities and drawing all inferences in favor of the nonmoving party, a rational juror could find in favor of that party." Pinto v. Allstate Ins. Co. , 221 F.3d 394, 398 (2d Cir. 2000).
b. Section 1983 claims
Plaintiff asserts the following claims against Defendant under section 1983: (1) as-administered and facial challenges under the Fourth Amendment for unlawful searches and seizures, (2) selective enforcement action under the Equal Protection Clause, and (3) municipal liability. Defendant moves for summary judgment as to all claims.
Under section 1983, individuals may bring a private cause of action against persons "acting under color of state law" to recover money damages for deprivations of their federal or constitutional rights. Matusick v. Erie Cty. Water Auth. , 757 F.3d 31, 55 (2d Cir. 2014) (quoting 42 U.S.C. § 1983 ). To establish a viable section 1983 claim, a plaintiff must show "the violation of a right secured by the Constitution and laws of the United States" and that "the alleged deprivation was committed by a person acting under color of state law." Vega v. Hempstead Union Free Sch. Dist. , 801 F.3d 72, 87-88 (2d Cir. 2015) (citations and internal quotation marks omitted).
i. As-administered Fourth Amendment claim
Plaintiff brings an as-administered claim under the Fourth Amendment for unlawful searches and seizures for warrantless administrative inspections of its commercial premises. In addition, Plaintiff asserts a claim for seizures and holds of collateral property, both independent and as part of its overall claim regarding the inspections. Defendant specifically challenges the claim for seizures and holds of collateral property on four bases: (1) Plaintiff has no reasonable expectation of privacy in the pledged items, records, and the information therein; (2) the pledged items were seized pursuant to voluntary consent; and/or (3) the plain view doctrine; and (4) there was no practice or policy to form the basis of municipal liability. The Court separately discusses each challenge below.
1. Reasonable expectation of privacy
Defendant argues that Plaintiff does not have a reasonable expectation of privacy in the records or the pledged items because they are subject to inspection under the administrative scheme applicable to pawnbrokers and second-hand dealers. (Def. Mem. 7; Def. Reply 25-26.) With respect to the content of the records, Defendant argues that Plaintiff has no reasonable expectation of privacy because the information therein is provided by customers, and is required and subject to review by statute. (Def. Mem. 7.) While unclear, Plaintiff appears to assume a reasonable expectation of privacy in the records, the information therein, and the pledged items based on language from New York v. Burger , 482 U.S. 691, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987) (" Burger ").
The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures." U.S. Const. amend. IV. "A search occurs when the Government acquires information by either 'physically intruding on persons, houses, papers, or effects,' or otherwise invading an area in which the individual has a reasonable expectation of privacy." United States v. Ganias , 755 F.3d 125, 133 (2d Cir. 2014) (citations omitted). "A seizure occurs when the Government interferes in some meaningful way with the individual's possession of property." Id. (citations omitted).
Generally, as a threshold matter, there must be a reasonable expectation of privacy in the places or items for there to be a search or seizure within the meaning of the Fourth Amendment. See California v. Ciraolo , 476 U.S. 207, 211, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986) ("The touchstone of Fourth Amendment analysis is whether a person has a 'constitutionally protected reasonable expectation of privacy.' " (citation omitted) ); United States v. Simmonds , 641 Fed.Appx. 99, 104 (2d Cir. 2016) ("It is well established that the Fourth Amendment applies only to spaces in which an individual has a reasonable expectation of privacy."); Shaul v. Cherry Valley-Springfield Cent. Sch. Dist. , 363 F.3d 177, 184 (2d Cir. 2004) (finding no search or seizure claim because plaintiff had no reasonable expectation of privacy in personal property maintained in classroom after being suspended); United States v. Moran , 349 F.Supp.2d 425, 467 (N.D.N.Y. 2005) ("Where there is no legitimate expectation of privacy, there is no search or seizure within the ambit of the Fourth Amendment." (citation omitted) ); see also Fla. v. Jardines , 569 U.S. 1, 11, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013) ("The Katz [v. United States , 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967),] reasonable-expectations test 'has been added to, not substituted for ,' the traditional property-based understanding of the Fourth Amendment." (citation omitted) ). In assessing the legitimacy of an expectation of privacy, courts employ a "two-part" inquiry from Katz : "first, has the individual manifested a subjective expectation of privacy in the object of the challenged search? Second, is society willing to recognize that expectation as reasonable?" Ciraolo , 476 U.S. at 211, 106 S.Ct. 1809.
"One who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of th[e] right to exclude." Rakas v. Illinois , 439 U.S. 128, 143 n.12, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). Under Katz , this property-based expectation of privacy extends to "private" business records containing "the kind of commercially sensitive information" that society does not "ordinarily ... expect[ ] to [be] disclose[d]." Patel v. City of Los Angeles , 738 F.3d 1058, 1062 (9th Cir. 2013), aff'd sub nom. City of Los Angeles, Calif. v. Patel , 576 U.S. ----, ----, 135 S.Ct. 2443, 192 L.Ed.2d 435 (June 22, 2015) ; United States v. AJS Merch., Inc. , 90-CR-121, 1993 U.S. Dist. LEXIS 21320, at *24-26 (W.D.N.Y. May 24, 1993); see also United States v. Torres , 949 F.2d 606, 608 (2d Cir. 1991) ("Neither possession nor ownership of property establishes a legitimate expectation of privacy unless the party vigilantly protects the right to exclude others.").
Despite the expectation of privacy in certain private, commercially sensitive business records, the Second Circuit has held that "records required to be kept pursuant to valid regulatory programs have a 'public aspect' for purposes of constitutional analysis, and thus are not private papers entitled to the protection of the [F]ourth or [F]ifth amendments." Donovan v. Mehlenbacher , 652 F.2d 228, 231 (2d Cir. 1981) (applying the "required records" doctrine to documents required to be kept by labor regulations); Sec. & Exch. Comm'n v. Olsen , 243 F.Supp. 338, 339 (S.D.N.Y. 1965) (holding production of SEC required documents to be "quasi-public records" and did not constitute an unreasonable search and seizure under the Fourth Amendment); Glenwood TV, Inc. v. Ratner , 103 A.D.2d 322, 480 N.Y.S.2d 98, 102-03 (1984) ("It is clear that 'the modern businessman has little or no expectation of privacy in his business records, especially those documents prepared in compliance with regulatory requirements' "), aff'd , 65 N.Y.2d 642, 491 N.Y.S.2d 620, 481 N.E.2d 252 (1985) ; but see Patel , 738 F.3d at 1062 (holding hotel "retain[ed] [an] expectation of privacy notwithstanding the fact that the records [were] required to be kept by law").
Courts apply a "three-factor test to determine whether documents are 'required records.' " In re Grand Jury Subpoena Dated Feb. 2, 2012 , 741 F.3d 339, 345 (2d Cir. 2013) (quoting Grosso v. United States , 390 U.S. 62, 67-68, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968) ) (internal quotation marks omitted). "[F]irst, the purposes of the [government's] inquiry must be essentially regulatory; second, information is to be obtained by requiring the preservation of records of a kind which the regulated party has customarily kept; and third, the records themselves must have assumed 'public aspects' which render them at least analogous to public documents." Id.
Furthermore, the United States Supreme Court has held that the recordkeeping and reporting of certain transactional information do not implicate the Fourth Amendment. See California Bankers Ass'n v. Shultz , 416 U.S. 21, 54, 94 S.Ct. 1494, 39 L.Ed.2d 812 (1974). In upholding the Bank Secrecy Act ("BSA"), the Supreme Court explained that "banks [were] not ... mere stranger[s] or bystanders[s] with respect to the transactions which [they were] required to record or report." Id. at 66, 94 S.Ct. 1494. Instead, the banks themselves were "part[ies] to each of the[ ] transactions, earn[ing] portions of [their] income from conducting such transactions, and in the past may have kept records of similar transactions on a voluntary basis for [their] own purposes." Id. Under these circumstances, the Court "ha[d] no difficulty ... in determining that the ... reporting [requirements did not] abridge [any] Fourth Amendment right of the banks themselves." Id. Ultimately, the reporting requirements were reasonable because the requested information was "reasonably relevant" to the regulatory authority of the agency and "not too indefinite." Id. at 67, 94 S.Ct. 1494 ; Collateral Loanbrokers , 46 N.Y.S.3d at 604 ("Transactional reporting requirements imposed in a regulated industry that sufficiently describe and limit the information to be provided and are reasonably related to the regulatory authority of the agency to which the information is provided do not trigger constitutional protections against unreasonable searches and seizures." (citing California Bankers , 416 U.S. at 67, 94 S.Ct. 1494 ) ); but see California Bankers , 416 U.S. at 64, 94 S.Ct. 1494 ("The District Court went on to pose ... whether 'these provisions ... [would] require financial institutions ... to routinely report ... the detail of almost every conceivable financial transaction .... The District Court was wrong in framing the question .... The question is ... what sort of reporting requirements [that] ... in fact [were] impose[d].").
A. Plaintiff has a reasonable expectation of privacy in the pledged items and the physical records
Applying the above principles, Plaintiff has a reasonable expectation of privacy in the pledged items, and its own physical records. Plaintiff has a possessory and an ownership interest in the pledged items and also the physical records, providing it with the right to exclude others. See Sanders v. City of San Diego , 93 F.3d 1423, 1426 (9th Cir. 1996) ("[T]he pawnbroker, as pledgee, has a legitimate possessory interest in the property as against the rest of the world except the person having title to the property." (quoting G & G Jewelry, Inc. v. City of Oakland , 989 F.2d 1093, 1098 (9th Cir. 1993) ). There is no evidence in the record indicating that Plaintiff ever abandoned its exclusive rights to own and possess these items. Cf. United States v. Lee , 916 F.2d 814, 818 (2d Cir. 1990) (holding that a person forfeits reasonable expectation of privacy in property that he voluntarily abandons).
B. Plaintiff has no reasonable expectation of privacy in the information in the required records
Plaintiff does not have any reasonable expectation of privacy in the information in the records pursuant to the required records doctrine. As discussed below, this finding is also supported by the transactional nature of the information required by the various statutes.
(1) The "essentially regulatory" test
The first prong of the required records doctrine "asks whether the record requirement is 'essentially regulatory.' " In re Grand Jury Subpoena , 741 F.3d at 347. This inquiry looks to the "specific section" of the statute in question. Id. at 348. "[T]he fact [t]hat a statute relates both to criminal law and to civil regulatory matters does not strip the statute of its status as essentially regulatory." Id. at 349 (citation and internal quotation marks omitted). However, "courts are more likely to hold that the required records exception does not apply" "[w]hen legislation is not 'directed at the public at large' and concerns 'an area permeated with criminal statutes.' " Id. at 347. Ultimately, "the question is not whether [the government] was subjectively concerned about crime when enacting [a statute's] recordkeeping and reporting provisions, but rather whether these requirements apply exclusively or almost exclusively to people engaged in criminal activity." Id. at 349. Thus, the required records doctrine applies if "[t]here is nothing inherently illegal about" the information to be collected. Id. at 348. Based on these principles, courts have refused to apply the required records doctrine to "records regarding marijuana sales, ownership of dangerous firearms," but have done so "in the context of drivers involved in automobile accidents, custodians of state-supervised children, and even various sections of the BSA." Id.
The Court finds that the recordkeeping and reporting requirements of pawnshop transactional information are essentially regulatory. The statutes and ordinances, including the sections concerning the recording requirements-the portions of the statutes at issue-"target[ ] those engaged in the lawful activity of [entering into transactions at a pawnshop.]" Id. There is nothing inherently suspect about selling or buying items at pawnshops. As Plaintiff acknowledges, the parties to the transactions, including its customers, are also not "inherently suspect." See id. ; (Pl. Reply in Supp. of Pl Mot. ("Pl. Reply") 9 & 9 n.10, Docket Entry No. 89 ("[I]n 2013, the NYPD quantified the percentage of items potentially stolen that pass through pawnbrokers-and found the rate only to be [0].0001 of 1 percent!").) Furthermore, Plaintiff's argument that the recording requirements, along with the rest of the regulatory scheme overseeing pawnbrokers, were designed for police purposes are irrelevant to the application of this exception. (See generally Pl. Mem.) Although portions of the record support Plaintiff's characterization of the requirements as focused on criminal activity, the subjective intent of the legislature in enacting the statutes and ordinances is not determinative. See In re Grand Jury Subpoena , 741 F.3d at 349. In addition, the requirements have "considerable regulatory utility outside of the criminal justice context." Id. These requirements "serve[ ] several purposes, including deterring theft crimes by making it more difficult for stolen property to be monetized and protecting customers who pledge goods as collateral for short-term loans by ensuring that they are charged lawful interest rates and that the goods are held for the statutory period." Collateral Loanbrokers , 46 N.Y.S.3d at 605.
(2) The "customarily kept" requirement
The second prong "requires that the regulated 'information is to be obtained by requiring the preservation of records of a kind which the regulated party has customarily kept.' " In re Grand Jury Subpoena , 741 F.3d at 349 (quoting Grosso , 390 U.S. at 68, 88 S.Ct. 709 ) (internal quotation marks omitted).
The records required are "very basic" and of the type that Plaintiff has likely customarily kept. Id. at 350. By the very nature of their business, pawnshops and other second-hand dealers need to keep a record of the transactions they enter. Accordingly, the required information only concerns basic details about the consumer, including their name, residence, the nature of the transaction including date, time, location, and descriptions, including a photograph, of the item involved. Cf. id. at 350 (holding it to be "common sense" that a bank account's beneficiary would customarily keep "essential information as the bank's name, the maximum amount held in the account each year, and the account number"). Indeed, Plaintiff's own "pawn ticket," provided to customers, requires and records the customer's name, address, the time, date, location of the transaction, and a short description of the pledged item. (See Pawn Ticket, annexed to Def. Mot. as Ex. F, Docket Entry No. 86-5.) The pawn ticket also states that "proper id[entification] is required for all transactions." (Id. ) Because of the unique nature of each item involved in every transaction, Plaintiff would not be able to function without such detailed records. "[A]s a party to the transaction, [much of the information required are of a kind that Plaintiff] already possesses or would acquire in its own interest." California Bankers , 416 U.S. at 67, 94 S.Ct. 1494 ; (see also Dambrot Dep. 150:7-13 ("After [fifteen days], [the pledged items are] sent to the main branch for examination, inventory.").)
(3) The "public aspects" prong
The third prong asks whether the required records "have assumed public aspects which render them at least analogous to public documents." In re Grand Jury Subpoena , 741 F.3d at 351 (quoting Grosso , 390 U.S. at 68, 88 S.Ct. 709 ) (internal quotation marks omitted). "The rule ... is that records required to be created under an otherwise valid regulatory regime necessarily have 'public aspects' for purposes of the required records exception." Id. However, "[a] constitutionally infirm statute cannot recharacterize private information as public." Id. Nevertheless, "[t]he record need not be 'public' in that anyone can examine or copy it at any time; it need only be lawfully required to be kept." Id.
The records at issue are created under a valid regulatory regime and Plaintiff also does not challenge the aspect of the regulatory scheme requiring that records be kept. Instead, Plaintiff challenges the manner in which its premises and records may be inspected and obtained by law enforcement, including the new electronic requirements. (See generally Pl. Mem.; Pl. Reply.) Under Second Circuit precedent, the records and the information therein have "public aspects" for purposes of the required records exception. Thus, the information in the records meet all three prongs of the required records doctrine. Accordingly, the information in the records is not protected by the Fourth Amendment.
C. Consistent with the reasoning in Burger
The above reasoning is also consistent with Burger . As the Court explained in its March 17, 2014 Decision:
It is well-accepted that although the owner or operator of a business has a reasonable expectation of privacy in commercial property , this expectation is different from, and less than, a similar expectation in an individual's home. "This expectation is particularly attenuated in commercial property employed in 'closely regulated' industries."
Gem I , 2014 WL 1010408, at *6 (citations omitted and emphasis added). In Burger , the Supreme Court recognized that "owner[s] or operator[s] ... in a 'closely regulated' industry ha[ve] [some, albeit] reduced expectation of privacy" in the "commercial premises ," including the records and property thereon. Burger , 482 U.S. at 700, 702, 107 S.Ct. 2636 (emphasis added). However, the Supreme Court did not necessarily find a reasonable expectation of privacy in the information in the records. Reviews of the records and their content were only indirectly limited by the constraints in "time, place, and scope" of the physical inspections of the premises. Id. at 711, 107 S.Ct. 2636 ; see also id. at 711-12, 107 S.Ct. 2636 ("[T]he inspectors may examine the records, as well as 'any vehicles or parts of vehicles which are subject to the record keeping requirements of this section and which are on the premises.' "); id. at 700, 107 S.Ct. 2636 ("Certain industries have such a history of government oversight that no reasonable expectation of privacy could exist for a proprietor over the stock of such an enterprise." (citations omitted) ).
Because Plaintiff does not have a reasonable expectation of privacy in the recorded information, there can be no Fourth Amendment violation for review or collection of such information. Accordingly, Plaintiff may challenge the search and seizure of the pledged items, and the physical records maintained on-site but not the information required to be kept by statute.
2. Consent and plain view doctrine as to the seized items
Regardless of whether the Plaintiff retained a reasonable expectation of privacy in the pledged items, Defendant argues that all seizures or holds were pursuant to consent or the plain view doctrine because Dambrot, as Plaintiff's representative, consented to all the expressly identified seizures and holds, except one. (Def. Mem. 3.) In addition, Defendant argues that at least a few of the items were also seized under the plain view doctrine after Dambrot consented to bring officers to areas in which the pledges were stored. (Id. ) Defendant further argues that, because the NYPD had probable cause to believe the expressly identified pledged items seized or held were stolen, the plain view doctrine applies, making the seizures proper. (Id. at 3, 7.) Plaintiff contends that Dambrot never voluntarily consented, only acquiescing after officers threatened him with arrest and/or business disruption. (Pl. Mem. 13.) In addition, Plaintiff argues there were many other pledges that were seized or held in addition to those specifically identified in the Amended Complaint. (Id. )
A. Both the "actual" seizures and police holds are seizures within the meaning of the Fourth Amendment
As discussed supra , "[a] seizure occurs when the Government interferes in some meaningful way with the individual's possession of property." Ganias , 755 F.3d at 133 (citations omitted); Soldal v. Cook Cty., Ill. , 506 U.S. 56, 62-64, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992) (explaining a seizure occurs when one's property interests are violated). "The rights and benefits of property ownership ... include not only the right to actual possession of a thing, but also the right to exclude others from possessing it, ... and the right to sell, alienate, waste, or even destroy it." Almeida v. Holder , 588 F.3d 778, 788 (2d Cir. 2009) (citing Hon. James L. Oakes, " Property Rights" in Constitutional Analysis Today , 56 Wash. L. Rev. 583, 589 (1981) ).
Both the "actual seizures" and the police holds are seizures within the meaning of the Fourth Amendment. Plaintiff has possessory and ownership interests in all the pledged items. (See supra pp. 481-83.) By taking pledged items away, the NYPD eliminated actual possession-a complete interference with its "possessory interests." United States v. Jacobsen , 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984) ; see also United States v. Haqq , 278 F.3d 44, 50 (2d Cir. 2002) ("Accordingly, because the Supreme Court in [ Arizona v. Hicks , 480 U.S. 321, 324, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987),] held that the search of the stereo equipment was unlawful, it necessarily also found ... that the defendant had a legitimate expectation of privacy in that equipment, despite its having been stolen."); Restatement (Second) of Torts § 229 (1965) (" 'Proprietary interest' is used to denote any right of ownership of an interest in relation to the chattel which would entitle the actor to retain its possession permanently, indefinitely, or for a period of time ." (emphasis added) ). The placement of a hold also meaningfully interfered with Plaintiff's possessory or property interests. Possessory interests inherently inhere a "right to sell, alienate, ... or even destroy" the property at issue. Almeida , 588 F.3d at 788. Despite retaining physical possession of the items placed on hold, Plaintiff could not fully exercise its possessory interests.
B. Plaintiff did not voluntarily consent
Officers may effectuate a search and seizure of property "without violating the Fourth Amendment if the owner or lawful custodian voluntarily gives consent." United States v. Peterson , 100 F.3d 7, 11 (2d Cir. 1996). "Whether an individual has voluntarily given consent is essentially a fact-based inquiry that must be determined by the totality of all the circumstances." United States v. Wilson, 11 F.3d 346, 351 (2d Cir. 1993) (quoting Schneckloth v. Bustamonte , 412 U.S. 218, 227, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) ) (internal quotation marks omitted), cert. denied, 511 U.S. 1025, 114 S.Ct. 1415, 128 L.Ed.2d 86 (1994). "Consent must be a product of that individual's free and unconstrained choice, rather than a mere acquiescence in a show of authority." Id. (citations omitted); see also Fla. v. Bostick , 501 U.S. 429, 438, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (" 'Consent' that is the product of official intimidation or harassment is not consent at all. Citizens do not forfeit their constitutional rights when they are coerced to comply with a request that they would prefer to refuse.").
"In examining all the surrounding circumstances ..., account must be taken of subtly coercive police questions, as well as the possibly vulnerable subjective state of the person who consents." Corbett v. City of New York , No. 15-CV-09214, 2017 WL 3207783, at *9 (S.D.N.Y. July 27, 2017) (quoting Schneckloth , 412 U.S. at 228, 93 S.Ct. 2041 ). Courts also take into consideration "the age, intelligence and educational background, [and] the length and nature of [a party's] interaction with the police." United States v. Zaleski , 559 F.Supp.2d 178, 185 (D. Conn. 2008) (citations omitted). "[T]he ultimate question presented is whether 'the officer had a reasonable basis for believing that there had been consent to the search.' " United States v. Isiofia , 370 F.3d 226, 231 (2d Cir. 2004) ; see Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991) ("The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of 'objective' reasonableness-what would the typical reasonable person have understood by the exchange between the officer and the suspect?").
In section 1983 actions, the Second Circuit has generally imposed "only a burden of production, i.e. , 'the duty of producing evidence of consent' " on the defendant. Tirreno v. Mott , 375 Fed.Appx. 140, 142 (2d Cir. 2010) ("[T]he law of this Circuit is not clear in assigning the burden of proof regarding consent in a § 1983 action for unlawful search."); Ruggiero v. Krzeminski , 928 F.2d 558, 563 (2d Cir. 1991) ("[T]he presumption may cast upon the defendant the duty of producing evidence of consent or search incident to an arrest or other exceptions to the warrant requirement."). "[A]s in all civil cases, 'the ultimate risk of non-persuasion ... remain[s] squarely on the plaintiff." Harris v. O'Hare , 770 F.3d 224, 234 n.3 (2d Cir. 2014) (quoting Ruggiero, 928 F.2d at 563 ) (discussing burden requirements of warrantless searches in the context of the exigent circumstances exception), as amended (Nov. 24, 2014).
Under the circumstances of this case, a reasonable juror could conclude that the consent provided on a number of occasions was involuntary. Dambrot testified that he was threatened with arrest if he did not automatically comply with police officers' seizure or hold requests. In particular, Dambrot testified that officers threatened to arrest him for "possession of stolen property and interference with government administration" when he requested a warrant or further information. Defendant does not necessarily dispute such threats were made. (See Def. Mem. 11 n.8 (noting that there were at most three separate threats described in the record).) Instead, Defendant argues that threats of arrest are not coercive as a matter of law where there is probable cause to arrest. (See Def. Mem. 5.) In support of this argument, Defendant proffers evidence that most, if not all, of the items were subject to lawful investigations with probable cause to seize the pledges as stolen property. (See Def. Mem. 8.)
The evidence that there was probable cause to seize the items does not mitigate the threat of arrests and the involuntariness of the consent. Indeed, Defendant provides no evidence that the officers had any probable cause to arrest Dambrot and the other employees for knowing possession of stolen property and interference with government administration-the crimes for which they were threatened. See N.Y. Penal Law § 165.40 ("A person is guilty of criminal possession of stolen property in the fifth degree when he knowingly possesses stolen property, with intent to benefit himself or a person other than an owner thereof or to impede the recovery by an owner thereof."); N.Y. Penal Law § 195.05 ("A person is guilty of obstructing governmental administration when he intentionally obstructs ... by means of intimidation, physical force or interference, or by means of any independently unlawful act ...."). Instead, the only evidence in the record suggests that the officers were impermissibly asserting that Dambrot's requests for warrants or more substantial evidence were themselves the justifications for arrest. See Dancy v. McGinley , 843 F.3d 93, 112 (2d Cir. 2016) (holding "noncompliance with [police officer's] orders could not furnish ... probable cause to arrest" for obstruction of governmental administration); 5 Borough Pawn, LLC. v. Marti , 753 F.Supp.2d 186, 196 (S.D.N.Y. 2010) (holding a reasonable juror could conclude that pawnshop employee was "actually arrested for failing to consent to an unlawful search of the pawnshop's safe"); (see also Patrol Guide: Inspections of Pawnbrokers and Second-Hand Dealers ("Patrol Guide") 3, annexed to Def. Mem. as Ex. Q, Docket Entry No. 86-7 ("Pawnbrokers ... are legitimate businesses ... However, a pawnbroker ... can sometimes unknowingly be serving as a 'fence' for unscrupulous criminals." (emphasis added) ).)
In addition to the threats of arrest, Dambrot also testified that officers threatened to "tear [stores] apart," harass customers, and otherwise disrupt business if he did not comply with their requests to seize collateral. (Dambrot Dep. 126:13-20.) While officers are certainly allowed to inform the public of lawful consequences of a refusal to consent, including the obtainment and execution of a search warrant, the manner in which the message is conveyed is relevant to a determination of voluntariness. Under the circumstances, a jury could find that the officers were attempting to coerce Dambrot through thinly veiled-threats. We Buy, Inc. v. Town of Clarkstown State of New York , No. 06-CV-1794, 2006 WL 3016314, at *8 (S.D.N.Y. Oct. 20, 2006) ("[A] jury could find that, under the circumstances, the police were not merely providing [workers] information on which to base their decision, but attempting to overcome their resolution not to consent."). Courts have held similar threats that officers would tear houses apart to be sufficiently coercive to overcome a finding of voluntary consent. See United States v. Turner , 23 F.Supp.3d 290, 309 (S.D.N.Y. 2014) ("[C]ourts have found threats to one's home ... to render involuntary individuals' consent to search their premises."); United States v. Taft, 769 F.Supp. 1295, 1306 (D. Vt. 1991) (consent involuntary where, inter alia, police threatened that the suspect's "house would be torn up if a search warrant had to be obtained"); see also United States v. Kampbell , 574 F.2d 962, 963 (8th Cir. 1978) (consent coerced where defendant was told, after refusing to consent, that a search warrant would give the police "the authority to tear the paneling off the walls"). Although private homes are afforded greater protections than commercial premises, the Court does not find a meaningful distinction in the effect such threats would have on an owner or employee of a business in comparison to a homeowner. Dambrot was effectively left with two impossible choices-exercise Plaintiff's rights and allow that to be the very basis for his arrest and destruction of his employer's business, or acquiesce to any and all, even unlawful, demands.
Based on the totality of the circumstances, the Court finds that a reasonable jury could find a lack of consent for many of the seizures and holds at issue. Indeed, as explained infra , there is evidence to suggest that a threat of arrest or business disruption preceded every request to seize an item. (See infra pp. 490-93.) Plaintiff cannot be said to have consented merely because the police successfully acquired acquiescence by intimidation and harassment. See Bostick , 501 U.S. at 438, 111 S.Ct. 2382 ; Wilson , 11 F.3d at 351.
C. Plain view doctrine does not apply
" 'Under the plain-view exception' to the Fourth Amendment's requirement of a warrant for search and seizure, 'if police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant.' " United States v. Delva , 858 F.3d 135, 149 (2d Cir. 2017) (quoting Minnesota v. Dickerson , 508 U.S. 366, 375, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993) ).
The record does not support Defendant's contention that all the seizures and holds came within the purview of the plain view exception. Defendant does not dispute that many, if not all, of the collateral items at issue were stored in a vault. (Def. Mem. 9.) Other than the consent argument discussed supra , Defendant does not assert that police officers had any lawful right of access to the vault. Defendant, for example, does not argue that the officers were allowed to enter the vault pursuant to an administrative inspection. To the contrary, Defendant admits that the vault and the items within can only be accessed by officers via consent. (See Def. Mem. 13 ("However, as collateral jewelry is stored in a vault, [Gem] could have prevented the removal of the collateral jewelry by refusing to remove the item from the vault."); Doephner Dep. 62:20-23 ("If the officer wanted to go into the pawnbroker's safe or vault and remove things without the pawnbroker's consent, he would need a search warrant.").)
To the extent officers did not have lawful access to be in a position to view the seized or held pledges, the plain view doctrine does not apply. By the very definition of the doctrine, the plain view exception cannot apply to items that are not visible to officers. Officers cannot overcome this basic requirement by unlawfully requiring items to be presented before them, even if there was probable cause to believe the collateral were stolen. See Payton v. New York , 445 U.S. 573, 587, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) ("It is one thing to seize without a warrant property resting in an open area ..., and it is quite another thing to effect a warrantless seizure of property, even that owned by a corporation, situated on private premises to which access is not otherwise available for the seizing officer." (quoting G. M. Leasing Corp. v. United States , 429 U.S. 338, 354, 97 S.Ct. 619, 50 L.Ed.2d 530 (1977) ); see also We Buy , 2006 WL 3016314, at *6 (holding that even property that was within the view of officer was not necessarily subject to the plain view doctrine if the object was placed in front of the officer without consent); Winters v. Bd. of Cty. Comm'rs , 4 F.3d 848, 854 (10th Cir. 1993) ("Because the [officer] never saw the ring until it was provided to him by [the pawnshop], justifying the seizure as plain view would be a mischaracterization.").
Under the factual circumstances of this case, a reasonable jury could conclude that the plain view doctrine does not apply to many, if not all, of the collateral items that were seized and held in violation of the Fourth Amendment.
3. Plaintiff has provided sufficient evidence of a widespread policy to satisfy Monell
In order to sustain a claim for relief pursuant to section 1983 against a municipal defendant, a plaintiff must show the existence of an official policy or custom that caused injury, and a direct causal connection