Dominick CARABALLO, Maritza Mullero, Plaintiffs-Appellants, M.N., an infant, Plaintiff, v. CITY OF NEW YORK, John and Jane Does 1 through 10, Damon Martin, and Thomas Fusco, Defendants-Appellees, 526 F. App'x 129

SUMMARY ORDER Plaintiffs-Appellants Dominick Carabal-lo and Maritza Mullero appeal from the district court’s order granting

summary judgment in favor of defendants, on plaintiffs’ claims for false arrest and imprisonment under 42 U.S.C. § 1983. We review a district court’s grant of

summary judgment de novo. Schnabel v. Abramson, 232 F.3d 83, 86 (2d Cir.2000). We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review. “[T]he existence of probable cause to arrest constitutes justification and is a complete defense to an action for false arrest.” Weyant v. Okst, 101 F.3d 845, 852 (2d Cir.1996) (quotation marks omitted).

The district court held that “Defendants Martin and Fusco had reason, as persons of reasonable caution, to believe that persons sleeping in the apartment were residents ... and therefore, in constructive possession of the contraband found therein.” Joint App’x 250. Plaintiffs contend on appeal that (1) this is an erroneous statement of the law, and (2) there is no independent basis to find probable cause. “An officer has probable cause to arrest when in possession of facts sufficient to warrant a prudent person to believe that the suspect had committed or was committing an offense.” Ricciuti v. N.Y.C.

Transit Auth., 124 F.3d 123, 128 (2d Cir.1997). This standard is objective and encompasses “the totality of the circumstances.” United States v. Patrick, 899 F.2d 169, 171 (2d Cir.1990). We “must consider those facts available to the officer at the time of the arrest and immediately before it.” Lowth v. Town of Cheektowaga, 82 F.3d 563, 569 (2d Cir.1996). In the context of a claim for false arrest or false imprisonment brought pursuant to 42 U.S.C. § 1983, moreover, “the defending officer need only show ‘arguable’ probable cause” to be entitled to qualified immunity. Martinez v.

Simonetti, 202 F.3d 625, 634 (2d Cir.2000) (quoting Lee v. Sandberg, 136 F.3d 94, 103 (2d Cir.1997)). Dismissal is therefore appropriate as long as “ ‘officers of reasonable competence could disagree’ on the legality of the action at issue in its particular factual context.” Walczyk v. Rio, 496 F.3d 139, 154 (2d Cir.2007) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)). We have reasoned that “those who are permitted to observe obvious criminal activity in a home are, absent indications to the contrary, likely to be complicit in the offense.” United States v.

Heath, 455 F.3d 52, 57 (2d Cir.2006) (emphasis added). In Heath, we found that there was probable cause for arrest where police officers found bags of cocaine “in plain sight” at the bottom of the arrestee’s stairwell. Id. Other cases cited by the district court and defendants also suggest that a showing of probable cause for possession of contraband necessitates more than mere eo-resi-dency. See, e.g., Torres v. Hanslmaier, No. 94 Civ. 4082, 1995 WL 272527, at *2 (S.D.N.Y. May 8, 1995); People v. Tirado, 47 A.D.2d 193, 195-96, 366 N.Y.S.2d 140 (1st Dep’t 1975).

Here, however, officers found loose, unmarked pills of various colors and shapes in paper bags and unmarked pill containers in the kitchen. Officer Fusco suspected they might be MDMA. The arresting officer was not aware of a field test for MDMA. Notably, the entire search was premised on the confirmed presence of marijuana plants at the apartment on a prior occasion, and, at the scene, officers found heroin in the bedroom.

Thus, with the “totality of the circumstances” informed by the confirmed presence of two different kinds of illegal drugs, it was reasonable for defendants to “draw [an] inference!] based on [their] own experience” that the variously shaped and colored pills in the kitchen were also illegal drugs, especially considering the manner in which they were placed in unmarked containers and bags. See Ornelas v. United States, 517 U.S. 690, 700-01, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996).

The undisputed facts establish that plaintiffs were sleeping in a small apartment in which police found drugs on more than one occasion, including at the time of the arrest, and that defendants found suspected MDMA in a common area of that apartment. These circumstances were arguably sufficient to warrant a prudent person to believe that the plaintiffs were “had knowledge of, and exercised dominion and control over,” the suspected contraband, see Maryland v.

Pringle, 540 U.S. 366, 372, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003), and thus to provide arguable probable cause for plaintiffs’ arrest and temporary imprisonment. Defendants are therefore entitled to qualified immunity. For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.