Opinion
DOCKET NO. A-1135-14T3
07-14-2016
EDWARD MINALL and LORI MINALL, his wife, Plaintiffs-Appellants, v. TOWNSHIP OF SCOTCH PLAINS, TOWNSHIP OF SCOTCH PLAINS MUNICIPAL COURT, and DEPUTY COURT ADMINISTRATOR SUSAN EIDE, Defendants, and OFFICER CHRISTIAN OSTROWSKI, OFFICER STANLEY PEARSON, DETECTIVE MARK HAMPTON, LIEUTENANT JOSEPH ZITO, DETECTIVE SERGEANT DONALD JOYCE and SERGEANT MATTHEW FUGETT, Defendants-Respondents.
Joel I. Rachmiel argued the cause for appellants. Timothy P. Beck argued the cause for respondents (DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis, Lehrer & Flaum, P.C., attorneys; Mr. Beck, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and St. John. On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-2764-12. Joel I. Rachmiel argued the cause for appellants. Timothy P. Beck argued the cause for respondents (DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis, Lehrer & Flaum, P.C., attorneys; Mr. Beck, on the brief). PER CURIAM
Plaintiff Edward Minall appeals from the trial court's grant of summary judgment, dismissing his false arrest and false imprisonment claims based in the common law, and the asserted violations of the New Jersey Civil Rights Act (NJCRA), N.J.S.A. 10:6-1 to -2, and federal Civil Rights Act, 42 U.S.C.A. § 1983. Having considered plaintiff's arguments in light of the record and applicable principles of law, we affirm.
Plaintiff's wife Lori Minall is also a plaintiff in this action asserting loss of consortium.
I.
Plaintiff's complaint arises out of his arrest in the early morning hours of September 8, 2011, for: aggravated assault, N.J.S.A. 2C:12-1(b)(2); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); and unlawful possession of a weapon, N.J.S.A. 2C:39-5(d). It was subsequently determined that plaintiff was not the assailant and all charges against him were administratively dismissed.
The facts are not materially in dispute, and plaintiff accepts the facts as found by the motion judge "in his written opinion." Prior to issuing his opinion, the judge heard testimony from a witness and four of the defendants.
On September 7, 2011, at about 11:55 p.m., Lieutenant Joseph Zito of the Scotch Plains Police Department (SPPD) received a 9-1-1 call regarding a possible assault with a weapon on Hilltop Road. Detective Stanley Pearson of the SPPD was dispatched to the home on Hilltop Road of the victim, Michael Filippone. Due to the nature of the charges, Zito felt that it would be appropriate for him to also go to Filippone's house in order to make sure that everything was done correctly.
Zito met Pearson at Filippone's house and observed that Filippone's teeth were broken and that he had injuries to his face around his mouth. Filippone seemed coherent, and Zito did not believe that Filippone had any difficulty imparting information.
Filippone told Zito that the assailant was a neighbor, but he did not know his name. Filippone further explained that the assailant had shouted and banged on the door and possibly the windows of his house earlier that day. The victim told Zito that the assailant had hit him in the face with a pipe/tire iron earlier that evening, at around 9:30 p.m. According to Filippone, there was a history of confrontations between him and the assailant regarding Filippone's manner of driving in the neighborhood. Zito summoned a medical squad to treat the victim's injuries, but he refused further treatment.
Although Filippone was not able to provide the assailant's name, he told Zito that the assailant lived nearby, on White Oak Avenue, and drove a black Chevrolet Avalanche. Zito drove around the block to White Oak Avenue and observed a black Chevrolet Avalanche parked in plaintiff's driveway. Zito relayed the vehicle's license plate number to dispatch in order to obtain the name and photo identification of its registered owner.
In addition to corroborating Zito's testimony, Pearson stated that he observed dried blood on Filippone's mouth, as well as bruising on his face and neck. Pearson also confirmed that Filippone was coherent and able to relate what and when events occurred.
Filippone was taken back to SPPD headquarters, where he was shown plaintiff's DMV photo. Upon seeing the photo, Filippone positively identified plaintiff as the person who banged on his door earlier that day and assaulted him that evening. Filippone advised Zito that he was afraid because of the assault and prior encounters with the assailant. Due to the circumstances and severity of Filippone's injuries, and because two residents of Scotch Plains were involved, Zito decided that it would be appropriate to "go further" and get the victim's visual confirmation of the assailant's identity.
Accordingly, Zito, Pearson, and Filippone, along with SPPD Officer Christian Ostrowski and Detective Mark Hampton, went to plaintiff's house around 1:00 to 1:30 a.m. Pearson and Ostrowski arrived in marked vehicles, and Zito, Hampton, and Filippone arrived in an unmarked vehicle. Pearson and Ostrowski approached the door. Zito stood outside the unmarked vehicle and Filippone stayed inside.
Pearson and Ostrowski either knocked on the front door or rang the doorbell and plaintiff's wife answered the door. Ostrowski, and perhaps Pearson, stepped inside the home. Plaintiff's wife summoned plaintiff, who was sleeping, to come downstairs to the front door. The officers asked plaintiff to step outside, but, as he was in his pajamas, he asked to change his clothes and went back upstairs. While plaintiff was getting changed, the officers asked his wife if there were any weapons in the house, and she replied that there were hunting rifles. Once dressed, plaintiff retuned downstairs, stepped outside, and down the front steps. Zito activated the high beams on his vehicle.
Zito asked Filippone if he was sure that plaintiff was the assailant and Filippone replied, "100%." Zito then told Pearson to arrest plaintiff, and he was handcuffed and taken into custody. Although plaintiff informed the officers that they were arresting the wrong person, Zito believed that he had probable cause to arrest plaintiff based on Filippone's description of where the assailant lived, description of the vehicle, positive identification of plaintiff from his DMV photo, and in-person positive identification of plaintiff as the assailant.
Zito testified that he followed a CDR-2 protocol, which entailed a complaint/warrant requiring bail, as opposed to a CDR-1, which is a complaint/summons with no bail, due to the initial earlier threat followed by the evening's assault. Zito further testified that he believed that probable cause to arrest plaintiff existed before the in-person identification, but that he wanted to "enhance" the probable cause because he was unsure of the age of the DMV photo.
Plaintiff was brought to headquarters at around 2:15 to 2:30 a.m. Hampton remained at headquarters to take statements. Shortly after plaintiff's arrival at headquarters, an intoxicated Michael Carberry arrived. Carberry told Zito that the police "ha[d] the wrong guy," and that "maybe [he] had something to do with [the assault]" and "maybe [he] didn't [have any involvement with the assault]."
In order to determine whether Carberry was actually the assailant, Hampton shut the lights off in the office where Filippone was seated and had Carberry walk by in the illuminated hall. Filippone denied that Carberry was the assailant and reiterated that it was plaintiff. As a result, Carberry was told to walk home. Plaintiff was booked and remained in custody overnight until his wife was able to post bail the next morning. The charges against plaintiff were not dismissed by the Union County Prosecutor until Carberry was indicted.
However, Carberry's drunken foray into police headquarters was not his first contact with the police that evening. Ostrowski had been dispatched to Filippone's house at about 9:20 p.m., two hours before Filippone called the police. Gregory Hughes, another resident of Hilltop Road, who lives a few houses from Filippone, testified that he had heard an altercation in the cul-de-sac at about 9:30 p.m. Hughes went outside and only saw a "couple of figures" due to the darkness. Hughes asked if everyone was okay, and someone told him to call the police.
Hughes called 9-1-1 and described an altercation in front of Filippone's house. He also told the operator that "my neighbor, who might be drunk, has been driving around the neighborhood and is belligerent." At that time, Filippone was referred to as "Batman" in the neighborhood because of how he drove his car, and Hughes was not aware of his actual name.
Prior to calling 9-1-1, Hughes approached Filippone's house and saw him rolling a tire up the driveway while mumbling something about an altercation. Carberry was the other person involved in the altercation and told Hughes that he had been bothered by Filippone's reckless driving in the neighborhood. Carberry had taken Filippone's tire from the side of his house and put it in the driveway, so that Filippone would have to exit his vehicle and confront Carberry prior to entering his garage.
Carberry told Hughes that Filippone had attempted to hit him with a pipe, and that Carberry had managed to take the pipe and subsequently used it to hit Filippone. Hughes stated he heard Carberry tell that same story to Ostrowski. Carberry explained to Ostrowski that he wanted to do something about Filippone's reckless driving. When Carberry told Ostrowski about disarming and hitting Filippone, Ostrowski replied, "You probably shouldn't have told me that."
Ostrowski largely confirmed Hughes' testimony, but denied that Carberry had informed him of the altercation and denied saying, "You probably shouldn't have told me that." Ostrowski had been dispatched at about 9:20 p.m. to Filippone's house on a complaint of a "neighborhood dispute." Ostrowski stated that the conversation was only about Filippone's speeding. Ostrowski knocked on Filippone's door, but received no response.
Moreover, Ostrowski stated that it was only after plaintiff's arrest that he learned it was a neighborhood dispute/assault and that Hughes had said that Carberry was involved. The judge did not find Ostrowski's statements credible. However, the judge did note "that even if Ostrowski had mentioned the earlier incident and the officers corralled Carberry at that point for Filippone to see, he still would have identified Minall, just as he did at headquarters after Minall's arrest."
On August 3, 2012, plaintiff filed suit. The complaint named the individual officers, the Township of Scotch Plains, its Municipal Court, and its Deputy Court Administrator as defendants. Defendants filed a motion for summary judgment, and plaintiff filed a cross-motion for summary judgment as to liability against the individual officers. Following oral argument, the court denied both motions.
In the same order denying plaintiff's motion for summary judgment, the judge indicated that a "R[ule] 104 hearing shall take place prior to trial." On August 19 and September 4, 2014, the judge heard Rule 104 testimony from Hughes, and defendants Ostrowski, Pearson, Zito, and Hampton.
On September 26, 2014, the judge issued an opinion granting the individual officers summary judgment based upon their qualified immunity defense. On October 6, 2014, the court filed an order granting summary judgment to the officers and the Township and denying plaintiff's cross-motion for summary judgment as to liability. This appeal ensued as to the individual officers only.
II.
Plaintiff contends that the judge erred in granting summary judgment to the individual officer defendants based upon qualified immunity, and in concluding that exigent circumstances existed, justifying his warrantless arrest at his home.
We review the court's grant of summary judgment de novo applying the standard set forth in Brill v. Guardian Life Insurance Co. of America, 142 N.J. 520, 540 (1995) and Rule 4:46. Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 329-30, (2010). We "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill, supra, 142 N.J. at 540. Judgment shall be granted if the motion record evidence shows "there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c).
The Court has recently addressed the qualified immunity of police officers in Morillo v. Torres, 222 N.J. 104 (2015). There the Court explained that:
[t]he doctrine of qualified immunity shields law enforcement officers from personal liability for civil rights violations when the officers are acting under color of law in the performance of official duties. This protection extends to suits brought under 42 U.S.C.A. § 1983 and under New Jersey's analogue, the Civil Rights Act, N.J.S.A. 10:6-1 to -2.To establish a claim under the NJCRA, a plaintiff must prove that the defendants, acting under color of law, deprived him of a constitutional or statutory right. Wildoner v. Borough of Ramsey, 162 N.J. 375, 385 (2000).
[Id. at 107-108.]
It is undisputed that there is a constitutionally created right to be free from arrest and imprisonment in the absence of probable cause. Patzig v. O'Neil, 577 F.2d 841, 848 (3d Cir. 1978). In the context of a civil rights claim, however, even if probable cause is lacking, "defendants may be entitled to assert a defense of qualified immunity if they reasonably believed that probable cause existed." Wildoner, supra, 162 N.J. at 385; see also Morillo, supra, 222 N.J. at 117-18. Thus, a law enforcement official can defend against a NJCRA action if the officer can prove that he acted with probable cause, or if "a reasonable police officer could have believed in its existence." Kirk v. City of Newark, 109 N.J. 173, 184 (1988) (citing Anderson v. Creighton, 483 U.S. 635, 663, 107 S. Ct. 3034, 3052, 97 L. Ed. 2d 523, 546 (1987)).
In the context of a false arrest or false imprisonment claim, "[p]robable cause exists if at the time of the arrest 'the facts and circumstances within [the officers'] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the [suspect] had committed or was committing an offense.'" Connor v. Powell, 162 N.J. 397, 409 (alterations in original) (quoting Wildoner, supra, 162 N.J. at 389), cert. denied, 530 U.S. 1216, 120 S. Ct. 2220, 147 L. Ed. 2d 251 (2000). "In determining whether probable cause existed, a court should consider the 'totality of the circumstances,' including the police officer's 'common and specialized experience.'" Bayer v. Twp. of Union, 414 N.J. Super. 238, 263 (App. Div. 2010) (citations omitted).
The Wildoner Court found that "a law enforcement official can defend a section 1983 claim by establishing either that he or she acted with probable cause, or even if probable cause did not exist, that a reasonable police officer could have believed in its existence." Wildoner, supra, 162 N.J. at 386 (quoting Kirk, supra, 109 N.J. 173, 184 (1988)); see also, Morillo, supra, 222 N.J. at 118-19; Bayer, supra, 414 N.J. Super. at 262. The Court also recognized the use of the summary judgment procedure is favored so as to give meaning to the grant of qualified immunity:
We also recognized that the Supreme Court has interpreted Section 1983 "to limit the rights of plaintiffs and to encourage disposition of the actions as a matter of law, at least when these actions arise out of an alleged unlawful arrest, search, or seizure by a law enforcement officer." [Kirk, supra, 109 N.J. at 179]. Qualified immunity "is an immunity from suit rather than a mere defense to liability" that is effectively lost if the case is allowed to go to trial. Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806, 2815, 86 L. Ed. 2d 411, 425 (1985); see also Kirk, supra, 109 N.J. at 182 (holding that in the future we expect that similar cases will be determined by motions for summary judgment). For that reason, a defendant's entitlement to qualified immunity is a question of law to be decided early in the proceedings as possible, preferably on a properly supported motion for summary judgment or dismissal.See also Morillo, supra, 222 N.J. at 119 ("Procedurally, the issue of qualified immunity is one that ordinarily should be decided well before trial, and a summary judgment motion is an appropriate vehicle for deciding that threshold question of immunity when raised.").
[Wildoner, supra, 162 N.J. at 386-87.]
Plaintiff argues that "no police officer under the circumstances would find it objectively reasonable to embark upon plaintiff's warrantless, middle-of-the-night knock on the door, show-up, and warrantless arrest." He argues that, under both the State and Federal Constitutions, "courts . . . apply a much more stringent Fourth Amendment standard to residential entries than to any other settings in search and seizure jurisprudence." He contends defendants acted inappropriately when they arrived at his home in order to effectuate a "live show up." Plaintiff further asserts that there was no exigency to justify a warrantless home entry by the police.
We assume, without deciding, that the police entered the plaintiff's home without the consent of plaintiff's wife to effectuate plaintiff's arrest. Nor do we need to address whether the bottom of plaintiff's front steps is subject to Fourth Amendment protection.
There is nothing in the record indicating that the police either forced their way into the home or were not invited into the home. Further, the record does not demonstrate that the police forced the plaintiff to step outside of the house and descend the stairs.
We note areas of a property open to the public are subject to a diminished expectation of privacy. See State v. Johnson, 171 N.J. 192, 209 (2002). "What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection." Ibid. (alteration omitted) (quoting Katz v. United States, 389 U.S. 347, 351, 88 S. Ct. 507, 511, 19 L. Ed. 2d 576, 582 (1967)). Thus, a front porch open to full view from the street is not "part of the curtilage . . . protected by the Fourth Amendment." Id. at 208. As there is no reasonable expectation of privacy on an open front porch, it is a "public place" in which a person may be arrested without a warrant so long as the police have probable cause to believe a felony has been committed. See State v. Nikola, 359 N.J. Super. 573, 582-83 (App. Div.), certif. denied, 178 N.J. 30 (2003); see also United States v. Santana, 427 U.S. 38, 42, 96 S. Ct. 2406, 2409, 49 L. Ed. 2d 300, 305 (1976); Kirkpatrick v. Butler, 870 F.2d 276, 280 (5th Cir. 1989), cert. denied, 493 U.S. 1051, 110 S. Ct. 854, 107 L. Ed. 2d 848 (1990).
"Curtilage is land adjacent to a home and may include walkways, driveways, and porches." State v. Domicz, 188 N.J. 285, 302 (2006) (citing Johnson, supra, 171 N.J. at 208-09).
We need not address these issues since the motion judge grounded his opinion on the arrest being made with probable cause and exigent circumstances.
Our inquiry begins with "the bedrock constitutional mandates of the Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution, which 'protect citizens against unreasonable police searches and seizures by requiring warrants issued upon probable cause.'" State v. Walker, 213 N.J. 281, 288-89 (2013) (quoting Johnson, supra, 171 N.J. at 205). "The warrant requirement provides citizens with protection from unreasonable arrests by having a neutral magistrate determine probable cause before an arrest is made." State v. Brown, 205 N.J. 133, 144 (2011) (citing State v. Henry, 133 N.J. 104, 110, cert. denied, 510 U.S. 984, 114 S. Ct. 486, 126 L. Ed. 2d 436 (1993)).
"The warrant requirement is strictly applied to physical entry into the home because the primary goal of the Fourth Amendment and Article I, Paragraph 7 of the state constitution is to protect individuals from unreasonable home intrusions." Walker, supra, 213 N.J. at 289 (citing State v. Hutchins, 116 N.J. 457, 462-63 (1989)). This is so because "physical entry of the home is the chief evil" against which constitutional provisions were directed. Hutchins, supra, 116 N.J. at 462-63 (quoting United States v. U.S. Dist. Court, 407 U.S. 297, 313, 92 S. Ct. 2125, 2134, 32 L. Ed. 2d 752, 764 (1972)). Accordingly, a warrantless arrest in an individual's home is "'presumptively unreasonable.'" Id. at 463 (quoting Payton v. New York, 445 U.S. 573, 586, 100 S. Ct. 1371, 1380, 63 L. Ed. 2d 639, 651 (1980)).
Nonetheless, the Court has "adopted the principle that 'exigent circumstances' in conjunction with probable cause may excuse police from compliance with the warrant requirement." State v. Bolte, 115 N.J. 579, 585-86 (1989). Therefore, warrantless home arrests are prohibited "absent probable cause and exigent circumstances." Hutchins, supra, 116 N.J. at 463 (quoting Welsh v. Wisconsin, 466 U.S. 740, 749, 104 S. Ct. 2091, 2097, 80 L. Ed. 2d 732, 743 (1984)); accord Brown, supra, 205 N.J. at 145.
First, we must determine whether the information provided by Filippone, standing alone, is sufficient to establish probable cause. Filippone told the police he was assaulted by a neighbor, described the area where his assailant lived, the car his assailant drove, and then identified his assailant from a photo, and in person. The officers saw the damage to Filippone's face from the assault. We agree that the motion judge was correct in concluding that at the moment of plaintiff's arrest, the reasonably trustworthy facts and circumstances within the officers' knowledge were sufficient to warrant a prudent man to believe that plaintiff had committed an offense and, therefore, probable cause existed for plaintiff's arrest.
We next turn to the consideration of whether exigent circumstances existed justifying the arrest without a warrant. The motion judge found "Zito's testimony as to his belief that there were exigent circumstances to be credible." The judge noted Filippone's fear about an assailant who had come to his house earlier in the day, "banging on his door and shouting and following up that evening with a pipe attack." The judge noted Zito was worried about a "motivated, persistent assailant on the loose, who thought little about striking someone in the face with a pipe," but also recognized that hindsight demonstrated the fear was not accurate. Filippone was in the safety of police headquarters, and clearly Minall was not the assailant. The judge concluded "that Zito had a reasonable, albeit inaccurate, belief that there were exigencies."
When determining whether exigent circumstances exist, courts consider:
the degree of urgency and the amount of time necessary to obtain a warrant; the reasonable belief that the evidence was about to be lost, destroyed, or removed from the scene; the severity or seriousness of the offense involved; the possibility that a suspect was armed or dangerous; and the strength or weakness of the underlying probable cause determination.
[Walker, supra, 213 N.J. at 292 (quoting State v. Deluca, 168 N.J. 626, 632-33 (2001)).]
Zito was faced with allegations of an aggravated assault, committed by an armed assailant, identified on two separate occasions by the victim, via photo and in person, together with corroborating information of the attack and the assailant's identity.
We also note plaintiff's wife's statement that there were hunting rifles in the home. --------
As the United States Supreme Court has recently noted, even telephonic "[w]arrants inevitably take some time for police officers or prosecutors to complete and for [issuing] judges to review," and "improvements in communication technology do not guarantee that [an issuing] judge will be available . . . after making a late-night arrest." Missouri v. McNeely, ___ U.S. ___, ___, 133 S. Ct. 1552, 1563, 185 L. Ed. 2d 696, 709 (2013). In the dangerous circumstances here, it was reasonable to conclude that a delay to obtain a telephonic warrant at 1:30 a.m. could imperil the victim if he returned to his home.
Moreover, the Unites States Supreme Court has analyzed and rejected the argument that the police act unreasonably if they approach a home without a warrant and attempt to investigate their suspicions further when they have already obtained probable cause. See Kentucky v. King, 563 U.S. 452, 461-468, 131 S. Ct. 1849, 1857-62, 179 L. Ed. 2d 865, 875-81 (2011).
Accordingly, we find that the officers' presence at plaintiff's home was justified pursuant to the exigent circumstances exception to the warrant requirement. This exception justified a limited entry necessary to arrest defendant.
We conclude that plaintiff has not presented a genuine issue of material fact regarding the presence of exigent circumstances and probable cause to arrest him. As a result, his claims were properly dismissed and summary judgment granted to defendants.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION