June 18, 2015

Malicious prosecutor denied where victim chose photo of wrong victim

Malicious prosecutor denied where victim chose photo of wrong victim





April 15, 2015
 Lihotz, St. John and Rothstadt.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-2890-11.
Plaintiff, Richard Martinez, was one of three suspects arrested on charges of murder and attempted murder arising from a 2008 shooting in Mount Laurel Township. The surviving victim identified a single photograph of plaintiff as "Rich," one of the men involved in the shooting, which injured him and killed his brother. This identification, along with other information gathered in the law enforcement investigation, was included in an affidavit of probable cause seeking arrest warrants for the three suspects. 
Plaintiff was arrested, interrogated, and detained in the Burlington County Jail on October 15, 2008, after he was unable to post bail. On March 17, 2010, he was released from custody when the victim, in a subsequent interview, identified a photograph of a different individual stating, "that's Rich." The indictment against plaintiff was dismissed on June 29, 2010. 
Plaintiff filed this civil action against defendants, the County of Burlington (County), Office of the Burlington County Prosecutor (BCPO), and lead Detective Brian Weisbrot (collectively defendants), seeking damages for, inter alia, false arrest, wrongful imprisonment, and malicious prosecution. Following discovery, the BCPO and Detective Weisbrot moved for summary judgment dismissal of the complaint. The County joined in their motion. The judge granted the motions. 
On appeal, plaintiff argues the judge erred because material facts were in dispute regarding whether probable cause to arrest plaintiff was presented. Further, plaintiff asserts qualified immunity did not attach to defeat his claims of false arrest and malicious prosecution. We disagree and affirm. 
These facts are found in the summary judgment record. We view them in the light most favorable to plaintiff.  Robinson v. Vivirito217 N.J. 199, 203 (2014).
On August 16, 2008, at approximately 10:16 p.m., two gunshot victims were found in the parking lot of a Mount Laurel hotel. One victim, Gabriel Figueroa, died from gunshot wounds. The other victim, his brother, Luis Pedroza, was shot in the shoulder and transported to an area hospital. 
Detective Weisbrot of the BCPO interviewed Pedroza. Pedroza recounted the events of August 16, 2008, admitting earlier in the day, he and his brother attempted to broker a narcotics transaction in Camden with an individual he identified as "Rich" and another man from Pittsburg, Pennsylvania identified as "Jay." Pedroza explained he had known and interacted with "Rich" for approximately six years and had served as "a 'middleman' between drug transactions with him." Pedroza gave Detective Weisbrot "Rich's" telephone number. 
According to Pedroza, "Rich" arrived at the agreed Camden location to meet Pedroza and Figueroa, driving a gray Infiniti. The transaction fell through and a struggle ensued after Antonio Streater, also known as "Gordo," and Streater's cousin arrived. An individual identified as Daniel Cruz may have arrived with them as well. Pedroza and his brother jumped into their car to flee because Streater had previously threatened Pedroza. Gun shots rang out and Figueroa returned fire as Pedroza drove. "Rich" then telephoned Pedroza several times threatening his life.
That evening, Pedroza and Figueroa fled to the Mount Laurel hotel. While in the parking lot, Pedroza observed a gray Infiniti pull in, which he identified as one of the vehicles pursuing him in Camden earlier that day. Three men emerged from the Infiniti: "Rich," Streater, and a man later identified by Pedroza as Cruz. Cruz fired his weapon, shooting Pedroza in the shoulder. Pedroza feigned death. Streater and "Rich" began beating Figueroa. Pedroza, who was hiding, heard two more gunshots, then observed "Rich," Cruz, and Streater drive away. Figueroa died from his injuries. 
On August 20, 2008, Detective Weisbrot provided Pedroza photographs of Streater, Cruz, and plaintiff. Pedroza positively identified the three as the individuals involved in the shooting. However, Pedroza identified the photograph of plaintiff only as "Rich," not Richard Martinez. Cellular telephone records for what was believed to be plaintiff's cell phone number were obtained showing the phone had accessed a cellular tower located in the area of the hotel at approximately 9:53 p.m. on the night of the shooting. This was consistent with Pedroza's statements "Rich" had called and threatened his life after the Camden deal fell apart. 
The victim's mother, when interviewed, confirmed Pedroza told her that he and Figueroa were involved in a shooting in Camden with Streater, Cruz, and a man named "Rich" or "Ricky" earlier in the day on August 16, 2008. She also stated she visited Figueroa during the early evening on that day. He told her Streater, Cruz, and a man named "Rich" or "Ricky" were shooting at them in Camden. Finally, she stated while visiting the hospital following the hotel shooting, Pedroza identified Streater, Cruz, and "Rich" as the men who shot him and killed his brother. 
Mount Laurel Police Detective Edward Pincus detailed the facts gathered in the investigation in an affidavit of probable cause, which he submitted to a Superior Court judge to obtain arrest warrants for Streater, Cruz, and plaintiff. The affidavit also contained additional factual statements from investigative interviews that were not entirely consistent regarding the number, genders, races, and appearances of the shooters and the number of shots fired.1 Based on all the information presented, the judge issued the arrest warrants. 
Plaintiff was arrested the following day and taken to the BCPO, where he was interviewed for approximately four and a half hours by Detectives Weisbrot and Pincus. Plaintiff denied any involvement in selling drugs and the shooting, stating he did not know the victims or other suspects. Plaintiff admitted he used the street name "Scorpio." He also denied owning or possessing a gun, a statement he retracted when police informed him a gun was found in his partner's motor vehicle. Police detained plaintiff in the Burlington County jail. Unable to secure bail, he remained in custody.
The BCPO investigation continued while the three suspects were in custody. Detective Weisbrot's October 16, 2008 interview of plaintiff's partner "raised serious concerns regarding the veracity of [plaintiff's custodial] statements . . . ." She linked plaintiff to selling drugs in Camden and heard him speak to individuals named "Jay" and "Gordo." Further, she could not confirm plaintiff's whereabouts the night of the shootings. On April 21, 2009, Detective Weisbrot and Pedroza testified before a grand jury, which returned a four count indictment against plaintiff, Cruz, and Streater. 
In February 2010, plaintiff's then defense attorney informed the BCPO Pedroza may have confused plaintiff with an individual who also went by the name "Rich."2 Counsel denied the BCPO's requests for additional information, claiming privilege. In response to the suggestion of misidentification, the BCPO again met with Pedroza and showed him a photograph of the newly revealed suspect.3 In his deposition, Detective Weisbrot recounted Pedroza's response, stating: 
[DETECTIVE WEISBROT]: What I do know is that Mr. Pedroza had continued to identify [plaintiff] as being the involved party even after the Public Defender's Office had contacted our office and introduced [the new suspect].

[PLAINTIFF'S COUNSEL]: So is it your recollection and understanding that Mr. Pedroza never wavered from his story?

[DETECTIVE WEISBROT]: Mr. Pedroza remained consistent throughout. When you are asking whether he wavered, he had an opportunity to obviously look at the photo of [plaintiff] and he had said that [plaintiff] was the individual who was at the Mount Laurel [hotel] and he also looked at the photograph of [the new suspect] and said that he believed that that was the same individual, that he looked at both individuals and said "[T]hat's Rich."

Although Pedroza had difficulty differentiating the two men from their photographs, he stated the "Rich" involved in the shooting used the street name "Scorpio," and had a tattoo on his arm saying "Scorpio" or "King Scorpio." Pedroza advised he once saw "Rich's" arms and he had several tattoos. Pedroza was shown tattoos of plaintiff's and the new suspect's arms, which he could not identify. 
Detective Weisbrot released his investigative materials to the prosecutor. "[B]ased on the inconclusive photograph identifications," the prosecutor informed the court the State would not be pursuing the charges against plaintiff. Plaintiff was released on his own recognizance. On June 29, 2010, the court granted the BCPO's motion for nolle prosequi of the indictment against plaintiff. 
Plaintiff commenced this action, alleging "[a]s a direct and proximate result of the course of prosecution undertaken by the [BCPO], including Detective Brian Weisbrot, [plaintiff] was caused to lose his gainful employment and was subjected to great damage to his reputation, embarrassment, mental anguish, humiliation, and anxiety." His claims included negligence causing wrongful imprisonment; malicious prosecution; false arrest; false imprisonment; intentional infliction of emotional distress; and violation of 42 U.S.C.A. § 1983. 
Following discovery, the County and the BCPO, on its behalf and on behalf of Detective Weisbrot, moved for summary judgment. The motion judge granted defendants' motion, finding their conduct fell within the scope of their authority and concluding qualified immunity protected the conduct of the County, the BCPO, and Detective Weisbrot. 
We review a summary judgment order using with the same standard as the motion judge.  Townsend v. Pierre, ___ N.J.___, ___ (2015) (slip op. at 27). Therefore, we apply the standard articulated in Brill v. Guardian Life Insurance Company of America142 N.J. 520, 540 (1995), that is in making 
a determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to 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.

See also Town of Kearny v. Brandt214 N.J. 76, 91 (2013); Davis v. Devereux Found.209 N.J. 269, 286 (2012). 
This standard permits the court to consider "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law."  Brillsupra, 142 N.J. at 533 (citation and internal quotation marks omitted). 
While we must view the evidence in the light most favorable to the non-movant, "it is evidence that must be relied upon to establish a genuine issue of fact. Competent opposition requires competent evidential material beyond mere speculation and fanciful arguments."  Cortez v. Gindhart435 N.J. Super. 589, 605 (App. Div. 2014) (citation and internal quotation marks omitted), certif. denied220 N.J. 269 (2015). "'[B]are conclusions in the pleadings without factual support in tendered affidavits, will not defeat a meritorious application for summary judgment.'"  Id. at 606 (quoting Brae Asset Fund, L.P. v. Newman327 N.J. Super. 129, 134 (App. Div. 1999)). 
Here, the motion judge applied the immunity provisions of the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3. Under the TCA, "[a] public employee is not liable if he [or she] acts in good faith in the execution or enforcement of any law[,]" but "[n]othing in this section exonerates a public employee from liability for false arrest or false imprisonment."  N.J.S.A. 59:3-3. The TCA also extends immunity to a public employee "for injury caused by his [or her] instituting or prosecuting any judicial or administrative proceeding within the scope of his [or her] employment."  N.J.S.A. 59:3-8. However, nothing in the TCA will "exonerate a public employee from liability if it is established that his [or her] conduct was outside the scope of his [or her] employment or constituted a crime, actual fraud, actual malice or willful misconduct."  N.J.S.A. 59:3-14(a).
The Supreme Court has instructed how the good faith standard is met. In Alston v. City of Camden168 N.J. 170 (2001), the Court held "[a] public employee either must demonstrate 'objective reasonableness' or that he [or she] behaved with 'subjective good faith.'"  Id. at 186. "The burden of proof is upon the employee, who must prove either of those components in order for the good faith immunity to attach." Toto v. Ensuar196 N.J. 134, 146 (2008) (citing Alstonsupra, 168 N.J. at 186).
Plaintiff's claims include false arrest and malicious prosecution. "A basis for a suit for false arrest arises where the aggrieved party is arrested without legal authority, as where he [or she] is arrested pursuant to process that is void. False arrest . . . is the constraint of the person without legal justification." Mesgleski v. Oraboni330 N.J. Super. 10, 24 (2000) (citation omitted). The essence of the distinct cause of action for malicious prosecution is that a criminal proceeding "was instituted without probable cause, that the complainant was actuated by a malicious motive in making the charge."  Earl v. Winne14 N.J. 119, 134 (1953). It requires proof "(1) a criminal action was instituted by this defendant against this plaintiff; (2) the action was motivated by malice; (3) there was an absence of probable cause to prosecute; and (4) the action was terminated favorably to the plaintiff."  LoBiondo v. Schwartz199 N.J. 62, 90 (2009). 
Underpinning the civil causes of action of false arrest and malicious prosecution is whether probable cause legitimizes the conduct taken by the State actors. "[T]he complainant's lack of probable cause for initiating a criminal proceeding is an essential element of malicious prosecution. While the false arrest plaintiff need not prove the arrester's lack of probable cause, the existence of probable cause is a defense which will nevertheless defeat the action."  Carollo v. Supermarkets Gen. Corp.251 N.J. Super. 264, 269 (App. Div. 1991) (citation omitted), certif. denied127 N.J. 559 (1992). Thus, reciting the parameters of probable cause is important to the examination of plaintiff's claims.
The Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution guarantee protection from arbitrary arrest.  State v. Gibson218 N.J. 277, 281, 292 (2014). "A person cannot be arrested unless there is probable cause to believe that he [or she] has committed or is committing an offense. An arrest without probable cause is an unreasonable seizure in violation of both the Federal and State Constitutions."  Id. at 281.
Probable cause has been defined as "a well[-]grounded suspicion that a crime has been or is being committed," State v. Sullivan169 N.J. 204, 211 (2001) (citation and internal quotation marks omitted), and as "a reasonable ground for belief of guilt," Brinegar v. United States338 U.S. 160, 175, 69 S. Ct. 1302, 1310, 93 L. Ed. 1879, 1890 (1949) (citations and internal quotation marks omitted). It "is more than a mere suspicion of guilt, [but] less than the evidence necessary to convict a defendant of a crime in a court of law." State v. Basil202 N.J. 570, 585 (2010) (citing Brinegarsupra, 338 U.S. at 175, 69 S. Ct. at 1310, 93 L. Ed. at 1890). It "is a fluid concept -- turning on the assessment of probabilities in particular factual contexts" and addresses "'the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.'"  Illinois v. Gates462 U.S. 213, 231-32, 103 S. Ct. 2317, 2328-29, 76 L. Ed.2d 527, 544 (1983) (citation omitted). Last, "[i]n determining whether there was probable cause to make an arrest, a court must look to the totality of the circumstances, and view those circumstances from the standpoint of an objectively reasonable police officer."  Basilsupra, 202 N.J. at 585 (citation and internal quotations marks omitted).

[Id. at 292-93 (second and third alterations in original).]

It is important to understand "'[p]robable cause is a flexible, nontechnical concept[,]'" which "involves a 'conscious balancing of the governmental need for enforcement of the criminal law against the citizens' constitutionally protected right of privacy.'"  State v. Pineiro369 N.J. Super. 65, 70 (App. Div.) (quoting State v. Kasabucki52 N.J. 110, 116 (1968)), certif. denied181 N.J. 285(2004).
These principles are equally applicable when analyzing the civil causes of action alleged in this action.  See LoBiondo,supra, 199 N.J. at 93; Liptak v. Rite Aid, Inc.289 N.J. Super. 199, 214-15 (App. Div. 1996). In the context of a civil claim, determination of the probable cause element "is a matter of law to be determined by the court, and it is only submitted to the jury if the facts giving rise to probable cause are themselves in dispute."  LoBiondosupra, 199 N.J. at 93 (citing Paul v. Nat'l Educ. Ass'n195 N.J. Super. 426, 429 (App. Div. 1984)). The inquiry demands "an objective analysis" of whether "the facts supported the actor's 'honest belief' in the allegations."  Ibid. (citations omitted). "The probable cause needed to defend a false arrest action uses the objective standard of a reasonable and prudent person in like circumstances."  Mesgleskisupra, 330 N.J. Super. at 25. 
Plaintiff challenges the evidence gathered in the investigation as insufficient to establish probable cause for his arrest and, if the evidence is found sufficient, argues the "faulty and inadequate evidence" was "insufficient to sustain continued prosecution." 
The facts surrounding the probable cause to arrest plaintiff were fully detailed in the affidavit of probable cause. The BCPO identified their sources of information and stated all facts obtained, even those that did not perfectly align with one another.4 Plaintiff provides no suggestion the statements contained in the affidavit were erroneous or incomplete, or that the affidavit was improperly executed when submitted. 
Undoubtedly, Pedroza's identification was the dominant, but not the only, evidence relied upon by the detectives to link plaintiff to the shootings. Pedroza saw the men who shot him and killed his brother, and he revealed his prior six-year association with "Rich" and that he had met him earlier in the day. Pedroza explained the earlier Camden drug transaction fell through, causing "Rich" to call Pedroza and threaten his life. Also, he provided a motive for the shooting, relating Streater had previously threatened Pedroza and that they had exchanged gunfire after the Camden deal fell apart. The BCPO and Detective Weisbrot obtained cell phone records for a phone believed to be associated with plaintiff, detectives confirmed the phone accessed a cell tower in the vicinity of the hotel approximately half an hour before the shooting, and the victims' mother related her prior conversations with both of her sons identifying "Rich" or "Ricky" as one of the men who previously shot at them. 
Plaintiff's suggestion that more should have been done to corroborate Pedroza's identification is an assertion illuminated by hindsight, viewed through the lens of Pedroza's later inability to distinguish the photographs shown to him. At the time of plaintiff's arrest, Pedroza had unequivocally identified the photograph of plaintiff as "Rich," whom he personally knew for more than six years from conducting drug transactions. He provided "Rich's" cell phone number and records showed the phone was in the vicinity of the hotel at the time of the shootings. 
We cannot agree with plaintiff that these facts fail to present probable cause for his arrest. Rather, we concur with the Superior Court judge who executed the arrest warrant that the evidence supports a reasonable belief that plaintiff was involved in the extremely serious crimes of murder and attempted murder. An objective review of the totality of this evidence establishes a well-grounded suspicion plaintiff was one of the three men who committed the crimes under investigation.  Gibsonsupra, 218 N.J.at 292. 
Defendants had the legal authority and the factual justification to arrest plaintiff. The existence of probable cause defeats plaintiff's action for false arrest.  See Mesgleskisupra, 330 N.J. Super. at 24-25 (citing Hayes v. Mercer Cnty.217 N.J. Super. 614, 623 (App. Div.), certif. denied108 N.J. 643 (1987)). Accordingly, we find no flaw in the motion judge's analysis concluding defendants were immune from suit and dismissing plaintiff's cause of action for false arrest.  See Malley v. Briggs475 U.S. 335, 344-45, 106 S. Ct. 1092, 1098, 89 L. Ed.2d 271, 280-81 (1986) (holding a police officer who effectuates an arrest pursuant to a warrant is immune from liability unless the warrant application "is so lacking in indicia of probable cause as to render official belief in its existence unreasonable"). 
"[T]he probable cause which confers immunity from false arrest will ordinarily also defeat malicious prosecution claims." Carollosupra, 251 N.J. Super. at 270. However, it is "possible that following an arrest based on sufficient probable cause, circumstances might ensue or facts might become known . . . which would so undermine the reasonableness of an initial belief in the p[erson]'s guilt" underpinning probable cause for arrest as to make continued detention unjustified.  Ibid. Thus, we consider whether defendants' subsequent actions or omissions following plaintiff's arrest fell "outside the scope of [their] employment," constituted "actual fraud, actual malice or willful misconduct," N.J.S.A. 59:3-14(a), or demonstrated his arrest was unsupported, making his continued detention unwarranted. 
During his custodial interview, plaintiff acknowledged he went by the street name "Scorpio," a name Pedroza later gave detectives. Detective Weisbrot interviewed plaintiff's partner, who revealed information that contradicted plaintiff's custodial statement, including that he had been involved in some drug activity in Camden and she once heard him talking to individuals known as "Gordo" and "Jay." Further, she could not confirm plaintiff's whereabouts at the time of the shooting, stating he had left their residence. In April 2009, the grand jury returned an indictment after Pedroza testified to plaintiff's involvement. 
Although plaintiff's public defender revealed exculpatory information concerning the possibility of a second suspect in February 2010, no evidence suggests defendants or any parties involved in the prosecution had prior knowledge of this evidence. The public defender declined to reveal the basis for the information surrounding the possibility of the second suspect's involvement, and Detective Weisbrot and the BCPO immediately commenced an investigation, including interviewing Pedroza and asking him if he could identify the newly revealed suspect. Pedroza was also asked to identify plaintiff's tattoos. Further, detectives interviewed others, including an individual who detectives believed called the cell phone number associated with plaintiff around the time of the hotel shootings. She also had difficulty differentiating the other suspect from plaintiff, stating one photograph of the suspect "looks like [the Rich that she knew], but a little smaller and older" and another "looks more like the guy I know."
At that point, the detectives informed the prosecutor the initial identification was inconclusive. Accordingly, plaintiff was released from custody. This was approximately six weeks after the public defender revealed the possibility of another suspect.
Plaintiff argues that his detention was malicious because defendants did not consider checking the accuracy of Pedroza's photo identification until after the public defender alerted them of the possibility of a misidentification. This claim confuses the issue. Pedroza affirmed he knew his attackers, as he had dealt with them for years; this was not an identification by a victim of a random, unknown assailant. No facts previously suggested Pedroza's initial identification was incorrect. Nothing shows police maliciously or arbitrarily targeted plaintiff for this crime. The police justifiably relied upon the victim's identification of his known assailant.
Following plaintiff's arrest, the detectives did not sit on their hands and wait for trial. They continued interviewing individuals who might solidify the State's case as it had unfolded. The detectives learned plaintiff was not completely candid during his interrogation, and his claimed alibi was not supported by his partner; this and other evidence obtained tied plaintiff to the events, justifying his detention.
Next, the grand jury considered the evidence and returned an indictment. Police may rely on a grand jury's assessment of their gathered evidence.  See Rose v. Bartle871 F.2d 331, 353 (3d Cir. 1989) (holding a grand jury indictment "constitutes prima facie evidence of probable cause to prosecute, but [] this prima facie evidence may be rebutted by evidence that the [indictment] was procured by fraud, perjury or other corrupt means"). 
It was not until defendants learned of the possibility of another suspect that the case weakened. Detectives immediately commenced an investigation. The same day, Detective Weisbrot confronted Pedroza with the photograph of the newly disclosed suspect, and Pedroza suggested it "look[ed] like Rich." Pedroza revealed other identifying details which also were explored. Within weeks, the detectives sought to verify the other identifying information and conducted follow-up interviews with other witnesses. When they concluded the eyewitness' out-of-court identification was inconclusive, plaintiff was released. 
Contrary to plaintiff's assertions, in our view, we determine defendants' conduct was objectively reasonable, not malicious. The detectives' actions show diligent efforts to obtain as much information as possible, despite an eyewitness identification and other circumstantial evidence supporting Pedroza's initial claim of plaintiff's involvement.  See Mesgleskisupra, 330 N.J. Super. at 25 ("'To prevail on a motion for summary judgment, a public employee need not establish his subjective, i.e., actual, good faith if his conduct was objectively reasonable.'" (quoting Brayshaw v. Gelber232 N.J. Super. 99, 110 (App. Div. 1989))). The prosecutor assessed all gathered facts and made the discretionary decision to dismiss the indictment. Defendants acted within the scope of their employment and performed their duties in good faith. The immunity provisions of the TCA apply and liability does not attach.
Based on our opinion we need not address the remaining arguments presented by the parties in their briefs. 

1  The affidavit of probable cause supporting the request for arrest warrants includes some inconsistent witness accounts limited to whether three, four, or five shots were fired; whether the shooters were light-skinned African Americans or Hispanics; and whether the shooters were all men or one was a woman with a "stocky build."
2  The public defender's interview notes show plaintiff was aware of the other person's possible involvement as early as August 26, 2009. The record does not explain why this fact was not revealed sooner.

3  Detective Weisbrot's investigative notes recorded Pedroza's response as "it looks like Rich," and "it looks sort of like Rich, but he doesn't have that mark on his left eye," referring to a tear drop tattoo or birth mark plaintiff has under his eye. The notes also say Pedroza "advised that Rich's hair was longer than the individual depicted in the photograph and that [Rich] often wore a 'fitted hat.'"
4  Plaintiff's contention the inconsistencies in the affidavit show the defendants acted with malice or bad faith is specious. The detectives revealed all facts uncovered from the investigation, allowing the judge to fully evaluate whether probable cause for arrest was presented. 

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