NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4705-16T4
SAYEED AL SHEHAB and FATIMA
YASMEEN,
Plaintiffs-Respondents,
v.
NEW JERSEY TRANSIT CORP.,
P.O. EDUARDO GOMEZ, DET.
MARIANNA TROPEANO and CAPT.
ANDREW KEELAN,
Defendants,
and
P.O. TONI CRUZ and SGT.
DOMINIC IMPERIALE,
Defendants-Appellants.
___________________________________________
Argued October 12, 2017 – Decided November 8, 2017
Before Judges Nugent, Currier and Geiger.
On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Docket No. L-
5277-14.
Beth A. Ferlicchi, Deputy Attorney General,
argued the cause for appellants (Christopher
S. Porrino, Attorney General, attorney;
Melissa H. Raksa, Assistant Attorney General,
of counsel; Ms. Ferlicchi and Daniel M.
Vannella, Deputy Attorneys General, on the
brief).
Steven L. Menaker argued the cause for
respondents (Chasan Lamparello Mallon &
Cappuzzo, PC, attorneys; Mr. Menaker, of
counsel and on the brief).
PER CURIAM
This is a civil rights action in which plaintiffs Sayeed Al
Shehab and Fatima Yasmeen seek damages arising out of the arrest
of Al Shehab for theft of an iPad.1 On leave granted, defendants
Toni Cruz and Dominic Imperiale appeal from the orders denying
their motions for summary judgment and reconsideration. After a
careful review of the record and applicable legal principles, we
reverse.
I.
When viewed in a light most favorable to the non-moving
plaintiffs, we glean the following facts from the record.2 On
October 1, 2013, members of the New Jersey Transit Police
Department were conducting an undercover sting operation to combat
theft of personal property at the Pavonia-Newport station of the
1
Unless otherwise indicated, references in this opinion to
plaintiff mean only Al Shehab, not Yasmeen.
2
Because defendants moved for summary judgment, we must consider
the facts in a light most favorable to plaintiff and grant
plaintiff all favorable inferences. Brill v. Guardian Life Ins.
Co. of America, 142 N.J. 520, 536 (1995).
2 A-4705-16T4
New Jersey Transit Light Rail line. Both uniformed officers and
officers in plain clothes were present at the station. Officers
placed an unattended "bait iPad" on a bench at the station and
kept it under surveillance.
At the same time, plaintiff was commuting from his job in
Jersey City to his home in Teaneck by using the Light Rail. While
waiting to board a train at the Pavonia-Newport station, plaintiff
heard a woman who had been sitting on a bench yell, "Someone forgot
their iPad!" Officer Cruz, who was in plain clothes, observed
plaintiff pick up the iPad from the bench, hold it aloft, and
repeat, "Someone forgot their iPad." Although a uniformed New
Jersey Transit police officer was approximately "six to seven
feet" away from plaintiff at this time, plaintiff did not approach
the uniformed officer with the iPad.
Plaintiff alleges that he saw a motion or heard a noise that
led him to believe the iPad's owner was a passenger on the train.
Plaintiff then boarded the train. Cruz followed plaintiff onto
the train and stood within three feet of him. Plaintiff again
asked if anyone forgot their iPad but no one claimed ownership.
A fellow passenger suggested that the iPad might belong to someone
who boarded a southbound train. Another passenger said the iPad
could be taken to New Jersey Transit's Customer Service Office at
the Hoboken terminal.
3 A-4705-16T4
Plaintiff exited the train at Second Street Station, the very
next stop. Plaintiff never approached the train operator with the
iPad. Cruz followed plaintiff off the train. Plaintiff then
walked past another uniformed New Jersey Transit police officer
but did not approach the officer. Plaintiff was about to walk
past Imperiale, who was in plain clothes but wearing a New Jersey
Transit Police badge, when Imperiale stopped him. Plaintiff
admitted that he would have walked past Imperiale if he had not
been stopped. Plaintiff asked, "Is it about the iPad?" Another
officer responded, "What about the iPad?" Plaintiff told Imperiale
that he got on the train because he thought he heard something
that indicated that the owner was on the train. He also said that
someone on the train told him to return the iPad to customer
service in Hoboken. Plaintiff was then arrested for theft of the
iPad, handcuffed, and taken to the Hoboken terminal.
Plaintiff was charged with theft of movable property,
N.J.S.A. 2C:20-3(a). He was detained for approximately three
hours in a holding cell and released on a summons. On October 22,
2013, the Hudson County Prosecutor's Office administratively
downgraded the charge to a disorderly persons offense. On December
3, 2013, a municipal court judge dismissed the charge before trial
at the request of the municipal court prosecutor.
4 A-4705-16T4
Al Shehab and his wife, Yasmeen, filed suit against defendants
New Jersey Transit and several members of the New Jersey Transit
Police Department. In their third amended complaint, plaintiffs
alleged that Officer Eduardo Gomez, Detective Marianna Tropeano,
Officer Toni Cruz, Sergeant Dominic Imperiale, and Captain Andrew
Keelan were liable for false arrest (count one), unlawful
imprisonment (count two), and malicious prosecution (count three).
Plaintiffs further allege that each defendant is liable for
violation of the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to
-2 (count four) and that New Jersey Transit was liable for
negligent hiring, training, and supervision (count five).
Plaintiffs later stipulated to the dismissal of defendants Gomez
and Tropeano.
Plaintiff claimed he incurred legal expenses to defend the
theft charge. He also claimed he was terminated from his job as
a contract consultant as a result of his arrest and was unable to
obtain replacement employment until February 11, 2014. Plaintiffs
claimed they endured severe financial and personal consequences
as a result of Al Shehab's arrest, prosecution, and loss of
employment.
Yasmeen was not present during her husband's arrest or
detention. Although it is not clear from plaintiff's complaint,
it would appear that Yasmeen asserts a derivative per quod claim.
5 A-4705-16T4
After discovery was completed, defendants moved for summary
judgment. The Law Division judge granted summary judgment to
defendants New Jersey Transit, Officer Eduardo Gomez, and
Detective Mariana Tropeano but denied the motion as to defendants
Captain Andrew Keelan, Officer Toni Cruz and Sergeant Dominic
Imperiale. Defendants Keelan, Cruz, and Imperiale moved for
reconsideration. On reconsideration, the judge granted summary
judgment to Keelan but denied it to Cruz and Imperiale.
II.
Our review of a ruling on summary judgment is de novo,
applying the same legal standards as the trial court. Nicholas
v. Mynster, 213 N.J. 463, 477-78 (2013). Summary judgment is
appropriate where "the pleadings, depositions, answers to
interrogatories and admissions on file, together with the
affidavits, if any, show that 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); accord
Brill, supra, 142 N.J. at 528-29.
“An issue of fact is genuine only if, considering the burden
of persuasion at trial, the evidence submitted by the parties on
the motion, together with all legitimate inferences therefrom
favoring the non-moving party, would require submission of the
issue to the trier of fact.” R. 4:46-2(c). "The inquiry is
6 A-4705-16T4
'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.'" Liberty Surplus Ins.
v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting
Brill supra, 142 N.J. at 536).
“The motion court must analyze the record in light of the
substantive standard and burden of proof that a factfinder would
apply in the event that the case were tried.” Globe Motor Co. v.
Igdalev, 225 N.J. 469, 480 (2016). "Thus, 'neither the motion
court nor an appellate court can ignore the elements of the cause
of action or the evidential standard governing the cause of
action.'” Ibid. (quoting Bhagat v. Bhagat, 217 N.J. 22, 38
(2014)).
III.
Defendants contend they are entitled to qualified immunity
because they acted with probable cause, or reasonably believed
that probable cause existed, when they arrested plaintiff.
To determine whether qualified immunity applies, two
inquiries are pertinent: (1) were plaintiff's constitutional
rights violated when the officers arrested him; and (2) "was the
constitutional right being violated clearly established at the
time so that any reasonable officer acting competently in the
circumstances would have known of the constitutional violation."
7 A-4705-16T4
Brown v. State, 230 N.J. 84, 89 (2017). When undertaking this
inquiry, the court must view the facts in the light most favorable
to the party asserting the injury. Id. at 98.
In Brown, the Court provided the following overview of
qualified immunity.
The affirmative defense of qualified
immunity protects government officials from
personal liability for discretionary actions
taken in the course of their public
responsibilities, insofar as their conduct
does not violate clearly established statutory
or constitutional rights of which a reasonable
person would have known. The defense extends
to suits brought under . . . the Civil Rights
Act, N.J.S.A. 10:6-1 to -2.
This state's qualified immunity doctrine
tracks the federal standard, shielding from
liability all public officials except those
who are plainly incompetent or those who
knowingly violate the law.
[Id. at 97-98 (citations omitted).]
The Court also discussed the procedure to be utilized when
determining whether defendants are qualifiedly immune from
liability.
Ordinarily, application of the defense of
qualified immunity is a legal question for the
court rather than the jury; therefore, the
defense should be raised and resolved long
before trial. Qualified immunity relieves an
eligible defendant from the burden of trial.
An exception to that rule arises when the
case involves disputed issues of fact. In
such a circumstance, the case may be submitted
8 A-4705-16T4
to the jury to determine the who-what-when-
where-why type of historical fact issues,
after which the trial judge may incorporate
those findings in determining whether
qualified immunity applies.
[Id. at 98-99 (citations omitted).]
A.
"[T]he Constitution permits an officer to arrest a suspect
without a warrant if there is probable cause to believe that the
suspect has committed or is committing an offense." Michigan v.
DeFillippo, 443 U.S. 31, 36, 99 S. Ct. 2627, 2631, 61 L. Ed. 2d
343, 349 (1979). "In the absence of probable cause . . . an arrest
is an unreasonable seizure in violation of our Federal and State
Constitutions." State v. Gibson, 218 N.J. 277, 292 (2014).
Therefore, lawfulness of the arrest in this case depends on whether
Cruz and Imperiale had probable cause to believe that plaintiff
had committed or was committing a theft of the iPad or reasonably
believed that probable cause existed. Morillo v. Torres, 222 N.J.
104, 118-19 (2015).
"Probable cause has been defined as a well grounded suspicion
that a crime has been or is being committed, and as a reasonable
ground for belief of guilt." Gibson, supra, 218 N.J. at 292
(citations 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. Basil, 202 N.J. 570, 585
9 A-4705-16T4
(2010). "In 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." Ibid. (citations omitted).
It is well settled that "'probable cause' to justify an arrest
means facts and circumstances within the officer's knowledge that
are sufficient to warrant a prudent person, or one of reasonable
caution, in believing, in the circumstances shown, that the suspect
has committed, is committing, or is about to commit an offense."
DeFillippo, supra, 443 U.S. at 37, 99 S. Ct. at 2632, 61 L. Ed.
2d at 349-50. "Thus, when a plaintiff asserts that he or she was
unlawfully arrested, a law enforcement officer can defend such a
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.'" Morillo,
supra, 222 N.J. at 118-19 (quoting Kirk v. City of Newark, 109
N.J. 173, 184 (1988) (citation omitted)). In determining whether
a "reasonable police officer could have believed" that probable
cause existed to arrest a suspect, Kirk, supra, 109 N.J. at 184,
courts should only consider the facts and circumstances actually
known by the officers when they make an arrest. DeFillippo, supra,
443 U.S. at 37, 99 S. Ct. at 2632, 61 L. Ed. 2d at 349-50.
10 A-4705-16T4
If probable cause existed for the arrest, or if a reasonable
police officer could have believed in its existence, plaintiff's
constitutional rights were not violated and he has no viable cause
of action for false arrest, unlawful imprisonment, malicious
prosecution, or violation of his civil rights.
Plaintiff was arrested for theft of movable property,
N.J.S.A. 2C:20-3(a). "A person is guilty of theft if he unlawfully
takes, or exercises unlawful control over, movable property of
another with purpose to deprive him thereof." N.J.S.A. 2C:20-
3(a).
Here, Cruz observed plaintiff pick up and walk away with the
bait iPad, which she knew did not belong to him. Cruz further
observed him walk past a nearby uniformed officer without
mentioning the iPad and enter the train. Plaintiff did not
approach the train operator regarding the iPad. Cruz followed him
on board and observed him exiting the train at a station other
than where the customer service office was located. Cruz then saw
plaintiff walk by yet another nearby uniformed officer without
mentioning the iPad. Viewed objectively, the officers had a well-
grounded suspicion that plaintiff was committing a theft of the
iPad.
Defendants reasonably discounted plaintiff's explanation
(offered only after he was stopped) that he was planning on going
11 A-4705-16T4
to the customer service office to return the iPad. Arresting
officers are not required to believe protestations of innocence.
The fact that innocent explanations may be proffered for a
suspect's conduct does not necessarily vitiate probable cause.
Illinois v. Gates, 462 U.S. 213, 243 n.13, 103 S. Ct. 2317, 2335
n.13, 76 L. Ed. 2d 527, 552 n.13 (1983) ("In making a determination
of probable cause the relevant inquiry is not whether particular
conduct is 'innocent' or 'guilty,' but the degree of suspicion
that attaches to particular types of noncriminal acts."); United
States v. Funches, 327 F.3d 582, 587 (7th Cir. 2003) ("Of course,
the mere existence of innocent explanations does not necessarily
negate probable cause."); cf. State v. Arthur, 149 N.J. 1, 11
(1997) (stating "simply because a defendant's actions might have
some speculative innocent explanation does not mean that they
cannot support articulable suspicions if a reasonable person would
find the actions are consistent with guilt").
A court must determine whether the evidence of criminal
behavior is sufficient to create probable cause, notwithstanding
possible innocent explanations. Determination of the issue
requires a weighing of the totality of the circumstances. See
State v. Pineiro, 181 N.J. 13, 28-29 (2004) (applying the totality
of the circumstances test in the probable cause context).
12 A-4705-16T4
Although plaintiff's subjective intent to turn the iPad into
lost and found would negate an element of theft, his subjective
intent is not dispositive of whether the officers had probable
cause to arrest him. We must consider only the facts and
circumstances known to Cruz and Imperiale at the time of arrest.
When viewed objectively, the undisputed facts warranted a
reasonable officer to believe that plaintiff had committed or was
committing a theft. Therefore, we find there was probable cause
to arrest plaintiff. Moreover, even if probable cause did not
exist, the facts within the officers' knowledge were sufficient
to warrant a prudent police officer, or one of reasonable caution,
to believe that probable cause existed to charge plaintiff with
theft of the iPad. See DeFillippo, supra, 443 U.S. at 37, 99 S.
Ct. at 2632, 61 L. Ed. 2d at 349-50.
Cruz and Imperiale acted reasonably. "[T]here was neither a
knowing violation of law nor a transgression of the competence
standard demanded of law enforcement officers for qualified
immunity to provide a shield from personal liability . . . ."
Morillo, supra, 222 N.J. at 108. Therefore, each of the causes
of action against Cruz and Imperiale should have been dismissed
as they were entitled to qualified immunity from liability. Id.
at 108, 118-19.
13 A-4705-16T4
B.
Defendants also contend that they are entitled to qualified
immunity because the constitutional right asserted by plaintiff
was not clearly established. Defendants are entitled to qualified
immunity so long as New Jersey law did not clearly establish that
their conduct was unlawful under the circumstances. Brown, supra,
230 N.J. at 106. To make that determination, we would be required
to assess whether, on October 1, 2013 (the date of plaintiff's
arrest), the law was sufficiently clear that a reasonable official
in defendants' position would have known that the warrantless
arrest violated plaintiff's rights. See ibid. (citation omitted).
In view of our holding that there was probable cause, we need
not reach or decide whether the constitutional right asserted by
plaintiff was clearly established as of the time of his arrest.
See e.g., O'Keefe v. Passaic Valley Water Comm'n, 132 N.J. 234,
240 (1993) (explaining that courts should not reach constitutional
questions unless necessary to the disposition of the litigation)
(citing Donadio v. Cunningham, 58 N.J. 309, 325-26 (1971)).
IV.
In summary, we reverse the order denying summary judgment to
defendants Cruz and Imperiale. The trial court is directed to
enter an order dismissing plaintiffs' complaint with prejudice as
to defendants Cruz and Imperiale.
14 A-4705-16T4
Reversed.
15 A-4705-16T4