NOT FOR PUBLICATION WITHOUT THE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-3262-18T3
TORA EVANS,
Plaintiff-Appellant,
v.
DAVID PETRACCA, individually
and in his capacity as a law
enforcement officer with the Ocean
County Prosecutor's Office and
TIMOTHY MEIER, individually
and in his capacity as a law
enforcement officer with the Ocean
County Prosecutor's Office,
Defendants-Respondents.
_______________________________
Submitted February 25, 2020 – Decided March 6, 2020
Before Judges Fisher and Gilson.
On appeal from the Superior Court of New Jersey, Law
Division, Ocean County, Docket No. L-3092-16.
Schiller, Pittenger and Galvin, PC, attorneys for
appellant (Robert B. Woodruff, of counsel and on the
briefs; Jay Bently Bohn, on the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent David Petracca (Sookie Bae, Assistant
Attorney General, of counsel; Ashley L. Costello,
Deputy Attorney General, on the brief).
Hiering, Gannon & McKenna, attorneys for respondent
Timothy Meier (Michael J. McKenna, on the brief).
PER CURIAM
Plaintiff Tora Evans was arrested for a crime he did not commit all
because he happened to be in the vicinity of other criminal conduct. He
remained incarcerated for six weeks before making bail; in the meantime, he lost
his job and claims in this suit he was unable to resume his position as a certified
nursing assistant because of the arrest. As a result of these unfortunate events
and consequences, plaintiff brought this action against two law enforcement
officers – defendants David Petracca and Timothy Meier – whose actions and
statements led to plaintiff's arrest. The trial judge granted summary judgment,
concluding, among other things, defendants were entitled to qualified immunity.
We are constrained to agree and affirm.
The evidence put before the trial judge in the moving and opposing
summary judgment papers reveals that the Ocean County Prosecutor's Office
was conducting a narcotics investigation in March 2015. Their principal target
was B.A. (Anderson, a fictitious name), who was believed to be a large-scale
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2
heroin distributor. As part of this operation, Meier was instructed to conduct
surveillance of a barbershop on River Avenue in Lakewood on March 18, 2015,
because it was believed – based on an intercepted telephone call to Anderson –
that a transaction was about to take place between Anderson and an unidentified
male at the barbershop. Other officers, who were conducting surveillance at
Anderson's residence, watched Anderson retrieve an item from one of his
vehicles and place it in his jacket pocket; he then entered another vehicle and
drove to the barbershop. Approximately fifteen minutes later, a second
telephone call was intercepted during which an unidentified male advised
Anderson he was at the barbershop; Anderson responded that he was arriving.
Defendant Meier was seated in an unmarked vehicle across the street from
the barbershop when Anderson arrived and parked next to a 2008 white Lexus.
He then observed Anderson and the unidentified male driver of the white Lexus
engage in a brief conversation after which both entered the building in which
the barbershop was located. We pause in our description of the police activities
to note that the barbershop was not in a stand alone building. Instead, it was
located in a building that also housed a check cashing company; patrons of both
businesses used the same door to enter.
A-3262-18T3
3
Moments later, Meier observed both Anderson and the unidentified male
exit the building and return to their vehicles. He took photographs of the
unidentified male as he left the building.
On returning to headquarters, Meier was shown two Department of Motor
Vehicle photographs that contained no personal identifiers. The photographs
depicted two different males. Meier identified the males as the individuals he
observed going in and out of the building that housed the barbershop. These
individuals were determined to be Anderson and plaintiff Tora Evans. Meier
later prepared a report that detailed his observations outside the building.
Defendant David Petracca, a detective of the Ocean County Prosecutor's
Office, served as the individual primarily responsible for preparing affidavits to
support the issuance of warrants regarding the investigation. In preparing an
affidavit in support of a warrant for plaintiff's arrest, Petracca asserted that he
relied on information provided by others assigned to the task force, including
the intercepted telephone calls, the surveillance of Anderson and th e building
housing the barbershop, and Meier's report regarding his surveillance and
identification of plaintiff as the individual he observed at the building on March
18, 2015.
A-3262-18T3
4
Twice in his affidavit, Petracca asserted he was "familiar with the voice[]"
of plaintiff; in fact, he was not. Petracca testified at his deposition that he had
never heard plaintiff's voice. In his affidavit, Petracca described the intercepted
telephone calls and, without having obtained information about the subscriber
of the telephone number of those calls attributed to the unidentified male, 1
Petracca asserted in his affidavit that plaintiff was the otherwise unidentified
caller who had sought to purchase heroin from Anderson. He also recounted the
surveillance of Anderson from his residence to the barbershop and his brief
conversation with the driver of the white Lexus before "both [Anderson] and
Tora Evans enter[ed] into the barber shop and, moments later, both subjects
exited and return[ed] to their respective vehicles."
Based on this affidavit, a judge found probable cause for plaintiff's arrest.
Upon learning of the warrant, plaintiff appeared at the Ocean County
Prosecutor's Office and was arrested. He was charged with conspiracy to
possess with the intent to distribute a quantity of heroin in excess of five ounces,
N.J.S.A. 2C:35-5(b)(1); N.J.S.A. 2C:5-2, and bail was set at $150,000 without
a ten percent option.
1
Petracca testified at his deposition that a subpoena was subsequently issued
for that information, which confirmed that plaintiff was not associated with that
telephone number.
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5
Plaintiff remained incarcerated in the Ocean County jail for approximately
six weeks before he was able to post bail and secure his release. The charges
were voluntarily dismissed by the State in October 2016.
Plaintiff professed his innocence throughout these events. He never
denied his presence on River Avenue in Lakewood on March 18, 2015. To the
contrary, he acknowledged he stopped there to cash his paycheck at the check
cashing business located in the same building, which, as noted earlier, utilizes
the same entrance as the barbershop. At his deposition, plaintiff identified a
paycheck that reflects it had been processed at 1:01 p.m. on March 18, 2015.
Plaintiff denied having any interaction with Anderson.
A month after the State dismissed the criminal charges, plaintiff filed a
complaint against Petracca and Meier, alleging violations of his civil rights
under both the New Jersey Constitution and the New Jersey Civil Rights Act,
N.J.S.A. 10:6-1 to -2; he also pleaded the common law torts of false arrest and
imprisonment and malicious prosecution. Prior to filing an answer, Petracca
unsuccessfully moved to dismiss pursuant to Rule 4:6-2(e). Later, both he and
Meier moved for summary judgment. The judge granted those motions,
concluding that, when viewed in the light most favorable to plaintiff, the facts
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6
demonstrated defendants' entitlement to qualified immunity and required the
dismissal of the torts alleged.
In appealing, plaintiff argues the judge erred in finding defendants were
entitled to qualified immunity and that the factual record failed to support his
claims of malicious prosecution and false arrest and imprisonment. We reject
plaintiff's arguments and affirm. We turn first to plaintiff's civil rights claim
and the application of qualified immunity.
To establish a claim under our Civil Rights Act, a plaintiff must prove that
the defendant, acting under color of state law, deprived him of a constitutional
or statutory right. Wildoner v. Borough of Ramsey, 162 N.J. 375, 385 (2000).
The doctrine of qualified immunity, however, 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." Brown v. State, 230 N.J. 84, 97-98 (2017) (citing Morillo v.
Torres, 222 N.J. 104, 116 (2015)). Qualified immunity shields from liability all
public officials except those who are "plainly incompetent or those who
knowingly violate the law." Id. at 98 (citing Morillo, 222 N.J. at 118). A
defendant's entitlement to qualified immunity presents a question of law to be
A-3262-18T3
7
decided as early in the proceedings as possible, "preferably on a properly
supported motion for summary judgment." Bayer v. Twp. of Union, 414 N.J.
Super. 238, 263 (App. Div. 2010) (quoting Wildoner, 162 N.J. at 387).
Qualified immunity attaches when law enforcement officers are able to
prove they acted with probable cause or that "a reasonable police officer could
have believed in its existence." Kirk v. City of Newark, 109 N.J. 173, 184
(1988). Probable cause is "a well grounded suspicion that a crime has been or
is being committed," State v. Waltz, 61 N.J. 83, 87 (1972), and exists "where
the facts and circumstances within … [the officers'] knowledge and of which
they had reasonably trustworthy information [are] sufficient in themselves to
warrant a [person] of reasonable caution in the belief that an offense has been
or is being committed," State v. Moore, 181 N.J. 40, 46 (2004) (quoting
Schneider v. Simonini, 163 N.J. 336, 361 (2000)).
In determining whether probable cause exists, a court must look to the
totality of the circumstances and view those circumstances from the standpoint
of an objectively reasonable police officer. State v. Basil, 202 N.J. 570, 585-86
(2010) (citing Illinois v. Gates, 462 U.S. 213, 238 (1983); Maryland v. Pringle,
540 U.S. 366, 371 (2003); Moore, 181 N.J. at 46). When probable cause is an
issue, the trial judge should decide "whether probable cause existed, and if not,
A-3262-18T3
8
whether the [defendant] could reasonably have believed in its existence."
Schneider, 163 N.J. at 359.
In granting defendants' motions for summary judgment, the trial judge
found both Petracca and Meier were entitled to qualified immunity in their
individual capacities as governmental officials because probable cause existed
for the issuance of the warrant for plaintiff's arrest. The judge based his view
of the evidence about probable cause on the telephone interceptions, the
surveillance of Anderson, Meier's surveillance report, and Meier's identification
of plaintiff as the individual he observed on March 18, 2015. A reasonable
police officer could have believed in the existence of probable cause in these
circumstances even though it turned out that plaintiff's presence was merely
coincidental and, as shown, most unfortunate. To be sure, Petracca alleged in
his affidavit that he was "familiar" with plaintiff's voice when he later
acknowledged he had never heard plaintiff's voice. But that inaccurate assertion
could not have had much influence on the criminal judge's probable cause
determination that led to plaintiff's incarceration. In other words, had Petracca
never added that inaccurate comment, it seems highly likely that the criminal
judge still would have found probable cause because of Meier's surveillance and
his identification of plaintiff.
A-3262-18T3
9
As for Meier, the trial judge recognized that he was advised by a superior
officer that an imminent drug transaction was to take place at the barbershop.
While conducting surveillance, Meier observed both Anderson and another male
arrive at the location, engage in brief conversation and enter the building in
which the barbershop was located. Moments later, Meier observed both
Anderson and the unidentified male exit the building and return to their vehicles.
Meier later identified the unidentified male as plaintiff by examining
Department of Motor Vehicle photographs. From an objective perspective,
when combining the imminent drug transaction discussed on the intercepted
telephone call, the time and location to meet, and the presence of Anderson and
plaintiff at this same location at the very time Anderson and another had
discussed meeting, the trial judge properly determined that a reasonable police
officer could have had probable cause to believe a crime had been committed by
plaintiff.
For these reasons, we agree there was no genuine factual dispute about
defendants' entitlement to qualified immunity.
The judge also correctly determined that defendants were entitled to
summary judgment on the malicious prosecution claim. To sustain such a claim,
a plaintiff must prove: (1) "the criminal action was instituted by the defendant
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10
against the plaintiff," (2) "it was actuated by malice," (3) "there was an absence
of probable cause for the proceeding," and (4) "it was terminated favorably to
the plaintiff." Helmy v. City of Jersey City, 178 N.J. 183, 190 (2003). Such
claims are generally disfavored, but if a plaintiff can establish a prima facie case,
then "one who recklessly institutes criminal proceedings without any reasonable
basis should be [held] responsible for such irresponsible action." Epperson v.
Wal-Mart Stores, Inc., 373 N.J. Super. 522, 534 (App. Div. 2004) (quoting Lind
v. Schmid, 67 N.J. 255, 262 (1975)).
Though a plaintiff must establish each element, "[t]he essence of the cause
of action is lack of probable cause." Lind, 67 N.J. at 262. The plaintiff "must
establish a negative, namely, that probable cause did not exist." Id. at 263. The
trial judge correctly found that plaintiff presented sufficient evidence to meet
prongs one and four, as a criminal action was instituted against him 2 and was
2
The first prong is met by proof that the defendant took "'some active part in
instigating or encouraging the prosecution' or 'advis[ing] or assist[ing] another
person to begin the proceeding, [or by] ratif[ying] it when it is begun in
defendant's behalf, or [by] tak[ing] any active part in directing or aiding the
conduct of the case.'" Epperson, 373 N.J. Super. at 531 (quoting Prosser and
Keeton on Torts, § 119 at 872 (5th ed. 1984)). The record reflects that
information provided by both defendants was instrumental in causing the
criminal proceeding to be commenced against plaintiff.
A-3262-18T3
11
terminated in his favor.3 The judge, however, determined that plaintiff could
not demonstrate defendants' actions were motivated by malice or that there was
a lack of probable cause in seeking to obtain the warrant for his arrest.
We agree with the judge's analysis on both the second and third prongs.
The judge properly determined there was insufficient evidence to support an
allegation that defendants acted with malice. In this regard, we note that proof
of malice does not require proof that defendants acted malevolently or with
personal ill will toward the plaintiff. Epperson, 373 N.J. Super. at 532. Rather,
malice is "the intentional doing of a wrongful act without just cause or excuse."
Brunson v. Affinity Fed. Credit Union, 199 N.J. 381, 395 (2009) (quoting
McFadden v. Lane, 71 N.J.L. 624, 630 (E. & A. 1905)). That requirement may
be inferred "from the finding that the defendant had neither probable cause for
the criminal complaint nor a reasonable belief in probable cause." Jobes v.
Evangelista, 369 N.J. Super. 384, 398 (App. Div. 2004).
3
The fourth element, which requires proof that the criminal proceeding was
terminated in favor of the accused, focuses on whether the termination was
dispositive of the accused's innocence of the crime charged. Rubin v. Nowak,
248 N.J. Super. 80, 83 (App. Div. 1991). Criminal proceedings are terminated
in favor of an accused by "the formal abandonment of the proceedings by the
public prosecutor." Ibid. (quoting Restatement (Second) of Torts § 659 (Am.
Law Inst. 1977)). The fourth element was satisfied because the State voluntarily
dismissed the charges against plaintiff.
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In finding plaintiff could not demonstrate that defendants' actions were
motivated by malice, the judge relied on the fact that neither Petracca nor Meier
knew who plaintiff was prior to this investigation and prosecution , and their
connection of plaintiff to their narcotics investigation was purely mistaken .
Regardless of the generous view of the evidence plaintiff is permitted at the
summary judgment stage, we agree there was no evidence that would have
supported an inference that defendants acted with malevolence or with personal
ill will toward plaintiff. This remains so even though the evidence supports
plaintiff's allegation that Petracca inaccurately claimed familiarity with
plaintiff's voice in the affidavit that led to his arrest. The remainder of the
affidavit reveals that Petracca relied on the intercepted telephone calls, the
surveillance of Anderson, Meier's surveillance report, and Meier's identification
of plaintiff as the individual he observed at the barbershop location as his basis
for asserting probable cause. And though plaintiff alleged that Meier falsely
claimed to have seen him converse with Anderson at the location – and we
assume plaintiff is correct in this regard for purposes of reviewing the summary
judgment – Meier merely confirmed that, based on his surveillance observations,
plaintiff was the same individual he had observed and photographed outside the
barbershop. Thus, the trial court properly determined there was insufficient
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13
evidence to support plaintiff's allegation that defendants acted with malice. But
for these inaccuracies – no matter how characterized – the thrust of the factual
submission that led to the criminal judge's issuance of the arrest warrant was
based on other facts that the officers heard or observed. Viewing the record in
the manner prescribed by the Brill4 standard, we agree with the trial judge that
plaintiff failed to make a prima facie showing of actual malice.
The third element of a malicious prosecution claim requires that the
plaintiff demonstrate probable cause did not exist. Wildoner, 162 N.J. at 389;
Lind, 67 N.J. at 262-63. It is well established that probable 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 [are]
sufficient in themselves to warrant a [person] of reasonable caution in the belief
that an offense has been or is being committed." Moore, 181 N.J. at 46; see also
Waltz, 61 N.J. at 87 (describing probable cause as a "well grounded" suspicion
that a crime has been or is being committed). Again, for reasons already
discussed, we conclude that the trial judge properly found probable cause existed
at the time of the arrest even though hindsight reveals the officers were mistaken
in making the case for plaintiff's arrest.
4
Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
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We similarly reject plaintiff's arguments about his claim that he was
falsely arrested and imprisoned. Such a claim requires proof that probable cause
was lacking, see Mesgleski v. Oraboni, 330 N.J. Super. 10, 24 (App. Div. 2000),
and we have already determined that the officers possessed probable cause to
seek plaintiff's arrest, which led to his incarceration. In short, the law does not
provide a viable cause of action in these circumstances.
Affirmed.
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