                                NOT FOR PUBLICATION WITHOUT THE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.




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                                       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.




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                                        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.
                                                                            A-3262-18T3
                                         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




                                                                        A-3262-18T3
                                       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


                                                                          A-3262-18T3
                                       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.
                                                                            A-3262-18T3
                                       12
      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


                                                                          A-3262-18T3
                                       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).
                                                                          A-3262-18T3
                                        14
      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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                                       15
