                        NOT FOR PUBLICATION WITHOUT THE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
