MORGAN v. BOROUGH OF FANWOOD et al

Filing 75

OPINION. Signed by Judge Esther Salas on 7/7/2015. (ld, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ROBERT L. MORGAN,
Plaintiff,
Civil Action No. 11-7513 (ES)
v.
OPINION
BOROUGH OF FANWOOD, BOROUGH OF
FANWOOD POLICE DEPARTMENT,
SERGEANT THOMAS JEDIC OF THE
BOROUGH OF FANWOOD POLICE
DEPARTMENT, UNION COUNTY
SHERIFF’S DEPARTMENT, UNION COUNTY
SHERIFF’S OFFICER GLEN TRESCOTT, JOHN
DOES I to X (fictitious named individuals) and
ABC I to X (fictitious named entities and/or
corporations),
Defendants.
SALAS, DISTRICT JUDGE
This matter comes before the Court by way of the motion for summary judgment filed by
Defendants Sergeant Thomas Jedic, and Sheriff’s Officer Glen Trescott1 (collectively,
“Defendants”). (D.E. No. 69). For the reasons set forth below, the Court grants Defendants’
motion for summary judgment in part and reserves in part.

1

The Court notes that the parties have referred to Defendant Trescott as both “Glen” and “Glenn.” (See
D.E. Nos. 1, 69, 72). For purposes of this motion for summary judgment, the Court follows the listing on
the caption of the Complaint and refers to Defendant Trescott as “Glen.”

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I.

Factual Background and Procedural History2
This action arises out of a vehicle stop and subsequent search that occurred on January 2,

2010. While on patrol on the afternoon of January 2, 2010, Defendant Jedic observed Plaintiff
Robert Morgan’s Jeep traveling westbound on South Avenue in Fanwood, New Jersey. (D.E.
No. 69-4, Defendant Jedic’s Statement of Undisputed Material Facts (“Jedic SMF”) ¶¶ 10-11).
Plaintiff’s car was not in good condition and had been involved in an accident roughly one week
earlier. (Id. ¶¶ 4-5; D.E. No. 72-1, Plaintiff’s Responses to Defendant Jedic’s Statement of
Undisputed Material Facts (“Pl. Resp. to Jedic SMF”) ¶¶ 4-5). During that accident, Plaintiff’s
car sustained a strong rear end impact such that the driver’s side door of the Jeep could not fully
close. (Jedic SMF ¶ 5; Pl. Resp. to Jedic SMF ¶ 5). In an attempt to secure the door, Plaintiff
had tied the door with green rope across the top of his vehicle and through the front and back
windows. (Jedic SMF ¶ 5; Pl. Resp. to Jedic SMF ¶ 5). Additionally, the cover to the tail light
on the driver’s side was cracked as a result of the rear end collision. (Jedic SMF ¶¶ 6, 10; Pl.
Resp. to Jedic SMF ¶ 6).
Upon observing Plaintiff’s car, Defendant Jedic noticed that a large portion of the lens of
the driver’s side tail light was missing and that the driver’s side door did not appear to be secured
in a standard, closed position. (Jedic SMF ¶ 10). Defendant Jedic stopped the vehicle, and, as he
approached Plaintiff on the driver’s side, he saw that the door was tied closed with a green rope.
(Id. ¶¶ 12-13). Defendant Jedic ultimately did not issue Plaintiff a summons for driving an unsafe
vehicle because he was concerned that this charge would have significant ramifications. (Id.

2

The background facts are taken from the parties’ statements of undisputed material facts and the
accompanying exhibits. The Court must, of course, “disregard all factual and legal arguments, opinions
and any other portions of the 56.1 Statement which extend beyond statements of facts.” Globespanvirata,
Inc. v. Tex. Instrument, Inc., No. 03-2854, 2005 WL 3077915, at *2 (D.N.J. Nov. 15, 2005). Where, as
here, there is video footage related to Plaintiff’s claims, the Court “view[s] the facts in the light depicted
by the videotape.” See Scott v. Harris, 550 U.S. 372, 381 (2007).

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¶ 14). Rather, he only issued Plaintiff a summons for violating N.J.S.A. 39:3-66, which governs
the maintenance of car lamps. (Id.; D.E. No. 69-3, Ex. F, Vehicle Report at 1).
At the time of the vehicle stop, carpet freshening powder covered the entire carpet surface
of Plaintiff’s Jeep, and an air freshener was in the front console of the car. (Jedic SMF ¶ 7; Pl.
Resp. to Jedic SMF ¶ 7). According to Defendant Jedic, before he handed Plaintiff the summons
and during his conversations with Plaintiff, he detected what he believed to be the smell of
marijuana emanating from the vehicle. (Jedic SMF ¶ 15; see also D.E. No. 69-3, Ex. H, Transcript
of Testimony of Thomas J. Jedic (“Jedic Dep.”) at 63:10-63:13).
Plaintiff disputes that Defendant Jedic actually smelled marijuana during the vehicle stop
and claims that “[t]he audio from the video taken of the traffic stop by the camera mounted on
the dashboard of defendant’s patrol car unequivocally confirms that neither he nor his back-up
officer were ever able to smell any type of marijuana during the stop on that day.” (Pl. Resp. to
Jedic SMF ¶ 15). Plaintiff points to audio from the video, which captures Defendant Jedic’s backup officer informing Jedic about the overpowering smell of the air freshener. (Id.; D.E. No. 57,
Ex. B, Fanwood Police Dashcam Video (“DVD”) at 15:18:39-15:18:49 (“I don’t know. That
thing [i.e. the Renuzit air freshener] is so overpowering. It is so hard to say.”)). Plaintiff also
references Defendant Jedic’s later statement to his back-up officer acknowledging the
overpowering smell of the air freshener. (Pl. Resp. to Jedic SMF ¶ 15; DVD at 15:29:39-15:29:51
(“But like you said it’s that, that air, that Renuzit thing is overpowering.”)).
However, Defendant Jedic can be heard on the video repeatedly referencing a smell
emanating from Plaintiff’s car. (DVD at 15:17:04-15:17:11 (stating “he’s got one of those
Renuzit air fresheners in there, and I’m getting old, but I smell something”); DVD at 15:31:2615:31:35 (telling Plaintiff “I smell something in that vehicle . . . I smell something a little strong

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in there”); DVD at 15:32:58-15:33:12 (informing dispatcher, “Listen, I gave this guy a summons,
but I smell something in the car . . . see if a county drug dog may be available”)). Considering
the entirety of the video, Defendant Jedic’s single comment regarding the smell of the air
freshener does not discredit his Rule 56.1 assertion that he detected the smell of marijuana during
the vehicle stop. In fact, the video evidence of the traffic stop corroborates, rather than rebuts,
Defendant Jedic’s assertion.
Defendant Jedic ultimately asked Plaintiff if he would consent to a search of the car.
(Jedic SMF ¶ 17; Pl. Resp. to Jedic SMF ¶ 17). While Plaintiff initially consented to a search, he
withdrew his consent before the search began. (Jedic SMF ¶ 17; Pl. Resp. to Jedic SMF ¶ 17).
Defendant Jedic then informed Plaintiff that he was going to begin the process for obtaining a
search warrant and that he would be conducting an investigation. (Jedic SMF ¶ 18; Pl. Resp. to
Jedic SMF ¶ 18). Defendant Jedic told Plaintiff that, while he was not under arrest, he also was
not free to leave. (Jedic SMF ¶ 18; Pl. Resp. to Jedic SMF ¶ 18). Accordingly, Plaintiff remained
in his vehicle. (Jedic SMF ¶ 18; Pl. Resp. to Jedic SMF ¶ 18).
Prior to contacting a County Prosecutor and Superior Court Judge to obtain a search
warrant, Defendant Jedic sought to obtain a K-9 verification of the marijuana smell. (Jedic SMF
¶ 19). Defendant Jedic called Defendant Trescott, who arrived at the scene at approximately 3:52
p.m. with his dog, Onyx. (D.E. No. 69-4, Defendant Trescott’s Undisputed Material Facts
(“Trescott SMF”) ¶ 1). Defendant Trescott conducted a dog sniff of the exterior of Plaintiff’s
vehicle, which lasted roughly one minute and twelve seconds. (Trescott SMF ¶ 4; D.E. No. 721, Plaintiff’s Responses to Defendant Trescott’s Undisputed Material Facts (“Pl. Resp. to Trescott
SMF”) ¶ 4).
According to Defendant Trescott, the dog alerted to the driver’s side of the Jeep by

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demonstrating interest and ultimately scratching the driver’s side twice; the dog demonstrated
interest in the driver’s side of the car three times prior to scratching. (Trescott SMF ¶¶ 5-6; see
also D.E. No. 72-5, Ex. B, Transcript of Testimony of Officer Glen Trescott (“Trescott Dep.”) at
39:23-39:25). Plaintiff disputes that the dog sniff transpired this way and asserts that the video
of the traffic stop does not show Onyx scratching Plaintiff’s vehicle. (Pl. Resp. to Trescott SMF
¶ 5). Plaintiff further states that the video does not reveal Onyx demonstrating interest in any
portion of the vehicle and instead the actual images in the video show Defendant Trescott
“forcibly pulling Onyx back to the vehicle and banging the side of the Plaintiff’s vehicle with his
hand, as part of a desperate effort to get the dog interested.” (Id. ¶ 6). Plaintiff has not proffered
an expert report as authority for how to interpret dog sniffs, but rather provides his own lay
interpretation of the dog’s movements.
The video evidence shows that, consistent with Defendant Trescott’s 56.1 Statement,
Onyx demonstrated interest in the driver’s side of the Jeep by wagging his tail and returning to
the area three times prior to scratching. (DVD at 15:57:24-15:57:39; see also Trescott Dep. at
15:16-15:20 (explaining that, prior to indicating, “generally, the dog gets excited, the tail starts
wagging,” and the “dog will work the scent cone until it can pinpoint where the narcotics are, and
then it will give an indication for the presence of narcotics”)). Based on the Court’s review of the
video, the Court does not discern any manipulation of the dog sniff on Defendant Trescott’s part.
Unfortunately, certain critical moments of the dog sniff are partially obscured by
Defendant Jedic, who was standing in front of the camera. However, the dog can be seen twice
moving his left front paw by the driver’s side of the vehicle, and two scratches are audible during
this timeframe. (DVD at 15:57:39-15:57:41). Furthermore, Defendant Trescott testified during
his deposition that Onyx gave a positive indication by “scratch[ing] on the lower seam of the

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driver’s side door.” (Trescott Dep. at 39:24-39:25). While Plaintiff takes issue with the video
evidence, the partially obscured view of the dog’s indication does not give rise to the inference
that an indication did not in fact occur, nor does it negate the audible scratching sounds that can
be heard on the video.
The video shows that almost immediately after Onyx’s indication, Defendant Trescott told
Defendant Jedic that the dog gave a positive indication of the presence of a controlled dangerous
substance. (Trescott SMF ¶ 9; DVD at 15:57:41-15:57:48). Defendant Trescott pointed out to
Defendant Jedic how the dog had moved back and forth and remarked, “[i]t’s not the strongest
odor, but it’s there.” (DVD at 15:58:13-15:58:21). Defendants subsequently applied for a search
warrant before the Honorable Robert Mega, J.S.C., sitting in Union County. (Trescott SMF ¶ 10;
Pl. Resp. to Trescott SMF ¶ 10).
In testifying in support of the search warrant application, Defendant Jedic explained that
he detected what he believed to be the odor of raw marijuana coming from Plaintiff’s vehicle.
(D.E. No. 69-3, Ex. F (“Application for Search Warrant”) at 3). Defendant Jedic explained to
Judge Mega that the odor “smelled a bit more vegative [sic] to me than it did burnt. And again,
it was strong enough to where it in my opinion, overpowered even the air freshener that was in
the car.” (Id. at 4). Thereafter, Defendant Trescott testified in support of the search warrant
application and explained that, when he ran the dog around the car and “came from the front
towards the driver’s side, the dog showed some interest.” (Id. at 5). Defendant Trescott testified
that he “presented the bottom door seam, driver’s door, and the dog gave me a positive indication
by scratching.” (Id.). Defendant Trescott further explained that this is the way his dog was trained
to indicate when smelling narcotics and that he had witnessed this positive indication from Onyx
hundreds of times. (Id. at 5-6). Ultimately, Judge Mega determined that probable cause existed

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to have Plaintiff’s vehicle towed, impounded, and searched, and he agreed to issue a search
warrant. (Id. at 7).
After Defendants obtained a warrant, Plaintiff’s vehicle was towed to a nearby garage and
a search was conducted. (Trescott SMF ¶ 12; Pl. Resp. to Trescott SMF ¶ 12). The search of
Plaintiff’s car did not uncover any contraband or marijuana, and Plaintiff’s car was ultimately
released to him. (Trescott SMF 13; Pl. Resp. to Trescott SMF ¶ 13).
On December 23, 2011, Plaintiff filed a Complaint, asserting 42 U.S.C. § 1983 claims
against Sergeant Thomas Jedic, Sheriff’s Officer Glen Trescott, Borough of Fanwood, Borough
of Fanwood Police Department, and Union County Sheriff’s Department. (D.E. No. 1, Complaint
(“Compl.”)).3 Plaintiff alleges that Defendant Jedic initiated an unlawful vehicle stop in violation
of the Fourth Amendment, the procedural due process clause of the Fourteenth Amendment, and
the equal protection clause of the Fourteenth Amendment. (Id. ¶¶ 35, 37). Plaintiff also asserts
that the traffic stop was “motivated solely and exclusively by racial discrimination in violation of
the Law Against Discrimination, codified at N.J.S.A. 10:5-1 et seq. as the Plaintiff . . . is an
African American.” (Id. ¶ 36) (emphasis omitted).
Additionally, Plaintiff alleges that Defendants Jedic and Trescott fabricated testimony
during the probable cause hearing before Judge Mega and that the search warrant was, therefore,
improperly procured. (Id. ¶¶ 38, 40). Plaintiff alleges that Defendants thereby violated the Fourth
Amendment, the procedural due process clause of the Fourteenth Amendment, and the equal
protection clause of the Fourteenth Amendment. (Id. ¶ 38). Plaintiff further alleges that the
officers’ “willful, wanton and malicious acts in presenting the Judge with fabricated information

3

By letter order dated August 6, 2014, the Court dismissed Borough of Fanwood, Fanwood Police
Department, and Union County Sherriff’s Department as Defendants. (D.E. No. 68). Thus, the Court only
details the claims against the remaining Defendants, Sergeant Thomas Jedic and Sheriff’s Officer Glen
Trescott.

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and false testimony . . . amounted to a conspiracy . . . in violation of 42 U.S.C. 1985(3).” (Id.)
(emphasis omitted).
Plaintiff also asserts various state law claims against the officers. Plaintiff alleges that
“all of the unlawful and unconstitutional acts committed” by Defendants Jedic and Trescott “serve
as the backdrop and foundation for the assertion of his common law claims for false or unlawful
imprisonment and malicious abuse of process, as well as for the assertion of his state statutory
claims that the defendants . . . violated multiple provisions of the New Jersey Civil Rights Act of
2004 codified at N.J.S.A. 10:6-2.” (Id. ¶ 39) (emphasis omitted). Plaintiff further alleges that
Defendants violated Article 1, Paragraphs 1, 7, and 21 of the New Jersey Constitution; N.J.S.A.
10:6-2; and N.J.S.A. 10:5-1. (Id. ¶ 46) (emphasis omitted).
Presently before the Court is the motion for summary judgment filed by Defendants Jedic
and Trescott. (D.E. No. 69). The motion is fully briefed and ripe for adjudication.
II.

Summary Judgment Standard
Pursuant to Federal Rule of Civil Procedure 56(a), a “court shall grant summary judgment

if the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In determining whether a genuine
issue of material fact exists, a court must consider all facts and their reasonable inferences in the
light most favorable to the nonmoving party. See Pa. Coal Ass’n v. Babbitt, 63 F.3d 231, 236 (3d
Cir. 1995). However, where, as here, there is video footage related to the claims, the Court will
not draw inferences that are inconsistent with the video evidence. See Scott, 550 U.S. at 380-81.
Rather, the Court “view[s] the facts in the light depicted by the videotape.” See id. at 381.
On a summary judgment motion, the moving party bears the initial burden of showing
that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23

8

(1986). The burden then shifts to the nonmoving party to present evidence that a genuine issue
of material fact compels a trial. Id. at 324. In opposing summary judgment, the nonmoving party
must offer specific facts that establish a genuine issue of material fact, not just “some
metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586-87 (1986). The nonmoving party cannot rest upon the mere allegations
or denials in its pleadings. See Celotex, 477 U.S. at 324. Furthermore, the nonmoving party
cannot rely on speculation and conclusory allegations to defeat summary judgment. Ridgewood
Bd. of Educ. v. N.E. ex rel. M.E., 172 F.3d 238, 252 (3d Cir. 1999).
III.

Discussion
A. The Vehicle Stop
Plaintiff contends that Defendant Jedic lacked probable cause to initiate the motor vehicle

stop and that the stop was in violation of the Fourth Amendment and the equal protection and
procedural due process clauses of the Fourteenth Amendment.4 (Compl. ¶¶ 35, 37; see also Pl.
Opp. Br. at 26-27). In seeking summary judgment, Defendant Jedic argues that there was

4

Plaintiff’s procedural due process claim is subsumed by his Fourth Amendment claim. The Supreme
Court has explained that “[w]here a particular Amendment provides an explicit textual source of
constitutional protection against a particular sort of government behavior, that Amendment, not the more
generalized notion of ‘substantive due process,’ must be the guide for analyzing these claims.” Albright
v. Oliver, 510 U.S. 266, 273 (1994) (plurality opinion) (internal quotation marks omitted); see also Cnty.
of Sacramento v. Lewis, 523 U.S. 833, 843 (1998) (“Substantive due process analysis is therefore
inappropriate . . . if [plaintiff’s] claim is ‘covered by’ the Fourth Amendment.”). Although the Supreme
Court developed this rule in the substantive due process context, courts have dismissed procedural due
process claims where, as here, “the graveman [sic] of [the plaintiff’s] lawsuit is so clearly premised on a
. . . Fourth Amendment violation.” See Wilson v. City of Cherry Hill, No. 10-3866, 2011 WL 3651274, at
*8 n.12 (D.N.J. Aug. 18, 2011) (internal quotation marks omitted); Regan v. Upper Darby Twp., No. 061686, 2009 WL 650377, at * 15 n.19 (E.D. Pa. Mar. 11, 2009) (dismissing procedural due process claim
because “Plaintiff clearly base[d] her claim on alleged Fourth Amendment violations and arrest without
probable cause”); see also Bostrom v. N.J. Div. of Youth & Family Servs., 969 F. Supp. 2d 393, 415 (D.N.J.
2013) (“Plaintiffs have not alleged that they were deprived [of] a liberty or property interest which is not
already addressed by Plaintiffs’ . . . Fourth Amendment claims. If the court were to find that the Plaintiffs
have established a deprivation of liberty on these facts, then all unreasonable searches would constitute
procedural due process claims. This would be impractical and duplicative.”). Accordingly, the Court
dismisses Plaintiff’s procedural due process claim with prejudice.

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probable cause to initiate the motor vehicle stop and that he is also entitled to qualified immunity.
At the outset, the Court notes that reasonable suspicion, not probable cause, is the relevant
standard for evaluating whether or not the vehicle stop at issue violated Plaintiff’s Fourth
Amendment rights. The Fourth Amendment protects individuals “against unreasonable searches
and seizures.” U.S. Const. amend. IV. A traffic stop constitutes a “seizure” within the meaning
of the Fourth Amendment, “even though the purpose of the stop is limited and the resulting
detention quite brief.” Delaware v. Prouse, 440 U.S. 648, 653 (1979). “[A] traffic stop will be
deemed a reasonable ‘seizure’ when an objective review of the facts shows that an officer
possessed specific, articulable facts that an individual was violating a traffic law at the time of the
stop.” United States v. Delfin-Colina, 464 F.3d 392, 398 (3d Cir. 2006). “Reasonable, articulable
suspicion is a ‘less demanding standard than probable cause and requires a showing considerably
less than preponderance of the evidence.’” Id. at 396 (quoting Illinois v. Wardlow, 528 U.S. 119,
123 (2000)); see also United States v. Mosley, 454 F.3d 249, 252 (3d Cir. 2006) (“Courts give
considerable deference to police officers’ determinations of reasonable suspicion . . . .”). In
determining whether a traffic stop was based on reasonable suspicion, courts “consider the totality
of the circumstances—the whole picture.” United States v. Robertson, 305 F.3d 164, 167 (3d Cir.
2002) (internal quotation marks and citations omitted).
Plaintiff concedes that his door was not completely secured and that his rear tail lamp was
missing part of its cover. (Pl. Resp. to Jedic SMF ¶¶ 5-6). Furthermore, it is undisputed that
Defendant Jedic observed Plaintiff driving with a door that was not fully secured and noticed that
a large portion of the translucent, red cover to his rear tail lamp was missing. (Jedic SMF ¶ 10;
Pl. Resp. to Jedic SMF ¶ 10). Nonetheless, Plaintiff maintains that he did not have a defective
taillight within the meaning of N.J.S.A. 39:3-66, and he argues that the vehicle stop was unlawful

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as a result. (Id. ¶ 6).
Plaintiff’s position rests on an erroneous interpretation of N.J.S.A. 39:3-66. This statute,
which is entitled “Maintenance of Lamps, Reflectors, etc.” provides that “[a]ll lamps, reflectors
and other illuminating devices required by this article shall be kept clean and in good working
order and, as far as practicable, shall be mounted in such a manner as to reduce the likelihood of
their being obscured by mud or dust thrown up by the wheels.” N.J.S.A. 39:3-66. Plaintiff
narrowly interprets this statute and asserts that the statutory term “lamp” does not encompass the
cover of a motor vehicle’s lamp. Specifically, Plaintiff argues that the statute “never once
mentions the ‘cover’ of a motor vehicle’s lamp, and doesn’t make the ‘covers’ to a vehicle’s
‘. . . . lamps, reflectors [or] illuminating devices . . . .’ expressly subject to its requirements.” (Pl.
Opp. Br. at 30) (emphasis omitted). Plaintiff contends that “[i]f the Legislature had intended the
covers to a vehicle’s ‘. . . . lamps, reflectors and illuminating devices . . . .’ to be subject to the
statute’s requirements it could have easily added the words, ‘and their covers’ to the text of the
Act, but the Legislature did not do that.” (Id.) (emphasis omitted).
However, Plaintiff has cited no case law in support of his restrictive interpretation of the
statute, and the Court does not read N.J.S.A. 39:3-66 so narrowly. As a preliminary matter, the
ordinary meaning of the term lamp is not limited to the bulb itself. Rather, the term lamp refers
to the entire apparatus, including the cover of the bulb. Furthermore, the fact that the statute
requires that lamps be mounted in such a manner as to reduce the likelihood of being obscured
confirms that the statute is not exclusively concerned with the condition of the bulb itself, but
rather is also concerned with the condition of the lamp’s cover. Finally, the phrase “other
illuminating devices” could conceivably encompass the lamp cover. The Court concludes that
Plaintiff’s taillight was defective within the meaning of N.J.S.A. 39:3-66 because it was missing

11

a large portion of its cover and therefore was not “in good working order.” Given Defendant
Jedic’s direct observation of this traffic violation, he had reasonable suspicion to warrant initiating
the traffic stop. See United States v. Bonner, 363 F.3d 213, 216 (3d Cir. 2004) (“A police officer
who observes a violation of state traffic laws may lawfully stop the car committing the violation.”
(citing Pennsylvania v. Mimms, 434 U.S. 106, 109 (1977))).
Notably, Plaintiff does not address whether the condition of his driver’s door was in
violation of N.J.S.A. 39:3-44, and he fails to respond to Defendant Jedic’s contention that Plaintiff
could have been cited for violating this provision as well. N.J.S.A. 39:3-44 provides that:
No person shall hereafter drive, move, park or be in custody of nor shall any owner
or lessee hereafter cause or knowingly permit to be driven, moved or parked on
any highway any vehicle, motor vehicle or motor-drawn vehicle or combination
of vehicles which is in such unsafe condition as to endanger or be likely to
endanger any person or property, or which does not contain those parts or is not
at all times, equipped with such equipment in proper condition and adjustment as
required in this article, or which is equipped in any manner in violation of this
article. No person shall do any act forbidden or fail to perform any act required
under this article.
N.J.S.A. 39:3-44 (emphasis added). Plaintiff was clearly operating an unsafe vehicle, in violation
of N.J.S.A. 39:3-44, given that his driver’s door was not fully secured. Defendant Jedic’s direct
observation that Plaintiff was operating an unsafe vehicle provided him with yet another basis to
initiate the traffic stop. See Bonner, 363 F.3d at 216.
The Court concludes that the vehicle stop was a reasonable seizure that did not violate
Plaintiff’s Fourth Amendment rights. Accordingly, the Court grants summary judgment to
Defendant Jedic with respect to Plaintiff’s Fourth Amendment unlawful stop claim and dismisses
this claim with prejudice.5

5

Because the Court concludes that the vehicle stop did not violate Plaintiff’s Fourth Amendment rights,
the Court does not analyze whether Defendant Jedic is entitled to qualified immunity. See Gannaway v.
Karetas, 438 F. App’x 61, 67 (3d Cir. 2011) (“As there was no constitutional violation, we need not engage
in an analysis of qualified immunity.”).

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B. The Search Warrant
Plaintiff alleges that Defendants Jedic and Trescott improperly procured a search warrant
by perjuring themselves during the probable cause hearing before Judge Mega. (Compl. ¶¶ 38,
40). Plaintiff asserts Fourth Amendment, Fourteenth Amendment, and § 1985(3) conspiracy
claims arising from the challenged search warrant. (Id. ¶ 38). In response, Defendants assert that
they are entitled to qualified immunity.6
The doctrine of qualified immunity protects “government officials from civil damages
liability unless the official violated a statutory or constitutional right that was clearly established
at the time of the challenged conduct.” Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012).
Qualified immunity attaches if an official can demonstrate that his or her conduct was “objectively
reasonable.” Davis v. Malitzki, 451 F. App’x 228, 232 (3d Cir. 2011) (citing Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982)). “There are two prongs to the objective reasonableness inquiry: first,
whether the plaintiff’s constitutional or statutory rights were in fact violated; second, whether it
would have been clear to a reasonable officer that the conduct was unlawful.” Id. (citing Saucier
v. Katz, 533 U.S. 194, 200-01 (2001)). If the official can show that at least one prong of the
objective reasonableness inquiry is not satisfied, then he or she is entitled to qualified immunity.
Id. “If the plaintiff fails to make out a constitutional violation, the qualified immunity inquiry is

6

Defendant Jedic also argues that Plaintiff should not even be permitted to maintain a claim against him
with respect to his testimony before Judge Mega because Plaintiff’s interrogatory responses “made no
reference whatsoever to maintaining any claim against Sergent Jedic, other than as related to his initial
stop of his motor vehicle and his issuance of a summons for violation of N.J.S.A. 39:3-66.” (D.E. No. 694, Joint Brief in Support of F.R.C.P. 56 Motions for Summary Judgment of Defendants, Sergent Thomas
Jedic and Sheriff’s Officer Glenn Trescott (“Def. Mov. Br.”) at 35). However, Defendant Jedic has cited
no legal authority for deeming a claim to be abandoned based on a plaintiff’s mere failure to provide a
response to an interrogatory question. The Court declines Defendant Jedic’s invitation to take such a
punitive measure.

13

at an end; the officer is entitled to immunity.” Bennett v. Murphy, 274 F.3d 133, 136 (3d Cir.
2002).
The parties agree that the test set forth in Franks v. Delaware, 438 U.S. 154 (1978), is the
relevant test for assessing Plaintiff’s challenge to the validity of the search warrant. (Def. Mov.
Br. at 37; Pl. Opp. Br. at 35); see also Sherwood v. Mulvihill, 113 F.3d 396, 399 (3d Cir. 1997)
(“A section 1983 plaintiff who challenges the validity of a search warrant by asserting that law
enforcement agents submitted a false affidavit to the issuing judicial officer must satisfy the twopart test developed by the Supreme Court in Franks v. Delaware . . . .”). “Under Franks and its
progeny, the plaintiff must prove, by a preponderance of the evidence, (1) that the affiant
knowingly and deliberately, or with a reckless disregard for the truth, made false statements or
omissions that create a falsehood in applying for a warrant; and (2) that such statements or
omissions are material, or necessary, to the finding of probable cause.” Sherwood, 113 F.3d at
399.
Plaintiff has not submitted any evidence that Defendants “knowingly and deliberately, or
with a reckless disregard for the truth, made false statements or omissions that create a falsehood
in applying for a warrant.” See id. (emphasis added). In fact, Plaintiff has not submitted any
evidence of false statements whatsoever. As to Defendant Jedic, Plaintiff argues that Defendant
Jedic perjured himself by telling Judge Mega that he detected the odor of marijuana emanating
from Plaintiff’s car and by testifying that this odor overpowered even the air freshener in the
vehicle. (Pl. Opp. Br. at 39-40). Plaintiff points to the interchange between Defendant Jedic and
his back-up officer as a basis for attacking Jedic’s testimony. (Id. at 37-39). However, the entirety
of the video evidence, along with Defendant Jedic’s deposition testimony, indicates that Jedic
smelled marijuana emanating from Plaintiff’s vehicle. (See DVD at 15:17:04-15:17:11, 15:31:26-

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15:31:35, 15:32:58-15:33:12; Jedic Dep. at 63:10-63:13). Defendant Jedic’s lone remark about
the strong smell of the air freshener does not give rise to the inference that Jedic presented
fabricated testimony in support of the search warrant application.
As to Defendant Trescott, Plaintiff argues that Trescott provided false testimony to Judge
Mega when he stated that Onyx gave a positive indication by scratching. (Pl. Opp. Br. at 42). As
noted above, the video of the dog sniff, along with Defendant Trescott’s deposition testimony,
confirms that Onyx gave a positive indication by scratching the driver’s side twice. Plaintiff has
not presented any evidence to suggest that Defendant Trescott provided perjured testimony
regarding the dog sniff.
Plaintiff also argues that Defendant Trescott withheld information that was material to
Judge Mega’s finding of probable cause. Specifically, Plaintiff points out that Defendant Trescott
remarked to Defendant Jedic following the dog sniff that the odor was not the strongest. (Id.).
Plaintiff has failed to demonstrate that the omission of Defendant Trescott’s opinion regarding
the strength of the odor was material to Judge Mega’s finding of probable cause. As Defendant
Trescott testified during his deposition, a dog gives a positive indication of the presence of
narcotics by scratching. (Trescott Dep. at 18:8-19:15). Nothing in the record indicates that the
strength of the odor itself has any bearing on whether or not a dog has given a positive indication.
Furthermore, Third Circuit precedent confirms that a dog’s positive alert is sufficient to establish
the probable cause necessary for a search, thus making Defendant Trescott’s opinion as to the
strength of the odor immaterial. See United States v. Pierce, 622 F.3d 209, 213 (3d Cir. 2010)
(“[A] dog’s positive alert while sniffing the exterior of the car provides an officer with the
probable cause necessary to search the car without a warrant.”); Karnes v. Skrutski, 62 F.3d 485,

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498 (3d Cir. 1995) (“[I]t is clear that the drug dog’s alert would present probable cause for a
search.”).
In sum, Plaintiff has not presented evidence that Defendants made any material
misrepresentations or omissions in support of the warrant application. Because there are no
genuine issues of material fact and Plaintiff has failed to satisfy the Franks v. Delaware test, any
claim premised on the insufficiency or invalidity of the search warrant fails. The Court thus
concludes that Defendants Jedic and Trescott are entitled to qualified immunity with respect to
Plaintiff’s Fourth Amendment, Fourteenth Amendment, and § 1985(3) conspiracy claims arising
from the challenged search warrant. See Bennett, 274 F.3d at 136 (“If the plaintiff fails to make
out a constitutional violation, the qualified immunity inquiry is at an end; the officer is entitled to
immunity.”). Accordingly, the Court grants summary judgment to Defendants with respect to the
Fourth Amendment, Fourteenth Amendment, and § 1985(3) claims arising from the challenged
warrant, and the Court dismisses these claims with prejudice.
IV.

Remaining Claims
Although Defendants seek to dismiss the entire Complaint with prejudice, they have failed

to address several of Plaintiff’s claims in their submissions.

As to Plaintiff’s Fourteenth

Amendment equal protection clause claim challenging Defendant Jedic’s vehicle stop, Defendant
Jedic did not move for summary judgment on this claim with specificity. The Court’s resolution
of Plaintiff’s Fourth Amendment claim does not dispose of Plaintiff’s Fourteenth Amendment
equal protection clause claim. As the Third Circuit explained in Carrasca v. Pomeroy, “[t]he fact
that there was no Fourth Amendment violation does not mean that one was not discriminatorily
selected for enforcement of a law,” since “equal protection claims under the Fourteenth
Amendment require a wholly separate analysis from . . . claims under the Fourth Amendment.”

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313 F.3d 828, 836 (3d Cir. 2002); see also Mitchell v. Twp. of Willingboro Municipality Gov’t,
No. 11-1664, 2011 WL 3203677, at *5 (D.N.J. July 26, 2011) (“In order to bring an equal
protection claim based on racial profiling under 42 U.S.C. 1983, Plaintiff must show that the
officer’s conduct (1) had a discriminatory effect and (2) was motivated by a discriminatory
purpose.” (citing Bradley v. United States, 299 F.3d 197, 205-06 (3d Cir. 2002))). Accordingly,
the Court orders the parties to submit supplemental briefing addressing why Defendant Jedic is
or is not entitled to summary judgment dismissing the remaining equal protection claim.
Additionally, as detailed above, Plaintiff has asserted numerous state law claims against
Defendants. While Defendant Jedic moved for summary judgment with respect to Plaintiff’s
malicious abuse of process claim, both he and Defendant Trescott failed to discuss Plaintiff’s
other state law claims. The Court declines to address Plaintiff’s state law claims at this time. In
the event the Court grants summary judgment dismissing Plaintiff’s remaining Fourteenth
Amendment claim, there is a significant possibility that the Court will decline to exercise
supplemental jurisdiction over Plaintiff’s state law claims. Accordingly, the Court will address
Plaintiff’s state law claims, if necessary, following the parties’ supplemental briefing.
V.

Conclusion
For the reasons set forth above, the Court grants Defendants’ motion for summary

judgment in part. The Court dismisses Plaintiff’s Fourth Amendment and Fourteenth Amendment
procedural due process claims arising from the challenged vehicle stop. Additionally, the Court
dismisses Plaintiff’s Fourth Amendment, Fourteenth Amendment, and § 1985(3) conspiracy
claims arising from the challenged search warrant.
The parties are hereby ordered to submit supplemental briefing addressing Plaintiff’s
remaining Fourteenth Amendment equal protection clause claim against Defendant Jedic.

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Defendant Jedic shall hereby submit a supplemental brief of no more than six pages within two
weeks of the date that this Opinion is entered on the docket. Plaintiff shall hereby submit a
response of no more than six pages within two weeks of the date that Defendant Jedic files his
supplemental brief.

s/Esther Salas
Esther Salas, U.S.D.J.

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