SUMMERVILLE et al v. NEW JERSEY STATE POLICE et al

Filing 129

OPINION. Signed by Judge Kevin McNulty on 8/29/2019. (sm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

STANLEY SUMMERVILLE,
FOMBAH SIRLEAF,

No. 14-cv-7653 (KM)(MAH)

Plaintiffs,

OPINION

V.

DETECTIVE SERGEANT M. GREGORY,
et al.,
Defendants.
KEVIN MCNULTY, U.S.D.J.:
This constitutional tort action under 42 U.S.C.

§

1983 arises from an

allegedly unconstitutional detention of the plaintiffs, Stanley Summen’ille and
Fombah Sirleaf, by several New Jersey State Troopers. Plaintiffs allege that the
officers confronted and detained them without reasonable suspicion, in
violation of their Fourth Amendment rights, and on the basis of racial profiling.
As a result of apt concessions by the plaintiffs, I focus here on the claims
against Detective Michael Gregory, the officer in command of the operation,
and to some extent Det. Sgt. P. Ciano.’

At oral argument, counsel for the plaintiffs conceded that they lacked an
evidentiary basis to pursue their claims against those subordinate officers, with the
exception of P. Ciano. (Transcript of oral argument, Aug. 22, 2019 (“Tr.”) 47:5—8,
47:20—48:12) The claims against J. Gauthier, J. Harrison, ED. Bobal, T. Kelshaw, R.
Joaquin, and P. Chariamonte are therefore dismissed. The liability of Det. Sgt. Ciano
was argued primarily in connection with qualified immunity, so I discuss it there. See
Section III.C, infra.
Also nanied as a defendant, on supervisory or vicarious liability grounds, was
the then-Superintendent of the New Jersey State Police, Col. Joseph R. Fuentes (DE
33). On March 11,2016,1 issued an Opinion and Order denying Col. Fuentes’s motion
to dismiss because plaintiffs had adequately stated a claim against him pursuant to
Mo,tell v. New York City Dept. of Social Sews., 436 U.S. 658, 694, 98 S. Ct. 2018
(1978). (DE 51). Plaintiffs have expressly abandoned their claim for supervisory
1

The police have a difficult job. When they make on-the-spot decisions
they do not, like a judge reviewing the matter, have the benefit of leisure, legal
research, and hindsight. The reasonable-suspicion standard and qualified
immunity thus give the police a certain amount of leeway to investigate facts,
falling short of probable cause to arrest, that may (as here) turn out to be
wholly innocuous. Anyone who has ever surfed the internet can understand
how a simple search for information, initially intended to be brief, can stretch
into 30, 60, or 90 minutes. Still, I must conclude that the detention here, even
assuming it was based on reasonable suspicion (which remains a contested
factual issue), was too long and severe an intrusion on the privacy and dignity
of these two innocent persons.
Now before the Court are the defendants’ motion for summary judgment
(DE 114) and plaintiffs’ cross motion for summary judgment (DE 117). For the
reasons described below, I will grant in part and deny in part both sides’
motions.2
I.

BACKGROUND
A. Procedural History
Plaintiffs filed their initial complaint on December 9, 2014, naming the

New Jersey State Police, New Jersey State Trooper John Does 1-10, Universal

liability against Col. Fuentes, however. (See P1. Br. at 9). I will therefore dismiss Col.
Fuentes from the case.
Record items will be abbreviated as follows. Citations to page numbers refer to
the page numbers assigned through the Electronic Court Filing system, unless
otherwise indicated.
DE
Docket Entry in this case
2

“Comp.”
“Video”

October 8, 2014 Surveillance Video of Jersey Gardens Mall
Parking Lot (DE 117-5 at 19)

=

“Def. Br.”
“P1. Br.”

Third Amended Complaint (DE 33)

=

=

=

Defendants’ Brief in Support of their Motion for Summary
Judgment (DE 114-1)
Plaintiffs’ Brief in Opposition to Defendants’ Summary
Judgment Motion and in Support of Plaintiffs’ Cross-Motion
for Summary Judgment (DE 117)
2

Protection Service, and JG Elizabeth LLC. (DE 1). On February 18, 2015,
plaintiffs filed their first amended complaint, adding the (now former)
Superintendent of the New Jersey State Police, Col. Joseph R. Fuentes, and
removing as defendants the New Jersey State Police, Universal Protection
Service, and JO Elizabeth LLC. (DE 11). After exchange of certain discovery,
plaintiffs filed their second amended complaint on May 14, 2015, which
replaced the John Doe State Troopers with Lieutenant J. Harrison and
Detectives M. Gregory, J. Gauthier, P. Ciano, E. Bobal, T. Kelshaw, R. Joaquin,
and P. Chariamonte. (DE 17).
On August 10, 2015, plaintiffs filed their third amended complaint (for
purposes of this Opinion, the “Complaint,” cited as “Comp.
current Complaint asserts two
and false arrest (Comp.

¶

§

¶

_“).

(DE 33). The

1983 causes of action: (1) false imprisonment

84—97); and (2) racial profiling and selective

enforcement. (Id. ¶1130—135). Both are asserted against the individual
defendant police officers only.
On January 4, 2019, all remaining defendants filed a motion for
summary judgment. (DE 114). On March 1, 2019, plaintiffs filed an opposition
and cross motion for summary judgment. (DE 117).
B. Facts

Defendant Michael Gregory is a detective sergeant of the New Jersey
State Police Organized Crime and Gangs Unit. Gregory oversaw the
investigation of Richard Parker (“Parker”), a black male (race is relevant to the
allegations), who was suspected of trafficking heroin. (DE 117-2

¶

¶

6; DE 117-5 at 32, 37). Det. Gregory is a white male. (DE 117-2

2

¶

6; DE 120-2

¶

8; DE 120-

8). Det. Gregory supervised the October 8, 2014 surveillance operation of

Parker and made all the pertinent decisions, including the decision to detain
the plaintiffs. (DE 117-2

¶

12; DE 120-2

¶

12; DE 114-2

¶

31; DE 117-1 131).

The following officers assisted Det. Gregory in his surveillance of Parker:

3

J. Harrison, P. Ciano, E. Bobal, T. Keishaw, J. Gauthier, R. Joaquin, and P.
Chariamonte.3 (DE 117-2

¶

7; DE 120-2

¶

7; DE 117-5 at 32).

In September 2014, Det. Gregory received information from a confidential
source (“CS”) that Parker was a black male in his mid-thirties who lived in
Newark and was engaged in the distribution of heroin in New Jersey. (DE 1175 at 3—9; DE 117-2

¶

5; DE 120-2

¶

5; DE 117-5 at 37). The CS also told Det.

Gregory that Parker had served several years in state prison for a homicide,
was on parole, frequently drove a white Lexus with a specific registration
number during narcotics transactions, and often carried a handgun during
those transactions. (DE 117-5 at 3, 4).
To corroborate the CS’s information, Det. Gregory searched Parker’s
name and registration number in law enforcement databases. (DE 117-5 at 4).
These corroborated that the Lexus was registered in Parker’s name, that he
lived in Newark, that he was in his mid-thirties, and that he was on parole
from a murder sentence. (Id.). Det. Gregory showed the CS a photograph of
Parker from the New Jersey Department of Motor Vehicles, which the CS
identified as the person the CS had been referring to. (Id.).
Subsequently, in October 2014, Det. Gregory met with the CS to monitor
a telephone conversation between the CS and Parker. During the call, the CS
held the phone so that Det. Gregory could listen to the conversation. (DE 117-5
at 4). Det. Gregory heard the CS and Parker discuss the sale of heroin. (Id.).
Det. Gregory certified in an affidavit that he learned from the CS that on
October 8, 2014, Parker would be transporting 200 bricks of heroin to a
location in Ocean County, New Jersey, for sale. (DE 114-6 at 60).4

M.D. Friedenberger also assisted in the surveillance of Parker but is not a
defendant in this action. (DE 117-2 ¶ 7; DE 120-2 ¶ 7). Officers Bobal and Joaquin did
not participate in the actual surveillance of Parker on October 8, 2014. (DE 117-5 at
38). They arrived at the Jersey Gardens Mall after Parker and the plaintiffs had
already been detained. (Id.).
Plaintiffs contend that this certification is a “sham affidavit” and that Det.
Gregory only learned that 200 bricks of heroin were involved after finding 200 bricks
of heroin in Parker’s vehicle on October 8, 2014. I do not regard the issue as very
4

Det. Gregory then used a law enforcement database to find Parker’s place
of employment in Elizabeth, New Jersey. (DE 117-5 at 4). On October 7, 2014,
Det. Gregory and Det. Joaquin established surveillance of Parker’s vehicle at
that location. (Id.; DE 117-2

¶

17; DE 120-2 117). Parker eventually got in his

car and drove off, but the detectives were unable to follow him on the highway
because of the traffic conditions and Parker’s high rate of speed. (Id.).
The next day, October 8, 2014, Det. Gregory continued his surveillance
of Parker with a team of seven other officers, as well as members of the Ocean
County Prosecutor’s Office, starting at Parker’s place of employment. (DE 117-5
at 4—5, 33; DE 122-1

¶

5). As part of their tactical plan to follow Parker, the

officers continued their surveillance of him when he left his place of
employment around 3:00 P.M. and drove to his Newark apartment. (Id.).
Around a half hour later, Parker left his apartment and drove to the Jersey
Gardens shopping mall5 in Elizabeth, New Jersey, while under constant
surveillance. (Id.). Det. Gregory did not know in advance that Parker was
heading to Jersey Gardens but followed him there with the surveillance team.
(Id. at 33, 39).
Fombah Sirleaf is related to Liberia’s then-president, Ellen Johnson
Sirleaf. Fombah Sirleaf was the head of Liberia’s national law enforcement
organization. (Id. at 39; DE 117-2

¶

3; DE 120-2

¶

3). Around 2010, Sirleaf

worked undercover for the U.S. Drug Enforcement Agency as part of a
successful law enforcement initiative to dismantle an international drug
trafficking organization that sought to route drugs through, among other
countries, Liberia and the United States. (See DE 117-8 at 49—54). There is no
indication, however, that the officers who detained him knew these background
facts, which do not figure in the Fourth Amendment analysis.

material; the police had ample reason to suspect Parker of drug trafficking and to
place him under surveillance that day.
The official name of the mall is The Mills at Jersey Gardens®. It is located
adjacent to the New Jersey Turnpike in Elizabeth.
5

5

Plaintiffs Stanley Summerville and Fombah Sirleaf, both adult males, are
lawful green-card residents of the United States. (DE 117-8at 38, 44, 45). In
October 2014, Sirleaf came to the United States from Liberia to purchase
military equipment in his official capacity as a member of the Liberian
government. (DE 117-8 at 39; DE 117-2

¶ 3; DE 120-2 ¶ 3). On October 8,

2014, Sirleaf and Summerville, who are friends, were shopping together at the
Jersey Gardens shopping mall. (DE 117-2 ¶‘ 2, 40—41; DE 120-2

¶ 2, 40—41;

DE 117-8 at 39, 44, 45). Prior to visiting the mall, Sirleaf purchased around
$1,000 worth of various over-the-counter pharmaceutical items that he
intended to bring back to Liberia to assist with the Ebola epidemic. (Id.; DE
114-6 at 62, 77).
At about 3:31 p.m., Sirleaf and Summerville purchased two suitcases
from Marshalls, a store inside the mall. They then exited from the mall and
walked to their car, a black Mercedes SUV, in the mall parking lot. (DE 117-8
at 39, 40, 44; DE 117-2

¶J 1—4; DE 120-2 ¶IJ 1—4). There, they spent about 10

minutes rearranging their things, including the pharmaceutical items, and
placing them in the two new suitcases that they had just purchased. (DE 117-8
at 40, 44). They placed the suitcases in the trunk of the car and walked back
and forth between the seating areas of the car and the trunk as they
rearranged the items. (See Video).
As plaintiffs were reorganizing the items in their luggage, Parker pulled
his car into a parking spot. Parker’s spot was located across a driving lane and
about 30 feet down from the plaintiffs’ spot. (DE 117-2

¶C

46, 92; DE 120-2

9

46, 92; Video).
Parker parked his car next to another car, a grey Mountaineer, that was
already parked. (DE 117-5 at 44—45). The occupant of the Mountaineer got out
and got inside Parker’s car. (Id. at 45). That person did not communicate or
make any contact with the plaintiffs. (Id. at 45). After entering Parker’s car and
remaining there for around 20 seconds, that person got out of Parker’s car, got
back into the Mountaineer, and drove out of the parking lot, never to be seen
again. The Mountaineer driver was not detained or arrested, and the officers
6

did not even record the license plate number of the Mountaineer. (Id. at 45, 49,
52; Video at 1:45—2:45; DE 117-2

7

73; DE 120-2

¶

73). About a minute later,

Parker was arrested in the Jersey Gardens parking lot by Det. Keishaw. (DE
117-5 at 45, 47). The officers searched Parker’s vehicle and uncovered a duffel
bag that contained 200 bricks of heroin and $1,400 in cash. (DE 114-2
DE 117-1

1

¶

31;

31).

Det. Gregory pulled into an adjacent area of the parking lot about 15
seconds after Parker pulled into the parking lot. (DE 117-5 at 33, 45; Video at
1:20—40). Gregory’s car was located approximately 300 feet from the plaintiffs’
car and 330 feet from Parker’s car. (DE 117-2

¶7

53, 54; DE 120-2

¶1

53, 54).

As Det. Gregory was sun’eilling Parker, Gregory could see the plaintiffs at the
rear of their Mercedes SUV moving between the sides of the car and the trunk.
(DE 117-5 at 40, 41). When Gregory first saw the plaintiffs standing behind
their vehicle, he thought that Parker might have been going to meet them. (DE
117-2

¶

97; DE 120-2

¶

97). Gregory saw plaintiffs taking items out and

putting items into their suitcases, but he did not see what the items were. (Id.
at 44). Det. Gregory did not observe Parker communicating with the plaintiffs
at all; he did not see them approach Parker or vice versa. (Id. at 44). Det.
Gregory did not see plaintiffs using their cell phone and never saw them move
away from the immediate area of their parked car. (DE 117-2 ¶760,61; DE
120-2

¶1

60, 61).

At approximately the same time that the officers detained Parker, they
also stopped plaintiffs. (DE 117-5 at 47). It was Det. Gregory who made the
decision to stop the plaintiffs; he ordered the other officers to do it. (Id. at 47).
Det. Oregon- drove toward the plaintiffs in his car, then got out of his car and
jogged toward them with his gun drawn as he told them to show their hands.
(Id. at 48, 54). Det. Guathier (also with his gun drawn) and Det. Chariamonte
similarly approached the plaintiffs. (Id. at 54; DE 117-2

¶

110; DE 120-2

¶

110). The officers ordered the plaintiffs to lie down on the ground. (DE 117-5 at
48; DE 114-6 at 53—54, 106; Video). Det. Gregory frisked Sirleaf and Det.

7

Gauthier frisked Mr. Summerville; no weapon was found. (Id. at 48). Det.
Gregory handcuffed Mr. Sirleaf and Det. Gauthier handcuffed Mr. Summerville.
(DE 117-2

¶

111; DE 120-2

r

111; DE 1 14-6 at 53—54, 106; Video). At this

point, at the latest, plaintiffs obviously were not free to leave. (Id. at 50).
The officers then began to question the plaintiffs. (DE 117-5 at 49).
According to his deposition testimony, Det. Oregon’ explained to Sirleaf that a
drug deal had occurred directly across from them. He asked the plaintiffs
whether they knew Parker, or the occupants of the other vehicles. (Id.; DE 1146 at 55; DE 114-6 at 61).). The plaintiffs said that they did not. (DE 117-5 at
50). According to Mr. Sirleafs deposition testimony, the officers repeatedly
accused him of lying about whether he knew Parker and of lying to the
Transportation Security Administration (“TSA”) officials concerning whether he
may be infected with the Ebola virus. (DE 117-8 at 41).
Mr. Summerville is a U.S. resident who was born in Liberia but had
resided in the U.S. for 29 years. (DE 114-2 at 9). Mr. Summerville provided the
officers with a New Jersey driver’s license. (DE 114-2 at 10). Mr. Sirleaf is a
U.S. resident. He told the detective that he had traveled to the United States
from Liberia the day before. (DE 114-2 at 10). Mr. Sirleaf provided the officers
with a Pennsylvania driver’s license but did not display his passport or green
card because he had left them in his hotel room. (DE 114-2 at 10; DE 114-6 at
102).
The officers and plaintiffs spoke for around 10 minutes before Det.
Gregory presented Mr. Summerville with a consent to search form for his
vehicle. (DE 114-6 at 62). Mr. Summerville freely consented to the search of his
vehicle. (DE 114-6 at 112; DE 114-6 at 62; DE 117-8 at 41). The search took
around 30 minutes. (DE 114-6 at 62). It did not yield weapons, drugs, or
incriminating evidence. (DE 117-5 at 49; DE 117-2

¶

114; DE 120-2’ 114).

The vehicle search did yield the suitcases and approximately $1,000 worth of
over-the-counter medications. (DE 114-6 at 62). The plaintiffs provided Det.
Oregon’ with the receipts for these items. (Id.). The police continued to
question the plaintiffs, who remained in handcuffs. (DE 117-8 at 41).
8

After the vehicle search, Detectives Gregory and Joaquin went to the
mall’s security office to review the surveillance video. It took about 10 minutes
to get to the office from the parking area. (DE 114-2 at 11). The detectives were
in the security office for approximately 10 to 15 minutes. The surveillance video
confirmed that the plaintiffs were not involved in Parker’s narcotics
transaction. (Id.). The officers then removed the plaintiffs’ handcuffs but did
not release them. (DE 114-2 at 11). At this point, they had been in custody for
about 60 minutes.
At some point, Mr. Sirleaf had stated in response to questioning that he
had arrived from Liberia the day before, was director of the national law
enforcement organization in Liberia, was travelling to the U.S. to look at
military equipment, and had assisted U.S. law enforcement in the past. (DE
114-6 at 102). Det. Friedenberger contacted an investigator with the Joint
Terrorism Task Force (“JflF”) of the Federal Bureau of Investigation “to verify
[Mr. Sirleafs] travels and what was going on” due to “Mr. Sirleaf not having any
of his documents and the things that he stated to me.” (Id.). The JYF F was able
to verify Mr. Sirleafs travels and alleviate concerns regarding possible terrorist
activity, which took the JYPF investigator approximately 30 minutes to do. (Id.).
After a detention that lasted a total of about 90 minutes, the officers
released the plaintiffs. The officers told them that a surveillance video showed
that they did not have contact with Parker. (DE 117-8 at 41; DE 114-2 at 13;
DE 117-2 at 36).
I have reviewed the surveillance video (there is no audio). It shows
plaintiffs in the mall parking lot maneuvering items in the trunk and walking
between the doors of their black Mercedes SUV and the back of the car. (See
Video). The surveillance video (or at least the usable, excerpted portion) is
approximately 4 minutes long. When it begins, the plaintiffs are already next to
their SUV rearranging the items in their suitcases. (Id. at 0:01; DE 122-1

¶

26).

The Mountaineer can already be seen parked in the parallel row of spots across
from the plaintiffs. Five people walk in a group through the parking lot and get

9

into a car that is a few spots away from where the plaintiffs are standing.
(Video at 0:46—1:50). Around a minute and a half into the surveillance video,
Parker’s white Lexus can be seen entering the parking lot and pulling into the
spot directly next to the Mountaineer. (Id. at 1:20—33). Two seconds after
Parker’s car enters the parking lot, Det. Gregory’s undercover vehicle and
another officer’s vehicle (a van and a pickup truck) can be seen entering the
area, i.e., driving outside the periphery of the parking lot and making a left turn
onto a lane that is part of the parking area and adjacent to the area where
plaintiffs and Parker were located. (Id. at 1:20—40). From then on, Det.
Gregory’s vehicle cannot be seen in the video until the plaintiffs are detained.
The video shows that a few seconds after Parker pulls into his spot, a
person exits the Mountaineer and enters the passenger seat of Parker’s white
Lexus, remains there for approximately 20 seconds, gets back into the
Mountaineer, and drives out of the mall parking lot. (Id. at 1:38—2:45; DE 1172

¶

72; DE 120-2

¶

72). Throughout this time, plaintiffs continue arranging

items in their trunk and walking between the passenger doors and trunk of
their Mercedes SUV.
About 15 seconds after the Mountaineer exits from the parking lot,
Parker begins to pull his car out of his parking spot. (Video at 2:57). At this
point, the surveillance camera turns away from the parking lot for about 10
seconds; all that can be seen is a tree which obstructs the view. (Id. at 2:59—
3:12). When the camera turns back to the parking lot, Parker’s white Lexus is
out of its spot and waiting behind another vehicle. (Id. at 3:13). The plaintiffs
are still consolidating the items in the trunk of their car. The camera again
turns away from the parking lot, this time for approximately 25 seconds. (Id. at
3:20—45).
When the camera turns back to the relevant area, Summerville can be
seen with his hands in the air as an officer points a gun at him. (Video at 3:45—
50). Two undercover police cars pull up to the plaintiffs’ vehicle and three
officers can be seen detaining Summerville. Sirleaf is out of view of the camera

10

because he is on the far side of the Mercedes SUV, but Summerville can be
seen getting down on the ground as the officers detain him. Parker can also be
seen being detained near his white Lexus. (Id. at 3:51—55).
Overall, the officers detained the plaintiffs for approximately 90 minutes,
and they were handcuffed for about 60 minutes of that period. (DE 117-2
117; DE 120-2

¶

¶

117). Sirleaf at least concededly was not free to leave during

the entire period.6 (Id.). The plaintiffs assert that they suffered physical and
emotional discomfort during this time. Neither plaintiff was treated by any kind
of medical professional as a result of the detention. (DE 117-2
120-2

¶‘

118—20; DE 114-2

¶J

9

118—20; DE

67, 68; DE 117-1 ‘167,68). The officers did not

stop any other person besides the plaintiffs and Parker during the October 8,
2014 incident. (DE 117-5 at 51).
Plaintiffs claim that there were white shoppers in the mall parking lot.
(DE 117-2

¶

121; DE 120-2

¶

121). Specifically, Sirleaf certifies that during the

10-minute period in which the plaintiffs were loading items into their suitcases,
there was a white shopper parked next to their vehicle loading purchases into
his vehicle. This, he says, occurred minutes before the officers detained the
plaintiffs. (DE 117-8 at 40 ¶ 17). In the surveillance video, however, no white
shoppers can be seen. From the time that Parker pulled into the parking lot,
the video shows no white shopper loading items into a car near the plaintiffs.
(See Video). Sirleaf states that he also saw white shoppers at the time he was
handcuffed. (DE 114-6 at 92, 94). The plaintiffs do not report hearing the
officers utter any racial slurs. (Id. at 95).
Det. Gregory stated during his deposition that he suspected there might
have been countersurveillance or lookouts in the area of what he believed to be
a drug transaction. In addition, he said, he suspected there could be someone

For the last 30 minutes, while the officers were checking Sirleaf’s immigration
status, Summen’ille was not physically restrained. His counsel stated at oral
argument, however, that he could not have driven away without leaving his friend
behind. Whether Summen’ille was free to leave during the last 30 minutes presents a
disputed issue of fact.
6

11

else in the area to whom additional drugs or money would be delivered. (DE
1 17-5 at 49). According to Det. Gregory, those suspicions were based on the
totality of information that he had acquired about Parker, such as the large
quantity of narcotics and sum of money that could have been in play, as well
as his background knowledge about these types of operations. (Id. at 49). Det.
Gregory “wanted to detain Mr. Summeiwille and Sirleaf temporarily to ascertain
if they were involved or not” in Parker’s drug dealing. (Id. at 49). He initially
thought that Parker ‘vas going to meet the plaintiffs when Parker pulled into
the parking lot. (DE 117-5 at 44).
Det. Gregory did not know who the plaintiffs were, but his suspicions
became aroused when Parker “happened to pull [his car] directly across” from
the plaintiffs. (Id. at 56). At the time he ordered the plaintiffs to be stopped, he
had not ruled out the possibility that they had communicated with Parker
through a cellphone or with hand signals. (Id. at 59). He had not seen this,
however. According to Det. Gregory’s deposition, race did not play any part in
his suspicions, and he would have stopped white persons parked across from
Parker whose actions were similar to those of plaintiffs. (Id. at 56).
Det. Gregory wrote a New Jersey Police Investigative Report dated
November 24, 2Ol4 (the “Report”) to memorialize this incident. (DE 117-5 at
3—9). That Report largely tracks the facts outlined above.8 One potential
inaccuracy within the Report that plaintiffs highlight is whether Det. Gregory
was accurate when writing in the Report that it was “after observing the hand
to hand transaction” between Parker and the person in the Mountaineer that
he “requested that surveillance units initiate an investigative stop of Parker’s
vehicle and [the plaintiffs] to determine their involvement.” (DE 117-5 at 5)

Although the Report is dated November 24, 2014, Det. Gregory testified that he
drafted it directly after the October 8 incident. (DE 117-5 at 50).
Det. Gregory corrected one error in the Report during his deposition testimony.
He inaccurately wrote in the Report that Parker arrived in the parking lot before the
Mountaineer arrived. (DE 117-5 at 45). When Parker pulled into the parking lot, the
Mountaineer was already parked there. (Id.; see Video).

8

12

(emphasis added). Plaintiffs assert that the officers did not view the “hand to
hand transaction” in person but instead only learned of it afterward, when
reviewing the surveillance video. Det. Gregory’s deposition testimony on this
point is equivocal. (See DE 117-5 at 45

(“Q:

Is it fair to say that you saw what

you described or what you thought was hand to hand? A: Yes.

Q:

Or later

learned to be a hand to hand? A: Yes.”); but see DE 117-5 at 49 (111:7—14)).
Det.

Sgt.

Ciano, contradicting Det. Gregory, testified that the officers first

learned that there was a hand to hand transaction between Parker and the
person in the Mountaineer when they reviewed the surveillance video, i.e., after
the officers had already detained the plaintiffs. (DE 117-2

¶

77; DE 120-2

¶

77;

DE 117-6 at 11). Specifically, Det. Sgt. Ciano testified that the officers “didn’t
know [that Parker engaged in any transaction with the person in the
Mountaineer] until after reviewing the surveillance video.” It was when
reviewing the video, he said, that “they noticed the hand to hand [between the
person in the Mountaineer and Parker] and that [the plaintiffs] weren’t
involved.” (DE 117-6 at 11(34:15—35:14 (“Nobody knew whether your Plaintiffs
were involved or not. That’s why I said go see, go view [the surveillance video to]
see what happened”))). This, said Ciano, was why there was no communication
among the officers regarding the person in the Mountaineer: they did not
realize Parker’s interaction with the Mountaineer driver had occurred. (Id.

(“Q:

Is there any communications Lbetween the officers] regarding the person that
Parker was alleged to have conducted a hand to hand narcotics transaction? A:
No, because we didn’t know’ that until after reviewing the surveillance video.”).
Det. Sgt. Ciano’s testimony, then, is to some degree inconsistent with
Det. Gregory’s testimony and Report. (DE 120-2

C

79).

Officers Ciano, Harrison, Friedenberger, and Kelshaw did not see any
conduct related to the plaintiffs prior to the plaintiffs’ detention. (DE 117-2
68, 69; DE 120-2

1

68, 69). When Detectives Joaquin and Bobal arrived at the

mall, the other officers had already detained the plaintiffs. (DE 117-2
120-2

¶

¶

¶

70; DE

70). Det. Gauthier did not see the plaintiffs engage in any criminal

behavior or do anything suspicious. (DE 117-7 at 30, 33; DE 117-2
13

¶

63; DE

120-2

¶

63). State Police Col. Fuentes, who was not present, had no knowledge

or involvement with the events that transpired between the officers, the
plaintiffs, and Parker on October 8, 2014. (DE 114-2
II.

¶

77; DE 117-1

‘

77).

LEGAL STANDARD

Federal Rule of Civil Procedure 56(a) provides that summary judgment
should be granted “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); see also Anderson

ii.

Liberty Lobby, Inc., 477 U.S. 242, 248

(1986); Kreschollek u. S. Stevedoring Co., 223 F.3d 202, 204 (3d Cir. 2000). In
deciding a motion for summary judgment, a court must construe all facts and
inferences in the light most favorable to the nonmoving party. See Boyle v. Cty.
of Allegheny Pa., 139 F.3d 386, 393 (3d Cir. 1998). The moving party bears the
burden of establishing that no genuine issue of material fact remains. See
Celotex Corp. v. Catrett, 477 U.S. 317, 322—23 (1986). “[W]ith respect to an
issue on which the nonmoving party bears the burden of proof... the burden
on the moving party may be discharged by ‘showing’—that is, pointing out to
the district court—that there is an absence of evidence to support the
nonmoving party’s case.” Id. at 325.
Once the moving party has met that threshold burden, the non-moving
party “must do more than simply show that there is some metaphysical doubt
as to material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.S. 574, 586 (1986). The opposing party must present actual evidence that
creates a genuine issue as to a material fact for trial. Anderson, 477 U.S. at
248; see also Fed. R. Civ. P. 56(c) (setting forth the types of evidence on which
a nonmoving party must rely to support its assertion that genuine issues of
material fact exist). “[Ujnsupported allegations

...

and pleadings are

insufficient to repel summary judgment.” Schoch v. First Fid. Bancorp., 912
F.2d 654, 657 (3d Cir. 1990); see also Gleason a Nonvest Mortg., Inc., 243 F.3d
130, 138 (3d Cir. 2001) (“A nonmoving party has created a genuine issue of
material fact if it has provided sufficient evidence to allow a july to find in its
favor at trial.”). If the nonmoving party has failed “to make a showing sufficient
14

to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial,

.

.

.

there can be ‘no

genuine issue of material fact,’ since a complete failure of proof concerning an
essential element of the nonmoving party’s case necessarily renders all other
facts immaterial.” Katz v. Aetna Cas. & Sur. Co., 972 F.2d 53, 55 n.5 (3d Cir.
1992) (quoting Celotex, 477 U.S. at 322—23).
When the parties file cross-motions for summary judgment, the
governing standard “does not change.” Auto-Owners Ins. Co. v. Stevens & Ricci,
Inc., 835 F.3d 388, 401 (3d Cir. 2016) (citing Appelmans v. City of Phila., 826
F.2d 214, 216 (3d Cir. 1987)). The court must consider the motions
independently, in accordance with the principles outlined above. Goldwell of
N.J, Inc. v. KPSS, Inc., 622 F. Supp. 2d 168, 184 (D.N.J. 2009); Williams v.
Philadelphia Housing Auth., 834 F. Supp. 794, 797 (E.D. Pa. 1993), aff’d, 27
F.3d 560 (3d Cir. 1994). That one of the cross-motions is denied does not imply
that the other must be granted. For each motion, “the court construes facts
and draws inferences in favor of the party against whom the motion under
consideration is made” but does not “weigh the evidence or make credibility
determinations” because “these tasks are left for the fact-finder.” Pichler v.
UNITE, 542 F.3d 380, 386 (3d Cir. 2008) (internal quotation and citations
omitted); see also Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358,
1363 (3d Cir. 1992).
III.

DISCUSSION

Section 1983 does not create a substantive right but instead provides a
remedy for the violation of rights created by federal law. 42 U.S.C.

§

1983;

Oklahoma City v. Tuttle, 471 U.S. 808, 816, 105 S. Ct. 2427, 2432, 85 L.Ed.2d
791 (1985). A prima facie case under

§

1983 requires a plaintiff to demonstrate

that: (1) a person deprived him or her of a federal right; and (2) the person who
deprived him or her of that right acted under color of state law. Grornan v. Twp.
of Manalapan, 47 F.3d 628, 633 (3d Cir. 1995) (citing Gomez v. Toledo, 446
U.S. 635, 640, 100 S. Ct. 1920, 1923 (1980)). There is no question here that

15

the defendants were acting under color of state law; they are police officers who
were acting in the course of their official investigatory duties.
A. False Arrest I False Imprisonment
1. The Fourth Amendment and Terry
The torts of false arrest and false imprisonment, in their constitutional
guise under

§

1983, require a detention that did not comply with the standards

of the Fourth Amendment.° The Fourth Amendment, which is made applicable
to the states by the Fourteenth Amendment, guards against, inter alia,
unreasonable seizures of the person:
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to
be seized.

“False arrest and false imprisonment overlap; the former is a species of the
latter.” Wallace u. Kato, 549 U.S. 384, 388, 127 5. Ct. 1091, 1095 (2007); Manuel v.
City ofJoliet, ill., 137 S. Ct. gil, 926 (2017); see also D. Dobbs, The Law of Torts § 36,
at 67 (2000) (“False arrest is a term that describes the setting for false imprisonment
when it is committed by an officer or by one who claims the power to make an
arrest.”). Each of these common law torts has a constitutional analogue which may be
asserted in a § 1983 action.

9

“To state a claim for false arrest under the Fourth Amendment, a plaintiff must
establish: (1) that there was an arrest; and (2) that the arrest was made without
probable cause.” James v. City of Wilkes-Bane, 700 F.3d 675, 680 (3d Cir. 2012)
(citing Groman v. Twp. of Manalapan, 47 F.3d 628, 634 (3d Cli-. 1995); Dowling v. City
of Phila., 855 F.2d 136, 141 (3d Cir. 1988)). A purported investigative stop may
develop into an impermissible defacto arrest, and “[un certain circumstances, it can
be difficult to distinguish between a Terry stop, which requires only reasonable
suspicion, and a de facto arrest, which must be supported by probable cause.” United
States v. Johnson, 592 F.3d 442, 447—48 (3d Cir. 2010) (citing United States u. Sharpe,
470 U.S. 675, 685 (1985)).
The constitutional tort of false imprisonment “is also grounded in the Fourth
Amendment’s prohibition against unreasonable seizures.” Leith v. Middlesex &
Somerset Cty. Prosecutor’s, No. 15-cv-7227 (FLW). 2016 WL 3647995, at *8 (D.N.J.
July 8, 2016) (citing Groman, 47 F.3d at 636). “Notably, a claim under § 1983 for false
imprisonment based on a detention pursuant to that arrest refers only to the period of
incarceration lasting from the moment of arrest until the first legal action, e.g., an
Id.
arraignment
16

U.S. Const., amend. IV. Quintessentially, the Fourth Amendment prohibits
arrests made without probable cause. See James v. City of Wilkes—Bane, 700
Fad 675, 680 (3d Cir. 2012). In general, a formal arrest, or a seizure
amounting to an arrest, “must be effectuated with a warrant based on probable
cause.” Johnson, 592 F.3d at 447 (quoting United States v. Robertson, 305 F.3d
164, 167 (3d Cir. 2002)); Peterson v. Attorney Gen. Pennsylvania, 551 F. App’x
626, 629 (3d Cir. 2014) (“[Pjrobable cause requires only a probability or
substantial chance of criminal activity, not an actual showing of such activity.”
(internal citation and quotation omitted)). Here, there was no formal arrest of
the plaintiffs, and no one argues that this detention met the probable-cause
requirements for an arrest.
A lesser level of Fourth Amendment protection—the requirement of
“reasonable suspicion”—extends to brief investigative detentions, known as
Terry stops, that fall short of traditional arrests. See Terry v. Ohio, 392 U.S. 1
(1968); United States v. Arvizu, 534 U.S. 266, 273, 122 S. Ct. 744, 750 (2002);
United States v. Johnson, 592 F.3d 442, 447 (3d Cir. 2010). Under the “wellestablished exception to the warrant requirement” set forth in Temj, “an officer
may, consistent with the Fourth Amendment, conduct a brief, investigatory
stop when the officer has a reasonable, articulable suspicion that criminal
activity is afoot.tm Id. (quoting illinois v. Wardlow, 528 U.S. 119, 123, 120 5. Ct.
673 (2000)). The “reasonable suspicion” standard governing a Terry stop is less
exacting than the probable cause standard governing an arrest, both in terms
of the “quantity or content” and reliability of the information required. Alabama
v. White, 496 U.S. 325, 330 (1990); see also Arvizu, 534 U.S. at 273—74
(“Although an officer’s reliance on a mere ‘hunch’ is insufficient to justify a
stop,

.

.

.

the likelihood of criminal activity need not rise to the level required for

probable cause, and it falls considerably short of satisfying a preponderance of
the evidence standard.” (internal citations and quotations omitted)).
Under the reasonable suspicion standard, “the police officer must be able
to point to specific and articulable facts which, taken together with rational

17

inferences from those facts, reasonably warrant intrusion.” Temj, 392 U.S. at
21. “A Temj stop that is supported by- reasonable suspicion at the outset may
nonetheless violate the Fourth Amendment if it is excessively intrusive in its
scope or manner of execution.” United States v. Johnson, 592 F.3d 442, 451 (3d
Cir. 2010). Thus, the lawfulness of a Ternj stop under the Fourth Amendment
requires a dual analysis: first, the court “examineLsj ‘whether the officer’s
action was justified at its inception’—that is, whether the stop was supported
by reasonable suspicion at the outset”; second, the court “determine[sl whether
the manner in which the stop was conducted ‘was reasonably related in scope
to the circumstances which justified the interference in the first place.”
Johnson, 592 F.3d at 452 (quoting Temj, 392 U.S. at 19—20).
Here, the parties agree that the plaintiffs were “seized” for Fourth
Amendment purposes.’° The parties also agree that the plaintiffs’ detention is
properly analyzed as an investigative Temg stop. (P1. Br. at 7, 26—27, 41). They
differ, however, as to whether the detention was supported by reasonable
suspicion and, even if so, whether it exceeded the permissible bounds of such a
stop.

2. Reasonable suspicion
The initial question, then, is whether the officers possessed reasonable
suspicion of criminal activity at the outset that was sufficient to justify’ a Terry
stop of Mr. Sirleaf and Mr. Summenille. As to this narrow issue, I find that
triable issues of fact preclude summary judgment.
Part of the reasonable-suspicion basis for detaining the plaintiffs,
according to Det, Gregory, was the highly suspicious interaction between
A “seizure” of the person has a particular meaning under the Fourth
Amendment. ‘[A] person has been ‘seized’ within the meaning of the Fourth
Amendment only if, in view of all the circumstances surrounding the incident, a
reasonable person would have believed that he [or she] was not free to leave.” United
States u. Frost, 999 F.2d 737, 740 (3d Cir. 1993) (quoting United States u. Mendenhall,
446 U.S. 544, 554, 100 S. Ct. 1870, 1877 (1980)). The defendants do not deny that
the plaintiffs here were “seized” (Def. Br. at 21), and the concession is apt. Plaintiffs
were detained by several officers at gunpoint, they submitted to authority, they were
handcuffed, and they remained in custody for 90 minutes.
10

18

Parker and the person in the Mountaineer. The surveillance video clearly shows
the person in the Mountaineer enter Parker’s Lexus, remain there briefly, then
leave in a fashion that would be suggestive of a potential drug transaction
under the circumstances (i.e., with the benefit of the corroborated information
from the CS). Following the parties, I will make the defendant-favorable
inference that this was a hand-to-hand drug transaction between Parker and
the Mountaineer driver, and designate it as such.
I set aside for a moment the issue of whether a transaction between
Parker and the Mountaineer driver would cast suspicion on the plaintiffs at all,
and first consider an antecedent issue of timing. Reasonable suspicion “is
measured before the search; information acquired subsequent to the initial
seizure cannot retroactively justify a Terry stop.” United States v. Goodrich, 450
F.3d 552, 559 (3d Cir. 2006) (collecting cases). Understanding what Det.
Gregory knew at the time he ordered the plaintiffs’ detention, then, is critical to
an evaluation of the reasonableness of the initial justification for the seizure.
Terry, 392 U.S. at 2 1—22 (“[IJt is imperative that the facts be judged against an
objective standard: would the facts available to the officer at the moment of the
seizure.

.

.

warrant a Fperson] of reasonable caution in the belief that the action

taken was appropriate?”) (emphasis added); United States v. Foster, 891 F.3d
93, 104 (3d Cir. 2018) (“Information acquired after the initial seizure is not
relevant to the reasonable suspicion analysis.”).
According to Det. Gregory’s motion papers, he had seen the hand-tohand drug transaction at the time he ordered both Parker and the plaintiffs
detained. The basis for the detention of Mr. Sirleaf and Mr. Summerville was
Det. Gregory’s belief that they had played some role in that transaction,
perhaps as lookouts. A key factual issue, then, is whether Det. Gregory was
aware of the hand-to-hand transaction between Parker and the Mountaineer
driver in real time, i.e., when that interaction occurred, or whether he learned of
it only later, after plaintiffs had been detained, when he viewed the surveillance
video.

19

The evidence conflicts as to whether Det. Gregory actually witnessed the
Mountaineer hand-to-hand transaction before making the decision to detain
the plaintiffs. As to this issue, Det. Gregory’s deposition testimony is equivocal.
(See DE 117-5 at 45

(“Q:

Is it fair to say that you saw what you described or

what you thought was hand to hand [between Parker and the person in the
Mountaineer]? A: Yes.

Q:

Or later learned to be a hand to hand? A: Yes.”); but

see DE 117-5 at 49 (111:7—14)). Det. Gregory’s police investigative Report,
however, stated plainly that it was “after observing the hand to hand
transaction” between Parker and the person in the Mountaineer that Det.
Gregory “requested that surveillance units initiate an investigative stop of
Parker’s vehicle and [the plaintiffs] to determine their involvement.” (DE 117-5
at 5) (emphasis added).
There is much evidence that a competent cross-examiner could use to
cast doubt on this account. First, and most glaringly, the police did not stop
the Mountaineer from leaving the lot or attempt to arrest the Mountaineer
driver. Rather, Det. Gregory ordered the team to sweep in and detain the
plaintiffs (and Parker, of course). If Det. Gregory or the other officers had
witnessed the hand-to-hand transaction, their failure to pursue or detain the
Mountaineer driver—or even record the Mountaineer’s license plate number—
would he inexplicable.
Det. Sgt. Ciano’s testimony, too, contradicts Det. Gregory’s account.
Ciano testified that Det. Gregory and the other officers first learned that there
was a hand-to-hand transaction between Parker and the person in the
Mountaineer only later, upon reviewing the surveillance video. (DE 117-2
DE 120-2

¶

77; DE 117-6 at 11). As Det.

Sgt.

¶

77;

Ciano remembered it, the officers

“didn’t know [about the Mountaineer hand-to-handj until after reviewing the
surveillance video” and that the review of the surveillance video was “when they
noticed the hand to hand [between the Mountaineer driver and Parker] and
that [the plaintiffs] weren’t involved.” (DE 117-6 at 11(34:15—35:14)). Indeed,
the officers’ inability to determine whether the plaintiffs were involved was the

20

motivation for checking the surveillance video. (See id. (“Nobody knew whether
your Plaintiffs were involved or not. That’s why I said go see, go view [the
surveillance video to] see what happened.”)). According to Det. Sgt. Ciano, there
was no communication whatever among the officers regarding the person in the
Mountaineer until they reviewed the video. (Id.

(“Q: Is there any

communications [between the officers] regarding the person that Parker was
alleged to have conducted a hand to hand narcotics transaction? A: No,
because we didn’t know that until after reviewing the surveillance video.”)).
The resolution of this factual question regarding timing is relevant to the
issue of whether Det. Gregory’s initial order to detain the plaintiffs was based
on anything more than a “mere hunch.” Arvizu, 534 U.S. at 274 (quoting Temj,
392 U.S. at 27) (“[A]n officer’s reliance on a ‘mere hunch’ is insufficient to
justify a stop”). If Det. Gregory did not see or learn about the hand-to-hand
transaction with the Mountaineer driver, he could not have based his
suspicions about the plaintiffs on their perceived relation to that hand-to-hand
transaction. His suspicions about the plaintiffs would then have been based on
no more than their proximity to Parker’s vehicle in a public parking lot and
reshuffling of their luggage. See United States v. Navedo, 694 F.3d 463, 468 (3d
Cir. 2012) (“The Supreme Court has never viewed Terry as a general license to
detain everyone within arm’s reach of the individual whose conduct gives rise
to reasonable suspicion.”); see also Tharra v. illinois, 444 U.S. 85, 91, 100 S.
Ct. 338, 342 (1979) (“[A] person’s mere propinquity to others independently
suspected of criminal activity does not, without more, give rise to probable
cause to search that person.”).”
Reasonable suspicion is a fact-sensitive determination and will often
depend on development of all the facts and resolution of all factual disputes.
See Goodrich, 450 F.3d at 558 (“As the initial stop, and nothing else,

“Although the Court in Ybarra was discussing probable cause to arrest rather
than the reasonable suspicion for a stop under Ternj, the Court’s pronouncement is
equally applicable to this situation.” Nuvedo, 694 F.3d at 469.
I’

21

constitutes the alleged constitutional violation, the facts and circumstances
known to the troopers preceding the vehicle stop acquire particular salience.”);
Arviva, 534 U.S. at 266 (“When discussing how reviewing courts should make
reasonable-suspicion determinations, we have said repeatedly that they must
look at the totality of the circumstances of each case to see whether the
detaining officer has a particularized and objective basis for suspecting legal
wrongdoing.”) (internal citation and quotation omitted).
There is evidence from which a fact finder could conclude that the
officers missed the interaction with the Mountaineer driver, believed that
Parker must have been there to meet someone, and fastened their suspicions
on the plaintiffs. Still, on summary judgment I sit to identify issues of fact, not
resolve them. It is also possible that a fact finder could believe Det. Gregory’s
statement that he witnessed the hand-to-hand at the time. If so, then it is
somewhat easier to construct a factual mosaic in which it was permissible to
detain the plaintiffs briefly to determine whether they were acting as lookouts
for that drug transaction.
Plaintiffs posit that Det. Gregory intentionally distorted the facts, using
hindsight to bolster his basis for detaining the plaintiffs. Even assuming that
the Report is incorrect, however, deliberate falsehood is not the only possible
interpretation. Det. Gregory wrote the Report after having learned all the facts;
some combination of confirmation bias and simple mistake could explain his
error (if error it was) as to when it was that he learned each fact.
The timing issue aside, I consider Det. Gregory’s Report at face value. At
best, it suggests some basis for a brief detention of the plaintiffs. Det. Gregory
surmised that the plaintiffs were lookouts or in some other way involved with
Parker because they were rearranging items in their trunk in relative proximity
to the hand-to-hand transaction. I am vary of such reasoning, which might
equally support a finding of reasonable suspicion as to any nearby shopper
loading his or her purchases in a car. That would be an impermissibly broad
reading of Fourth Amendment jurisprudence. See Navedo, 694 F.3d at 468;

22

Reid v. Georgia, 448 U.S. 438, 441, 100 5. Ct. 2752, 2754 (1980); Tharra, 444
U.S. at 91; Temj, 392 U.S. at 27.

Det. Gregory testified that when he was initially driving by the parking
area, he already thought that Parker was driving to meet the plaintiffs there.
That inference, however, is not supported by observations. He had seen no
more than the plaintiffs’ loading and rearranging their mall purchases in the
parking lot of the mall.
Concededly, however, the plaintiffs were doing a little more than simply
loading their purchases in the car; an experienced officer might have suspected
that the back-and-forth with the luggage was a bit of stage business contrived
to justify the continued presence of a lookout for a drug deal. Det. Gregory
claims that his background knowledge and expertise in these types of
operations contributed to his suspicion of the plaintiffs. While it is true that
officers can draw on their own experience and specialized training in making
inferences, Arvizu, 534 U.S. at 273, those inferences must be reasonable. Det.
Gregory still must be able to point to “some objective manifestation that [the
plaintiffs were] or [were] about to be, engaged in criminal activity.” Johnson v.
Campbell, 332 F.3d 199, 206 (3d Cir. 2003) (internal citations and quotations
omitted). Here, I am willing to indulge a presumption that an experienced
officer, considering the totality of the circumstances, might consider the
plaintiffs’ conduct a little unusual and decide to investigate further.
On this motion, I interpret the facts in the light most favorable to the
police defendants. I find it possible that a juror could accept Det. Gregory’s
version, and therefore I deny both sides’ summary judgment motions on the
threshold issue of reasonable suspicion.
3. Scope of the detention
I move to the second prong of the dual Terry analysis—whether,
assuming that reasonable suspicion existed, the officers’ conduct was
“reasonably related in scope to the initial justification for the stop and the
officers’ legitimate concerns for the safety of themselves and the general

23

public.” Johnson, 592 F.3d at 452. To put it another way, this prong asks
whether this remained within the bounds of a limited investigative stop, or
whether it turned into a defacto arrest without probable cause.
The scope of a Terry stop must be limited and must involve the least
intrusive means reasonably available to verify or dispel the officer’s suspicion
in a short period of time. Typically, it should not approach the conditions of an
arrest. See Florida u. Royer, 460 U.S. 491, 500, 103 S. Ct. 1319, 1325 (1983)

(“In the name of investigating a person who is no more than suspected of
criminal activity, the police may not carry out a full search of the person or of
his automobile or other effects. Nor may the police seek to verify their
suspicions by means that approach the conditions of arrest.”); id. at 510—11
(Brennan, J., concurring) (“The scope of a Terry-type investigative stop and any
attendant search must be extremely limited or the Terry exception would
swallow the general rule that Fourth Amendment seizures and searches are
reasonable only if based on probable cause.

.

.

.

jAjny suggestion that the Terry

reasonable suspicion standard justifies anything but the briefest of detentions
or the most limited of searches finds no support in the Terry line of cases.”)
(internal citation and quotations omitted); United States v. Place, 462 U.S. 696,
709, 103 S. Ct. 2637, 2645 (1983) (“[Tjhe brevity of the invasion of the

individual’s Fourth Amendment interests is an important factor in determining
whether the seizure is so minimally intrusive as to be justifiable on reasonable
suspicion.”).
When evaluating whether a Terry stop is minimally intrusive, courts
consider the duration of the stop, the law enforcement purposes justifying the
stop, whether the police diligently sought to carry out those purposes given the
circumstances, and the alternative means that the police could have used to
achieve their end. United States v. Leal, 235 F. App’x 937, 941 (3d Cir. 2007).
Thus, although duration is a critical factor, reasonableness is not solely a
question of duration. The Third Circuit has held, for example, that the “use of
guns and handcuffs must be justified by the circumstances’ that authorize an

24

investigative detention in the first place.” Johnson, 592 F.3d at 452—53 (quoting
Baker u. Monroe Twp., 50 F.3d 1186, 1193 (3d Cir. 1995)).

In this case, the officers detained the plaintiffs for around 90 minutes.
Absent some unusual circumstances, that is simply too long for a Terry
investigative stop. Classically, an investigative stop consists of a few brief
questions,

plus,

if justified, a patdown for weapons. I do not say that it cannot

exceed those bounds, but the facts of Temj are relevant to its meaning.
United States a Place, supra, is highly instructive. There, the U.S.

Supreme Court considered the stop of an air traveler based on reasonable
suspicion that his luggage contained narcotics. The officers transported the
luggage to another airport where, 90 minutes after the initial seizure, a trained
dog alerted the officers to the presence of narcotics. That dog alert, not itself a
Fourth Amendment search, provided probable cause for the issuance of a
search warrant.12 Drugs were found in the suitcase, the traveler was charged
criminally, and he moved to suppress the evidence. The Supreme Court held
that this detention, with reasonable suspicion but without probable cause,
exceeded the permissible limits of a Temj stop, and upheld the Court of
Appeals’ reversal of the trial court’s denial of the motion to suppress.
The Court in Place accepted that the officers’ observations would have
permitted a brief investigative stop (which could have included a dog sniff if a
trained dog had been available). While declining to announce a rigid time limit,
the Court observed that the “brevity” of a stop is critical to the Terry analysis. It
held that “although we decline to adopt any outside time limitation for a
permissible Terry stop, we have never approved a seizure of the person for the
prolonged 90-minute period involved here and cannot do so on the facts

Interestingly, it does not appear that the officers actually detained the traveler
himself—although he could not have left unless he was willing to do so without his
luggage. The Court, however, held that a seizure and detention of luggage, no less
than a seizure of the person, was subject to a Terry analysis. 462 U.S. at 709—10. It is
not necessary to explore the implications for Mr. Summen’ille’s claim that, even at the
60-minute mark, he could not have driven away without leaving behind his friend, Mr.
Sirleaf, who was his passenger.
12

25

presented by this case.” 462 U.S. at 709—10. Indeed, Place held that under

those circumstances “/tJhe length of the detention of respondent’s luggage alone
preclude[dI the conclusion that the seizure was reasonable in the absence of
probable cause.” Id. at 709 (emphasis added). It added that the officers’ lack of
diligence and their failure to tell the traveler where they were taking the
luggage, or how or when it would be returned, were aggravating factors. Id. at
709—10.’
Compare the circumstances here. The plaintiffs themselves—not their
suitcases—were detained for a full 90 minutes. Critically, neither the
conditions of the detention nor the diligence of the officers mitigates that
critical duration factor; indeed, the surrounding circumstances are
aggravating.
For two thirds of that period the plaintiffs were held under conditions
indistinguishable from a forcible arrest. The police swarmed on the plaintiffs
with guns drawn. The plaintiffs were put down on the pavement, and they were
handcuffed. For a half hour, the officers questioned the plaintiffs, but nothing
about the answers was incriminating. Indeed, the plaintiffs reasonably
accounted for their presence and their actions. Summerville freely gave consent

A relevant comparison is United States u. Frost, 999 F2d 737, 741 (3d Cir.
1993), in which the Third Circuit distinguished Place based on other countervailing
facts. There, the agents approached the suspect without drawing weapons. The court
found that this was voluntan’ questioning, not a seizure, and found that he was told
he did not need to comply with the agents’ requests. At some point, however, he was
asked to come to the police office. The agents observed that the suspect had bulges in
his pockets and engaged in countersun’eillance; acted nervous; possessed a large
amount of cash; gave conflicting explanations; switched off his pager, thus erasing the
history; and denied knowledge of how his suitcase came to have a padlock. A
telephone check revealed a prior felony marijuana conviction. The agents told him that
he was free to go, but they were summoning a drug-sniffing dog. The suspect did
leave, but it took some time for the dog to arrive. In all, the luggage was in the agents’
custody for about 80 minutes before the dog showed a positive alert to the stash.
Perhaps the largest factor distinguishing Frost from Place was the agents’ diligence.
The agents had no advance warning of the suspect’s presence and they summoned the
drug-sniffing dog because the suspect refused to consent to a search of his luggage.
No drug sniffing unit was on duty, however. In the meantime, the agents gave Frost a
receipt with instructions about how to retrieve his luggage.
‘3

26

to search the vehicle; the search yielded nothing. The plaintiffs presented
receipts for the over-the-counter pharmaceutical items, and receipts from
Marshalls—a store in that very mall—for the newly purchased suitcases.
The plaintiffs remained handcuffed even after suspicions had been
reasonably dispelled. At that point detention, let alone handcuffing, even if it
had been justified initially, was no longer ‘justified by the circumstances’ that
authorize[d] an investigative detention in the first place.” Id.
The officers continued to hold the plaintiffs, however, while they cast
about for some sort of corroboration of what amounted to little more than an
investigative hunch. Despite having had the area under actual surveillance, the
officers decided to supplement their observations by reviewing the mall’s
surveillance camera recordings. For another half hour, they held the plaintiffs
in handcuffs while they went to the mall’s security office and reviewed the
security camera footage. The video merely confirmed what plaintiffs had said all
along—i.e., that they were loading receipted purchases into their car, in the
parking lot of a mall, and had nothing to do with Parker or any drug
transaction. Any officer, I suppose, could prolong a detention by saying that his
or her naked-eye observations needed to be checked against any surveillance
cameras that might in the area. But surely such a generic, self-executing
justification cannot be enough where those observations had reduced, not
augmented, the basis for detention.
It didn’t end there. The police, although they removed the handcuffs,
then held Mr. Sirleaf, and perhaps Mr. Summen’ille as well, for another half
hour while they looked for some entirely separate basis to hold Sirleaf. This
additional detention was necessary, they said, so they could get telephone
confirmation of Sirleaf’s immigration status and travel from Liberia. (He had
presented a Pennsylvania driver’s license as identification, but did not have his
passport or green card with him.)14 Bear in mind that—as the State concedes—
14
Defendants argue that the information the officers learned about Sirleafs
travels from Liberia spurred their additional investigation about his immigration
status. (Def. Br. at 25—30). Specifically, defendants say that because Sirleaf arrived

27

the suspicion of drug dealing had been entirely dispelled at this point. Mr.
Sirleafs status had reverted to that of any other shopper at the mall. The
zombie presence of the officers’ earlier suspicion of drug dealing cannot serve
as some sort of cam--over basis to start a new, immigration-related inquiry as
to a lawful resident who had presented a valid driver’s license and a legitimate
explanation for his conduct,

but

happened to have recently traveled from a

foreign country. These circumstances, I find, fall short of a sufficient basis to
extend the detention for yet another half hour.’5
At oral argument, the State segmented the detention, arguing that only
the first 60 minutes fall under Terry. The final 30 minutes, counsel stated,
were a separate inquiry into Mr. Sirleafs immigration status. I find the
distinction artificial. The subject was not free to go; that the officers were
pursuing different investigative avenues does not restart the clock.
The Supreme Court has disapproved this very practice of daisy-chaining
lines of inquiry to extend a reasonable-suspicion stop beyond its initial
justification. See, e.g., Rodriguez v. United States, 135 S. Ct. 1609, 1616, 191 L.
Ed. 2d 492 (2015); illinois v. Cabal/es, 543 U.S. 405, 125 5. Ct. 834 (2005) (a
reasonable-suspicion traffic stop “can become unlawful if it is prolonged
beyond the time reasonably required to complete th[e] mission” of issuing a
traffic ticket); Arizona v. Johnson, 555 U.S. 323, 333. 129 S. Ct. 781, 788
(2009). The police had not incidentally discovered a problem with Mr. Sirlears
immigration status; indeed, his statements that he has green-card status and

from Liberia the day before and “Liberia was suffering a wide-spread Ebola outbreak
and the detectives [found] over $1,000 in over-the-counter medications in Sirleafs
suitcase,” in combination with the fact that Sirleaf did not have any of his
international identification on him, created an independent basis for reasonable
suspicion to continue his detention. (Id. at 30). Purchasing medication is not a crime,
or indicative of criminal behavior. Nor is being without one’s green card, particularly
where, as here, the person presents a Pennsylvania driver’s license as identification.
There is no justification whatever, by the way, for continuing to hold
Summen’illc, a 29-year resident of the U.S. who presented his New Jersey driver’s
license as identification. As noted in the Facts section, supra, the point at which Mr.
Summen’ille was free to leave may present a question of fact.
15

28

his possession of a valid Pennsylvania driver’s license suggested the opposite.
The officers just wanted to hold him while they checked.
The police cited Mr. Sirleafs mention of Ebola, a disease then ravaging
areas of Africa, and his possession of prescription medicine which he had
purchased to assist the people there. These circumstances, say the police,
raised some sort of suspicion, or perhaps even suggested that Mr. Sirleaf might
have had the disease.’6 None of this rises above the level of speculation.
Even on the assumption that there was reasonable suspicion in the first
place, see supra, a reasonable jury could not find here that the officers acted
diligently “to verify or dispel their suspicions in a manner that did not exceed
the limits of an investigative detention.” Florida v. Royer, 460 U.S. 491, 502,
103 5. Ct. 1319, 1327 (1983). The intrusion was severe, duplicating the
conditions of an arrest. The officers’ suspicions were not confirmed in any way
by the plaintiffs’ answers to their questions, their cooperation with the request
for a search, the results of the search, or any other surrounding
circumstances.
Finally, on the question of diligence, this record does not suggest any
reason that this multi-officer team could not have checked the surveillance
video or verified Sirleals immigration status while Sirleaf and Summerville
were being questioned. As the State correctly points out, the test is not whether
the officers pursued the most efficient course; but the officers’ diligence in
minimizing the intrusion, under Place, is a key factor, and it is lacking here.
The officers’ decision to pursue these increasingly tenuous theories oneby-one suggests a detention in search of a basis. Terry does not permit this
kind of bootstrapping; a detention is not permitted merely for the purpose of
trying to develop the basis for a detention. Cf Leal, 235 F. App’x at 940 (3d Cir.
This is kind of like diagnosing someone with a heart attack because he made a
donation to the American Heart Association, but let that pass. There is no indication,
by the way, that the officers took any precautions to avoid contracting this fatal,
contagious disease from Mr. Sirleaf. Whether, as Mr. Sirleaf claims, the police accused
him of lying to the customs officials about his medical condition seems to be a
contested issue.
16

29

2007) (“It is clear that Terry does not allow police to arrest a suspect only to
hold him/her until police can determine if there was probable cause to make
an arrest in the first place.”). Such reasoning is unconstitutionally circular: “A
Terry stop was never intended to authorize a lengthy detention to complete an
investigation that is prompted by the articulable suspicion that is the condition
precedent of the intrusion allowed under Ternj.” Id.
For the reasons described above, the plaintiffs’ motion is denied as to the
issue of the initial reasonable-suspicion basis for the stop. It is granted,
however, as to the excessive scope of the stop. The defendants’ motion for
summary judgment on this claim is wholly denied.
B. Equal Protection/Selective Enforcement
I view the equal protection/selective enforcement claim differently. The
Fourteenth Amendment provides that no state shall “deny to any person within
its jurisdiction the equal protection of the laws.” U.S. Const., amend. XIV,

§

1.

“[Tihe Constitution prohibits selective enforcement of the law based on
considerations such as race.

.

.

.

[T]he constitutional basis for objecting to

intentionally discriminatory application of laws is the Equal Protection Clause.”
Whren v. United States, 517 U.S. 806, 813, 116 S. Ct. 1769, 1774 (1996).
Plaintiffs’ equal protection claim is essentially that they were detained on
October 8 primarily because they are or appear racially African or AfricanAmerican. To state an equal protection claim “in the racial profiling context, a
plaintiff must allege that law enforcement actions: ‘(1) had a discriminatory
effect and (2) were motivated by a discriminatory purpose.””7 See Alvin v.

This claim is distinct from the Fourth Amendment claim analyzed above.
Plaintiffs alleging claims for racially selective detentions in violation of the Fourteenth
Amendment are not required to show a lack of probable cause or reasonable
suspicion. See Nieves. 139 S. Ct. 1715, 1731—32 (2019) (Gorsuch, J., concurring in
part and dissenting in part) (citing Hedgepeth u. Washington Metropolitan Area Transit
Auth., 386 F. 3d 1148, 1156 (D.C. Cir. 2004) (“[S]imply because a practice passes
muster under the Fourth Amendment (arrest based on probable cause) does not mean
that unequal treatment with respect to that practice is consistent with equal
protection.”)); see also Gibson v. Superintendent of NJ Dep’t of Law & Pub. Safety-Div.
of State Police, 411 F.3d 427, 440 (3d Cir. 2005) (“the fact that there was no Fourth
Amendment violation does not mean that one was not discriminatorily selected for
17

30

Calabrese, 455 F. App’x 171, 177 (3d Cir. 2011) (quoting Bradley v. United
States, 299 F.3d 197, 205 (3d Cir. 2002)). To show discriminatory effect, a
plaintiff must prove that he or she “is a member of a protected class and that
[he or] she was treated differently from similarly situated individuals in an
unprotected class.” See id. (quoting Bradley, 299 F.3d at 206). In other words,
plaintiffs’ race “must have been a substantial factor” in the allegedly different
treatment that they received by the defendant officers. Hassan v. City of New
York, 804 F.3d 277, 294 (3d Cir. 2015).
Plaintiffs are clearly members of a protected racial class. See Tucker v.
Thomas Jefferson Univ., 484 F. App’x 710, 712 (3d Cir. 2012). Therefore, the
“sole inquiry under this prong of the analysis” is whether the plaintiffs were
treated “differently from similarly situated members of an unprotected class.”
Bradley, 299 F.3d at 206. Plaintiffs have not met their burden of establishing
that they were treated differently from similarly situated members of an
unprotected class.
Discriminatory effect “may be proven by naming similarly situated
members of an unprotected class who were not selected for the same
[treatment] or, in some cases, by submitting statistical evidence of bias.”
Calabrese, 455 F. Appx at 177 (quoting Bradley, 299 F.3d at 206). Here,
plaintiffs attempt to show discriminatory effect by contending that there were
white shoppers present in the parking lot at the time of the October 8 incident
who were not detained. (DE 117-2 1121; DE 120-2

¶

121).

Specifically, Sirleaf certifies that during the 10-minute period in which
the plaintiffs were loading items into their suitcases, there was a white shopper
parked next to their vehicle loading purchases into his vehicle in a similar
manner. (DE 117-8 at 40

¶

17). No white shoppers can be seen in the

surveillance video, which covers the critical time frame. The video establishes

enforcement of a law. Plaintiffs’ equal protection claims under the Fourteenth
Amendment require a wholly separate analysis from their claims under the Fourth
Amendment.” (quoting Carrasca v. Pomeroy, 313 F.3d 828, 836 (3d Cir.2002)fl.
31

that no white shoppers were loading items during the time frame of Parker’s
occupying the parking space next to the Mountaineer. (See Video at 1:20—4:00).
Critically, that was also the precise time frame in which Det. Gregory viewed
the parking lot, having arrived a few seconds after Parker. So even if the other
shoppers performed acts resembling those of plaintiffs—e.g., loading items into
a car—those other shoppers drove away in advance of the critical events. It
follows that any white shoppers, assuming they were present earlier, as
described by plaintiffs, were not similarly situated with respect to suspicions
that they acted as lookouts for Parker’s hand-to-hand transaction with the
Mountaineer driver.’8
On this factual record, a reasonable fact finder could not conclude that
the officers saw persons of other races near Parker, acting similarly, at the
critical time, but nevertheless singled out the plaintiffs based on their race. The
plaintiffs’ attestation that white shoppers were present is their only proffered
evidence of discriminatory conduct, and that is undercut by the surveillance
video. See Ference v. Twp. of Hamilton, 538 F. Supp. 2d 785, 789, 804 (D.N.J.
2008) (“[T]he Court will not draw inferences in Plaintiffs favor that are
inconsistent with the events depicted in the videotape of the incident.” (citing
Scott v. Harris, 550 U.S. 372, 380, 127 S. Ct. 1769, 1776 (2007)).
As to the second prong of their racial profiling claim, the plaintiffs have
not met their burden of showing that the defendants’ conduct was motivated by
a discriminatory purpose.’° For example, the plaintiffs did not hear the officers

The surveillance video and Sirleafs certification need not be interpreted as
inconsistent or mutually exclusive. The surveillance video covers a four-minute period,
whereas the plaintiffs certify that they were rearranging items in their suitcases for
approximately 10 minutes. Consequently, the white shopper that Sirleaf describes as
loading items into a car next to their vehicle could well have been present during the
first six minutes, when plaintiffs were initially rearranging their items, but prior to the
start of four-minute period captured by the surveillance video. The problem remains.
The four-minute period of video surveillance encompasses the alleged hand-to-hand
transaction for which the officers suspected that the plaintiffs acted as lookouts, and,
importantly, the window during which the officers sun’eifled the parking lot.
18

The Court need not determine whether the defendants acted with a
discriminatory purpose, having already held that the plaintiffs have not satisfied the
19

32

make any racial slurs, or otherwise evince any discriminatory animus. (DE
114-6 at 95). See Mody v. City of Hoboken, 959 F.2d 461, 467 (3d Cir. 1992)
(noting that a racial slur by police officer may be proof of racially motivated
police conduct).
It is easy to understand why the plaintiffs might have projected racial
prejudice onto conduct by the officers which, from plaintiffs’ point of view, was
simply inexplicable. And it is easy to see how the thought of racial
discrimination went through Sirleafs mind as he suffered the public indignity
of sitting handcuffed on the pavement in full view of other shoppers, whether
black or white. (DE 114-6 at 92, 94).
Still, although the evidence could support a finding of police
overzealousness, it is not sufficient to support the additional conclusion that
the officers’ conduct was racially motivated. Without any further evidence of
discriminatory purpose or racial singling-out, a reasonable fact finder could not
find in plaintiffs’ favor on their racial profiling claim.
Consequently, I will grant defendants’ summary judgment motion and
deny the plaintiffs’ motion on this equal protection claim.
C. Qualified Immunity
The remaining defendants are Det. Gregory and Det. Sgt. Ciano (see p.1
& n.1, suprc4, and the remaining claim is the Fourth Amendment claim that

the detention was not justified by reasonable suspicion, or alternatively that it
exceeded the scope of a reasonable-suspicion detention. As to those defendants
and claims, I consider whether the doctrine of qualified immunity shields them
from liability. As to Det. Gregory, the answer is no; as to Det. Sgt. Ciano,
however, I hold that the answer is yes.
“The doctrine of qualified immunity insulates government officials who
are performing discretionary functions ‘from liability for civil damages insofar

discriminatory effect element of their racial profiling claim. See Bradley u. United
States, 299 F.3d 197, 207 (3d Cir. 2002). Nonetheless, I rule on the alternative basis
that the plaintiffs have not satisfied the discriminatory purpose element.
33

as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” James z’. City of
Wilkes-Barre, 700 F.3d 675, 679 (3d Cir. 2012) (quoting Harlow u. Fitzgerald,
457 U.S. soo, 818, 102 S. Ct. 2727, 73 L.Ed.2d 396 (1982)). The U.S. Supreme

Court has established a two-part analysis that governs whether an official is
entitled to qualified immunity. See Saucier v. Katz 533 U.S. 194, 201, 121 S.
Ct. 2151 (2001). That two-part analysis inquires as to (1) whether the facts put
forward by the plaintiff show a violation of a constitutional right; and (2)
whether the right at issue was clearly established at the time of the alleged
misconduct. Id.; James, 700 F.3d at 679. Even if there are fact questions as to
the first, constitutional-violation prong, the court is required to decide the
second, i.e., whether the right was clearly established. See Spady v. Bethlehem
Area Sch. Dist., 800 F.3d 633, 638 (3d Cir. 2015) (“[Wjhile issues of fact may
preclude a definitive finding on the question of whether the plaintiff’s rights
have been violated, the court must nonetheless decide whether the right at
issue was clearly established.”).
When evaluating the first prong, a court must consider the facts in the
light most favorable to the plaintiffs. Couden v. Duffy, 446 F.3d 483, 492 (3d
Cir. 2006). I have already determined (a) that there are issues of fact precluding
summary judgment as to the initial, reasonable-suspicion basis for the stop; (b)
that the scope of this detention violated the plaintiffs’ Fourth Amendment
rights; and (c) that the detention did not violate principles of equal protection.
The second prong of qualified immunity asks whether the right was so
clearly established that the officer should have known that he or she was
committing a constitutional violation under the circumstances. While courts
are not to define clearly established law at a high level of generality, Thompson
v. Howard, 679 F. App’x 177, 182 (3d Cir. 2017), the precise factual
circumstances of a given case need not have been previously considered. Kelly
v. Borough of Carlisle, 622 F.3d 248, 259—60 (3d Cir. 2010) (“lOifficials can still
be on notice that their conduct violates established law even in novel factual

34

circumstances, as long as the law gave the defendant officer fair warning that
his [or her] conduct was unconstitutional.”) (internal citations and quotations
omitted).
Under the circumstances of this case, it is clearly established that
reasonable suspicion does not arise merely because a person is in physical
proximity to someone else who is suspected of engaging in potential criminal
activity. See Ybarra, 444 U.S. at 91; Sibron u. New York, 392 U.S. 40, 62, 88 S.
Ct. 1889, 1902, 20 L. Ed. 2d 917 (1968); United States z’. DiRe, 332 U.s. 581,
593, 68 5. Ct. 222, 228, 92 L. Ed. 210 (1948); Goodrich, 450 F.3d at 559—60
(3d Cir. 2006) (“It is well established that an officer cannot conduct a Terry stop
simply because criminal activity is afoot.” (internal citations and quotations
omitted)); United States a Mastin, No. 16-cr-542, 2018 WL 1005158, at *7
(M.D. Ala. Jan. 2, 2018), report and recommendation adopted, No. 16-CR-542,
2018 WL 1004484 (M.D. Ala. Feb. 21, 2018) (“Proximity to a wanted individual
is simply insufficient to meet the reasonable suspicion standard.” (collecting
cases)); United States v. McCray, 148 F. Supp. 2d 379, 388 (D. Del. 2001)
(“Observing two individuals who are possibly standing near a known loiterer,
even one described as being involved in narcotics activity, without more, merely
constitutes an ‘inchoate and unparticularized suspicion,’ and cannot justify a
Terry stop.”); Willowby a City of Philadelphia, 946 F. Supp. 369, 378 (ED. Pa.
1996) (“[A] reasonable officer would not conclude that it is constitutionally
permissible to search bystanders located on a porch of a home next door to a
house subject to a warranted search without something more than [the
assumption that everyone in close proximity to a drug raid has a weapon].”);
see also Matz v. Klotka, 769 F.3d 517, 523 (7th Cir. 2014) (stating in dicta that
“simply being in the presence of others who are themselves suspected of
criminal activity is insufficient standing alone to establish particularized
suspicion for a Terry stop and frisk.”).
I first consider Det. Gregory’s claim of qualified immunity. On one view of
the contested facts—i.e., that Det. Gregory did not observe any hand-to-hand

35

interaction with the Mountaineer driver—”the lack of a specific articulable
suspicion should have been apparent to a reasonable officer” in Det. Gregory’s
position. Couden, 446 F.3d at 496. For the reasons stated above, however, that
factual issue remains contested; it cannot be resolved in this context.
Still more apparent, however, was the need to release the plaintiffs fairly
promptly once any suspicion of drug dealing was dispelled.2° The Court in
United States v. Place, for example, stated that it had never approved a Teinj
detention as long as 90 minutes, held that “[t]he length of the detention of
respondent’s luggage alone preclude[dj the conclusion that the seizure was
reasonable,” and suggested that a 90-minute reasonable-suspicion detention
would require an extraordinary justification. See also illinois v. Caballes, 543

U.s. 405, 125 S. Ct. 834 (2005) (a reasonable-suspicion traffic stop “can
become unlawful if it is prolonged beyond the time reasonably required to
complete th[e] mission” of issuing a traffic ticket); Arizona v. Johnson, 555 U.S.
323, 333, 129 S. Ct. 781, 788 (2009) (the seizure remains lawful and the
officers may question the car’s occupants, but only “so long as [unrelatedj
inquiries do not measurably extend the duration of the stop.”).
Det. Gregory has not articulated much of a justification for continuing to
hold the plaintiffs beyond the desire to conduct further investigation. That, as a
matter of clear precedent, is not a sufficient basis to hold the plaintiffs in
handcuffs for an hour, and then to hold them for an additional 30 minutes
after that. Det. Gregory has not demonstrated that he is entitled to qualified

Cases such as Rodriguez u. United States, 135 S. Ct. 1609 (2015), and United
States u. Clark, 902 F.3d 404 (3d Cir. 2018), underscore the principle that a
reasonable-suspicion traffic stop cannot extend beyond the time required to fulfill its
purpose, i.e., to issue a ticket for a traffic violation, unless further evidence emerges.
These cases were decided after the October 2014 detention at issue in this case, so I
do not rely on them for qualified immunity purposes. I note, however, that they
represent a refinement, in the traffic-stop context, of a principle already wellestablished in the case law, i.e., that the reasonableness of the scope of a detention is
confined by its legitimate purpose. See, e.g., Rodriguez, 135 S. Ct. at 1614 (citing, e.g.,
Caballes and Johnson, supra in text.) Indeed, Terry itself required that the manner of
execution of the stop be “reasonably related in scope to the circumstances which
justified the interference in the first place.” Terry, 392 U.S. at 19—20).
20

36

immunity at this juncture. As to the initial basis for the stop, determination
would at best require resolution of contested factual issues. As to the duration
and intrusiveness of the stop, I find that even on this record, qualified
immunity is not appropriate.2’
I next consider Det. Sgt. Ciano’s claim of qualified immunity.
As background, I note that plaintiffs have conceded the principle that the
officers under the direction of Det. Gregory generally are not liable. Those
subordinate officers did not observe the critical facts on surveillance, but made
the arrest because they were told to do so by Det. Gregory. (Tr. 46:23—47:24,
48:l0_23)22

See Curley v. KIem, 298 Fad 271, 278 (3d Cir. 2002) (noting “the reality that
factual disputes often need to be resolved before determining whether the defendant’s
conduct violated a clearly established constitutional right.”); Grant, 98 F.3d at 122
(noting tension between the U.S. Supreme Court’s “insistence that the immunity
defense be decided as a matter of law” and “the reality.., that factual issues must
frequently be resolved in order to determine whether the defendant violated clearly
established federal law”); Castellani v. City ofAt!. City, No. 13-5848, 2017 WL
3112820, at *7 (D.N.J. July 21, 2017) (“Although the question of qualified immunity is
generally a question of law, a genuine issue of material fact will preclude summary
judgment on qualified immunity.” (internal citations and quotations omitted)); Mawson
u. Pittston Police Dep’t, 145 F. Supp. 3d 363, 372 (M.D. Pa. 2015) (“Should factual
disputes that are material to the qualified immunity analysis remain at the summary
judgment stage, then Third Circuit precedent requires that the questions of fact go to
a jury.”) (collecting cases).
21

The defendants have not argued in particular that Det. Gregory made a
reasonable mistake of fact that led him to believe that Parker engaged in a drug
transaction with plaintiffs. See Couden, 446 F.3d at 502 (Weis, J., dissenting) (noting
the “class of qualified immunity cases... where the issue is not whether there was a
misunderstanding about the law, but rather whether the officer made a reasonable
mistake of fact in carrying out his [or her] duties.”). Rather, defendants argue that Det.
Gregory witnessed the interaction between Parker and the person in the Mountaineer
before detaining the plaintiffs and that this interaction was part of his justification for
ordering the plaintiffs’ detention. (See Def. Br. at 4 1—45 (cursorily citing mistake of fact
doctrine but not further engaging in its application nor acknowledging what mistake, if
any, was made and by whom); DE 120 at 6, 11; DE 121 at 8—19). Therefore, I do not
address this “class of qualified immunity cases” regarding a reasonable mistake of
fact. Canales v. Twp. of Toms Riuer, No. 11-3159, 2014 WL 683991, at *16 (D.N.J. Feb.
20, 2014) (“The defendant government official bears the burden of establishing the
right to qualified immunity.”).
Defendants Gauthier, Harrison, Ciano, Bobal, Kelshaw, Joaquin, and
Chariamonte argued that they ought to be granted qualified immunity because they

22

37

reasonably relied on Det. Gregory’s observations and obeyed his order to detain the
plaintiffs. (See DE 121 at 6—8). It is undisputed that it was Det. Gregory who made the
determination to detain the plaintiffs and directed the other officers to do so. The
question, then, is not strictly one of whether reasonable suspicion existed in the
abstract; as to these officers, the issue is whether they violated a clearly established
right in relying upon Det. Gregory’s observations and acting on his orders to detain the
plaintiffs.
There is generally a presumption that police officers may reasonably rely upon
the investigations of other law enforcement officials when requested to aid or assist in
a seizure or arrest. See Whiteley v. Warden, Wyo. State Penitentiary, 401 U.S. 560,
568, 91 5. Ct. 1031, 1037 (1971) (“Certainly police officers called upon to aid other
officers in executing arrest warrants are entitled to assume that the officers requesting
aid offered the magistrate the information requisite to support an independent judicial
assessment of probable cause.”); United States v. Yusuf 461 F.3d 374, 385 (3d Cir.
2006) (“[Ijnformation received from other law enforcement officials during the course of
an investigation is generally presumed to be reliable.”). A contrary rule would require
that a trooper, in the paramilitary command structure of the State Police, pause and
interview his or her superior before obeying an order to give chase.
Accordingly, it is well established that “the actions of a police officer acting in
reliance on what proves to be the flawed conclusions of a fellow police officer may be
reasonable nonetheless and thus protected by the doctrine of qualified immunity.”
Rogers v. Powell, 120 F.3d 446, 455 (3d Cir. 1997). The law in this Circuit is clear:
“where a police officer makes an arrest on the basis of oral statements by fellow
officers, an officer will be entitled to qualified immunity from liability in a civil rights
suit for unlawful arrest provided it was objectively reasonable for him [or herj to
believe, on the basis of the statements, that probable cause for the arrest existed.” Id.;
see also Groman, 47 F.3d at 635 n. 10; Capone u. Marinelli, 868 F.2d 102, 104 (3d Cir.
1989). The same qualified immunity analysis of probable cause would apply to
questions of reasonable suspicion in the Terry stop context.
In this case, the plaintiffs’ concession was sound. It was objectively reasonable
for the defendant officers to aid Det. Gregory in detaining the plaintiffs. The officers
were jointly engaging in a surveillance operation of Parker, a person suspected of
distributing a large quantity of narcotics who was on parole for murder and suspected
of carrying a gun. The other officers did not themselves witness what transpired
between Parker and the person in the Mountaineer. They knew that Det. Gregory had
been observing the events, however. Det. Gregory was leading the surveillance
operation and made the determination to detain the plaintiffs and Parker. The officers
had every reason to trust that his orders were based on what he had witnessed
personally. In a quickly unfolding scene, with the prospect of at least one potentially
armed suspect departing in his vehicle, it was reasonable for the other officers to
quickly and unquestioningly respond to Det. Gregory’s call for assistance. See Rogers,
120 F.3d at 455. The record also contains no indication that any of the defendants
aside from Det. Gregory made any of the subsequent decisions to hold the plaintiffs
pending further investigation.

38

Plaintiffs state that Det. Sgt. Ciano, however, stands on a different
footing, for the following reason:
[MR. GRAVES, Counsel for plaintiff:j But with respect to, you
know, Sergeant Ciano, he may have had some indication that the
plaintiffs were not suspicious and they had not been doing
anything suspicious.
And Ciano may have been able to have the opportunity to
inform Detective Gregory that we don’t have a problem with the
plaintiffs; the problem is with Parker, especially if Gregory claims
that he actually saw the hand-to-hand transaction.
So Ciano likely can be pulled in to this violation along with
Defendant Gregory.
(Tr. 47:25—48:12)
I think that Det. Sgt. Ciano, no less than the others, was entitled, and
indeed obligated, to rely on and obey Det. Gregory’s order to arrest and detain
the plaintiffs. Ciano did not know or observe—and he knew that he did not
know or observe—what Gregory saw on surveillance. Like the other officers,
Ciano was justified in trusting that Det. Gregory’s orders were validly based on
his personal observations. No less than the others, Ciano knew the events were
unfolding quickly, with Parker and potentially the other suspects poised to
leave in their vehicles. It would not have been clear to a reasonable officer that
furnishing rapid, unquestioning assistance would violate the constitution. See
Rogers, 120 F.3d at 455.
The distinction drawn by plaintiffs is seemingly based on Det. Sgt.
Ciano’s candid, after-the-fact testimony that he did not observe the hand-tohand transaction with the Mountaineer driver. Neither did the other officers,
however; all were relying on Gregory. I add that Det. Sgt. Ciano did not make
the decisions to detain or continue to hold the plaintiffs.
Accordingly, I will deny defendants’ motion for summary judgment on the
issue of qualified immunity as to Det. Gregory, but grant it as to Det. Sgt.
Ciano.

39

IV.

CONCLUSION

For the reasons stated in this Opinion, I will deny in part and grant in
part defendants’ motion for summary judgment (DE 114) and plaintiffs’ cross
motion for summary judgment (DE 117), as follows:
1(a). Summary judgment is denied to both sides on the issue of whether
there was a reasonable-suspicion basis for the initial detention of the plaintiffs.
1(b). Summary judgment is denied to both sides on the issue of Det.
Gregory’s qualified immunity for the initial detention of the plaintiffs, but
granted in favor of Det. Sgt. Ciano on that qualified immunity issue.
2(a). Summary judgment is granted in favor of the plaintiffs on the issue
of whether the detention exceeded the length and scope of a permissible Terry
stop.
2(b). Summary judgment is granted in favor of the plaintiffs denying Det.
Gregory qualified immunity on the issue of whether the detention exceeded the
length and scope of a permissible Temj stop, but granted in favor of Det.

Sgt.

Ciano on that qualified immunity issue.
3. Summary judgment is granted in favor of all defendants and against
plaintiffs on the claim of racially discriminatory enforcement of the laws.
4. All claims against Col. Fuentes are dismissed with prejudice.
5. Within five days, counsel shall jointly contact the chambers of
Magistrate Judge Hammer and arrange a conference to discuss settlement of
the issues remaining in the case or steps required to ready the issues for trial.
An appropriate Order follows.
Dated: August 29, 2019

H N. KEVIN M6NULTY,

40

.

.D.