KOHLHAAS v. STATE OF NEW JERSEY et al
OPINION filed. Signed by Judge Anne E. Thompson on 10/20/2017. (mmh)
NOT :fOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civ. No. 16-1564
STATE OF NEW JERSEY, STATE
POLICE DETECTIVE JOSEPH F.
SEMBLER, DEPUTY ATTORNEY
GENERAL MARIE MCGOVERN, and
DEPUTY ATTORNEY GENERAL "JOHN
OCT 2··3 2017
WILLIAM T. WALSH
Tltj.s matter comes before the Court upon Defendants' Motion for Summary Judgment.
(ECF No. 38.) Plaintiff Leigh Kohlhaas ("Plaintiff') opposes. (ECF No. 42.) The Court has
decided the Motion based upon the written submissions of the parties pursuant to Federal Rule of
Civil Procedure 78(b). For the reasons stated herein, Defendants' Motion for Summary
Judgment will be granted in part and denied in part.
This case arises out of Plaintiff's wrongful arrest claim tied to a criminal conspiracy
investigation, brought against Defendants Police Detective Detective Joseph Sembler
("Defendant Sembler"), Deputy Attorney General Marie McGovern ("Defendant McGovern"),
and Fonner Deputy Attorney General Kenneth Sharpe ("Defendant Sharpe"}, (collectively
The undisputed facts are as follows. On May 7, 2014 Plaintiff was arrested at JFK
Airport pursuant to an arrest warrant obtained by Defendants on April 30, 2014. (Defs.'
Statement of Material Facts [hereinafter Defs.' SMF] ifif 28-29, 31, ECF No. 38-2.) This arrest
warrant provided one statement with respect to Plaintiff: "I have identified Leigh Kohlhaas' s
telephone number used in text message communication with Lewis Ageyman regarding
fraudulent credit card orders." (Id.
The warrant was part of an extensive online credit card theft investigation, Operation
Parcel Post, overseen by Detective Sembler. (Id.
Operation Parcel Post suspects were
illegally obtaining credit card information and making fraudulent online purchases. (Id.
The investigation led Defendant Sembler to Plaintiff by way of the search and arrest of a suspect
named Lewis Ageyman ("Ageyman"}, who was linked to the fraudulent purchases through
subpoenas of the websites on which the purchases were made. (Id.
verified Ageyman's connection with Operation Parcel Post. (Id.
An assessment of
Ageyman' s phone produced two forensic reports-the Cellebrite report and Katana Latem 3
if 16; Defs.' Resp. to Pl.' s Suppl. Statement of Material Facts [hereinafter Defs.'
Resp. to Pl.'s SSMF] if 21, ECF No. 49.) Relying on the Katana Lantern 3 report, Defendants
found communications regarding the fraud with a particular number ("the 0402 number").
(Defs.' SMF if 17.) Defendants subpoenaed Verizon and Cellco records of subscriber
information for the 0402 number from May 1, 2013 to June 1, 2013. (Id.
ifif 18-19, 21.)
According to the subpoena, this number belonged to J.Crew, Inc. since February 2013. (Id.
ifif 24, 26.)
Defendants learned, through a further subpoena of and discussions with J.Crew, that
Plaintiff held the 0402 number via company iPad since May 2013. (Id.
McGovem helped Defendant Sembler prepare the subpoena to J.Crew. (Id. 180.) Defendant
Sembler then prepared the affidavit for the arrest warrant pursuant to this information, which
both Defendants McGovern and Sharpe reviewed and approved. (Id. 129.) The warrant was
signed by a Superior Court Judge on April 30, 2014; Plaintiff was then arrested at the airport,
held in Ocean County jail, and released on May 12, 2014 (Id.,, 31-32, 36-37.)
Also stemming from the information on Ageyman's phone, Defendants arrested Eiven
Jordan on May 27, 2014. (Id. ,, 39-40.) Defendants searched Eiven Jordan's phones and
discovered that one of his devices was using the 0402 number to send messages via iMessage
over WiFi networks, even though he had surrendered the number when his Verizon contract
mi 41, 45.)
In August 2014, Defendant Sembler prepared a search warrant, approved
by Defendant Sharpe, to obtain Plaintiffs iPad from J.Crew. (Id. 1150-51, 53.) After the iPad
was obtained in August, Defendants could not access it due to password protection, and did not
unlock the iPad until October 22, 2014. (Id. ,, 54, 56, 64.) When Defendants gained access
they did not find any of the incriminating text messages to Ageyman, even though the iPad
utilized the 0402 number. (Id.,, 65-66.) Subsequently, the charges against Plaintiff were
dropped in early November 2014. (Id.
On February 1, 2016, Plaintiff filed the present litigation in the New Jersey Superior
Court, Law Division, Ocean County against the State of New Jersey, Detective Joseph Sembler,
and Deputy Attorney General Marie McGovern. (See Defs.' Notice Removal, E:x:. 1, ECF No. 1-
1.) On March 21, 2016 Defendants collectively filed notice of removal in this Court pursuant to
28 U.S.C § 1441(b), (c), and§ 1443. (Defs.' Notice of Removal if 4, ECF No. 1.) Defendant
State ofNew Jersey was dismissed as a party on May 5, 2016. (ECF No. 7.) Plaintiff served
amended complaints on June 22, 2016 (Am. Compl., ECF No. 10) and again oil March 22, 2017
against Defendants Detective Joseph Sembler, Deputy Attorney General Marie McGovern, and
Former Deputy Attorney General Kenneth Sharpe (Second Am. Compl., ECF No. 24-1 ).
Plaintiff pled causes of action based on: (I) violations of 42 U.S.C. § 1983, (II) failure to
intervene, and (Ill) malicious prosecution. (Id.) The parties engaged in discovery, and on
August 18, 2017, Defendants moved for summary judgment. (ECF No. 38.) Plaintiff opposed
and Defendants replied. (ECF Nos. 42, 48.) This Motion is presently before the Court.
Summary judgment shall 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 oflaw." Fed. R. Civ. P.
56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A dispute is "genuine" if it could lead
a "reasonable jury [to] return a verdict for the nonmoving party." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A fact is "material" if it will "affect the outcome of the suit
under the governing law." Id. When deciding the existence of a genuine dispute of material fact,
a court's role is not to weigh the evidence; all reasonable "inferences, doubts, and issues of
credibility should be resolved against the moving party." Meyer v. Riegel Prods. Corp., 720
F.2d 303, 307 n.2 (3d Cir. 1983). In resolving a motion for summary judgment, a district court
considers the facts drawn from "the pleadings, the discovery and disclosure materials, and any
affidavits." Curley v. Klem, 298 F.3d 271, 276-77 (3d Cir. 2002) (internal quotations omitted).
The court must determine ''whether the evidence presents a sufficient disagreement to require
submission to ajury or whether it is so one-sided that one party must prevail as a matter of law."
Anderson v. Liberty Lobby, 477 U.S. 242, 251-52 (1986). The Court must grant summary
judgment against any party ''who fails to make a showing sufficient 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." Celotex, 477 U.S. at 322.
Defendants' Due Process Argument
Defendants first argue that the Fourth Amendment, not the Fourteenth, is the appropriate
vehicle for Plaintiffs claims, and therefore, his due process claim must be dismissed. (Defs.'
Mot. Summ. J. at 3, ECF No. 38-1.) Plaintiff does not address this argument in his opposition.
"The Supreme Court has held that when government behavior is governed by specific
constitutional amendment, due process analysis is inappropriate." Berg v. Cty. ofAllegheny, 219
F.3d 261, 268 (3d Cir. 2000). Plaintiff pleads violations of the Fourteenth Amendment and his
due process rights within the damages and § 1983 cause of action sections of his Complaint.
(Second Am. Compl. mf 32, 35.) The facts of this case are most appropriately described as a
violation of the Fourth Amendment through unlawful seizure and arrest without probable cause
and malicious prosecution. (Pl.'s Opp'n to Defs.' Mot. Summ. J. at 3, ECF No. 42); see Manuel
v. City ofJoliet, 127 S. Ct. 911, 919 (2017). Therefore, because Plaintiff's "due process claim is
predicated on damages resulting from an unconstitutional seizure' ... the claim is properly
considered as an alleged violation of the Fourth Amendment, and 'due process is inappropriate."'
McRae v. City ofNutley, 2015 WL 6524629, at *4 (D.N.J. Oct. 28, 2015) (citing Washington v.
Hanshaw, 552 F. App'x 169, 173 (3d Cir. 2014); Berg, 219 F.3d at 268).
Defendants' Absolute Immunity Argument
Defendants McGovern and Sharpe argue that they are entitled to absolute immunity for
their conduct related to the arrest warrant and strategic decisions made with respect to Plaintiffs
prosecution. (Defs.' Mot. Summ. J. at 6-10.) The Third Circuit assigns the "heavy burden" of
establishing absolute immunity to the prosecutor. Light v. Haws, 472 F.3d 74, 80-81 (3d Cir.
2007). Absolute immunity is recognized "quite sparing[ly]" in the realm of§ 1983 liability.
Odd v. Malone, 538 F.3d 202, 207 (3d Cir. 2008)
Prosecutors enjoy absolute immunity from § 1983 claims stemming from actions
"intimately associated with the judicial phase of the criminal process," Imbler v. Pachtman, 424
U.S. 409, 430 (1976), or "performed in a judicial or quasi-judicial capacity," Odd, 538 F.3d at
208. Actions "in an investigative or administrative capacity," however, receive qualified
immunity. Kulwicki v. Dawson, 969 F.2d 1454, 1463 (3d Cir. 1992) (citing Imbler, 424 U.S. at
430; Burns v. Reed, 500 U.S. 478 (1991)). The Third Circuit rejects a bright-line rule relying on
the timing or location of the prosecutor's conduct. Odd, 538 F.3d at 210. Rather, the key
question is whether the prosecutor "was functioning as the state's 'advocate' while engaging in
the alleged conduct that gives rise to the constitutional violation." Yarris v. Cty. ofDel., 465
F.3d 129, 136 (3d Cir. 2006) (internal citation omitted). In such situations, "supervisory
prosecutors are equally entitled to absolute immunity as those prosecutors conducting the
proceedings." Burke v. Monmouth Cty. Prosecutor's Office, 2011WL1485470, at *4 (D.N.J.
Apr. 19, 2011) (citing Van de Kamp v. Goldstein, 555 U.S. 335, 861-64 (2009)).
A. Absolute Immunity for Conduct Related to the Arrest Warrant
In support of immunity, Defendants rely predominately on Kalina v. Fletcher, 522 U.S.
118 (1997), for the assertion that their conduct in preparing and submitting the arrest warrant is
protected by absolute immunity. In Kalina the prosecutor received absolute immunity for
drafting a certification and filing three charging documents simultaneously, including a motion
for arrest warrant and an information charging the respondent with burglary. 522 U.S. at 121
(citing Malley v. Briggs, 475 U.S. 335 (1986) (prosecutor enjoyed absolute immunity for filing
an indictment)). The Third Circuit has embraced the Kalina holding for the proposition that
prosecutors enjoy absolute immunity when deciding whether to initiate prosecution because the
"arrest of a criminal defendant and the filing of charges are at the core of the prosecutorial
function." Munchinski v. Solomon, 618 F. App'x 150, 154 (3d Cir. 2015); LeBlanc v. Stedman,
483 F. App'x 666, 669 (3d Cir. 2012) (dismissing on absolute immunity grounds when plaintiff's
claims alleged that the district attorneys failed to verify evidence on which charges against him
were brought); Hyatt v. Cty. ofPassaic, 340 F. App'x 833, 837 (3d Cir. 2009) (extending
prosecutorial immunity to defendants who charged and indicted plaintiff).
Defendants McGovern and Sharpe are immune for the filing of this "complaint-warrant"
that authorized the arrest of Plaintiff for a number of state crimes. (Defs.' Mot. Summ. J ., Ex. A,
ECF No. -38-4.) The Court notes that Operation Parcel Post was an ongoing and extensive
investigation where over twenty individuals were arrested (Defs.' SMF ~~ 1-4), and no criminal
proceedings against Plaintiff commenced upon his arrest. (Id.
mf 37, 50-57.)
The act of
submitting this type of criminal complaint for arrest, however, is squarely within the
prosecutorial functions that receive immunity within this Circuit. See Munchins/d, 618 F. App 'x
at 154. It is undisputed that Defendant McGovern reviewed the affidavit for Plaintiff's arrest
warrant, making an initial determination of legal sufficiency and probable cause, and that
Defendant Sharpe later approved this document. (Defs.' SMF ~~ 29, 81-83.) Such
determinations of probable cause in this context are also prosecutorial functions. Kalina, 522
U.S. at 130.
Absolute immunity is also appropriate here for Defendant Sharpe because he was in
direct supervision of Defendants McGovern and Sembler. It is undisputed that his conduct
related to the warrant was a supervisory function. (Defs.' SMF ,, 76-78.) Like in Van de
Kamp, Defendant McGovern's review and approval of Defendant Sembler' s arrest warrant and
charging documents was "directly connected with the prosecutor's basic trial advocacy duties."
555 U.S. at 346. Therefore, Defendant Sharpe receives immunity for his supervision of these
prosecutorial functions. The Court finds that Defendants Sharpe and McGovern are absolutely
immune from all of Plaintiff's claims.
B. Absolute Immunity for Strategic Decisions
. Defendants also argue that their strategic decisions to withhold evidence post-arrest or to
not negotiate with Plaintiff's lawyer, are entitled to absolute immunity. (Defs.' Mot. Summ. J. at
9-10.) Plaintiff's amended complaint does not reference this particular conduct, only alluding to
the fact that he had to prove his innocence over a six month period from his arrest to when
charges were dropped. (Second Am. Compl. , 26.) The Court construes this argument to be in
reference to Plaintiff's malicious prosecution claim for the continuation of charges against
Traditionally, prosecutors enjoy absolute immunity at common law for malicious
prosecution Claims. Imbler, 424 U.S. at 441; Odd, 538 F.3d at 216. While Plaintiff has not pied
the facts Defendants allege, he concedes to their truth in his response to Defendants' statement of
material facts and by failing to address them in his pleadings or supplemental statement of facts.
(Defs.' SMF ,, 9~95; Pl.'s Resp. to Defs.' SMF ,, 9~95, ECF No. 45.) Thus, there is no
dispute of material facts on these issues. Defendants' conduct, though tied to the Operation
Parcel Post investigation, is born out of Defendants' role as advocates of the state. The Court
finds that Defendants McGovern and Sharpe are entitled to absolute immunity on Plaintiff's
malicious prosecution claim.
Qualified Immunity for Defendant Sembler
Defendants also argue that Defendant Sembler is entitled to qualified immunity because
he did not violate the Fourth Amendment in securing Plaintiff's arrest warrant. (Defs.' Mot.
Summ. J. at 11.) When engaged in discretionary functions, "qualified immunity shields
.. government officials from civil liability as long 'as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have known."'
McGreevy v. Stroup, 413 F.3d 359, 364 (3d Cir. 2005) (quoting Harlow v. Fitzgerald, 451 U.S.
800, 818 (1982)).
Taking a two-pronged approach, a court must determine what right was violated and
whether the right specifically defined was clearly established such that "every reasonable official
would have understood that, despite the issuance of an arrest warrant, there was no probable
cause." Fiore v. City ofBethlehem, 510 F. App'x 215, 222 (3d Cir. 2013) (citing Reichle v.
Howards, 132 S. Ct. 2088, 2093 (2012); Goodwin v. Conway, 836 F.3d 321, 327 (3d Cir. 2016).
If both of these criteria are met, the next question is "whether the facts on the record are such that
a jury could conclude that the right was violated." Wilson v. Russo, 212 F.3d 781, 782 (3d Cir.
A. Violation of a Clearly Established Constitutional Right
Plaintiff has pied violations, among others, of his Fourth Amendment freedom from
arrest without probable cause. (Second Am. Compl. if 35; Pl.'s Opp'n to Defs.' Mot. Summ. J. at
8.) The alleged conduct-Plaintiff's arrest at JFK Airport pursuant to an arrest warrant based on
the use of his telephone number in text messages, subjecting Plaintiff to unlawful detention and
false imprisonment (Defs.' SMF ifif 30-32)-suggests a violation of Plaintiff's Fourth
Amendment right not to be unreasonably seized, satisfying the first step. See Groman v. Twp. of
Manalapan, 47 F.3d 628, 636 (3d Cir. 1995) ("A false imprisonment claim under§ 1983 which
is based on an arrest made without probable cause is grounded in the Fourth Amendment's
guarantee against unreasonable seizures."); see also Schneyder v. Smith, 653 F.3d 313, 321-22
(3d Cir. 2011 ). Plaintiff also alleges failure to intervene and malicious prosecution, which are
predicated on the alleged violations of his Fourth Amendment right to be free from unreasonable
seizure. See Torres v. McLaughlin, 163 F.3d 169, 174 (3d Cir. 1998) (finding a malicious
prosecution § 1983 claim may be brought for any constitutional violation, and when based on the
Fourth Amendment, plaintiff must demonstrate deprivation of liberty).
Turning to the second step, the Court must construe this right "in the specific context of
the case, not as a broad general proposition." Brosseau v. Haugen, 543 U.S. 194, 198 (2004)
(citing Saucier v. Katz, 533 U.S. 194, 201 (2001), receded by Pearson v. Callahan, 553 U.S.
223, 236 (2009)). Defendants present the right at issue as one of first impression related to the
use of a single telephone number by two individuals. (Defs.' Mot. Summ. J. at 21.) They claim
that there is no case law providing Defendants with notice that "relying merely upon the
information provided [by] Verizon and J.Crew to identify a co-conspirator violated [Plaintiff's]
rights under the Fourth Amendment." (Defs.' Reply to Pl.'s Opp'n at 9, ECF No. 48.) Plaintiff
pleads a general right beyond dispute: arresting an individual without probable cause violates a
clearly established right. See, e.g., Orsatti v. N.J. State Police, 71 F .3d 480, 483 (3d Cir. 1995).
(Defs.' Mot. Summ. J. at 12 ("A finding of probable cause is a complete defense to all of these
claims.").) Framed more specifically, Plaintiff argues that "the warrant application 'is so lacking
in indicia of probable cause as to render official belief in its existence [entirely] unreasonable."
(Pl.'s Opp'n to Defs.' Mot. Summ. J. at 9 (citing United States v. Leon, 475 US 335, 341 (1986)
(alteration to reflect original quote in Leon).)
This case does not raise a novel standard or right as Defendants contend, but rather a
novel application of an existing right. Relying on the Leon standard, there is strong federal case
law, including within this Circuit, that the single sentence in the warrant here may have been ''the
sort of skeletal affidavit that is too weak to support the shield of qualified immunity." Fiore, 510
F. App'x at 221 (citing United States v. Pavulak, 700 F.3d 651, 664 (3d Cir. 2012) (collecting
cases of "bare bones" affidavits)); see also Messerschmidt v. Millender, 565 U.S. 353, 547
(2012); Trainer v. Anderson, 663 F. App'x 241, 243 (3d Cir. 2016) (finding arrest warrant not
bare bones when based on identification of plaintiff, victim's description, and vehicle
association). Although Defendants took various investigative steps and served multiple
subpoenas leading them to this single sentence, on its face, the affidavit is problematic.
Modem technology creates the ability to communicate through many applications on
multiple devices over WiFi networks-all with one corresponding phone number. In light of
these changes, a telephone number is not necessarily a unique personal identifier or a guarantee
of one individual's identity. Given the unique facts of this case, the application of qualified
immunity at this threshold question does not serve Plaintiffs public interest in recovering
damages for the potential and alleged violation of his rights. Orsatti, 71 F.3d at 483.
B. Probable Cause for Plaintiff's Arrest Warrant
With the initial two-step inquiry satisfied, the Court next turns to whether the right at
issue was violated: whether Defendant Sembler' s arrest warrant was supported by probable
cause. "When law enforcement officers 'reasonably but mistakenly conclude that probable cause
to make an arrest is present,' qualified immunity forecloses second-guessing of their
determination by civil courts." Peterson v. Bernardi, 719 F. Supp. 2d 419, 429 (D.N.J. 2010)
(quoting Orsatti, F.3d at 483). In order to succeed in a§ 1983 action, the plaintiff must prove:
"(1) that the police officer 'knowingly and deliberately, or with a reckless disregard for the truth,
made false statements or omissions that create a falsehood in applying for a warrant;' and (2)
that 'such statements or omissions are material, or necessary, to the finding of probable cause."'
Wilson, 212 F .3d at 787-87 (internal citations omitted).
1. Omissions and False Statements
Omissions ate "facts known or suppressed," Boyd v. Hudson Cty. Prosecutor's Office,
2014 WL 47772, at *8 (D.N.J. Jan. 6, 2014), and are made with reckless disregard when a
reasonable person would know that a judge would find such facts to be important in determining
probable cause, Reedy v. Evanson, 615 F.3d 197, 211 (3d Cir. 2010). Defendants claim that the
singular statement and fact put forth on behalf of the arrest warrant was true and there were no
relevant omissions. (Defs.' Mot. Summ. J. at 13-14.) Plaintiff, however, claims that the
affidavit mischaracterized the facts because it was not Plaintiff's telephone number that was
communicating, and even so Defendants omitted relevant facts that negate finding probable
cause on the basis of the 0402 number alone. (Pl.'s Opp'n to Defs.' Mot. Summ. J. at 11-13.)
Plaintiff points to four specific facts that he alleges to be omissions:
( 1) [T]hat the incriminating conversations began before Leigh Kohlhaas was
assigned the relevant number and therefore could not have been made by
him ... (2) that the co-conspirator in question was identified as "E" ... (3) that
the substance of the communications, in addition to indicating involvement in the
conspiracy, detail other substantive facts tending to identify the true conspirator
that the Defendants ignored rather than investigated ... and (4) that all of the
communications with "E" in January through May of 2013 were made only over
internet-based Applications and not through any cellular network.
(Pl.'s Opp'n to Defs.' Mot. Summ. J at 12-13 (internal citations omitted).)
First, it is undisputed that the 0402 number was assigned to Plaintiff by J.Crew beginning
in May 2013 (Defs.' SMF ifif 23-24), and that incriminating text messages were sent between
May and June 2013, while Plaintiff was in possession of the number (id.~ 20; Pl.'s Resp. to
Defs.' SMF 120 (disputed by Plaintiff only insofar as this period does not represent the full
scope of incriminating messages)). It is further undisputed that incriminating conversations took
place as early as January 28, 2013 between the 0402 number and Ageyman. (Pl.'s SSMF, 21,
ECF No. 45; Defs.' Resp. to Pl.'s SSMF 121.) The parties, however, expressly dispute whether
Defendants had knowledge of the incriminating text messages sent prior to May 2013. (Defs.'
Reply to Pl.'s Opp'n at 3--4.) Cf. Dempsey v. Bucknell Univ., 834 F.3d 457, 471 (3d Cir. 2016)
("[T]he officer must have knowledge of the information alleged to have been recklessly
omitted."). Defendants claim that while they had forensic reports of Ageyman' s phone showing
text conversations with the 0402 number prior to May 2013, they did not read the entirety of
those reports to have actual knowledge. (Defs.' Reply to Pl.'s Opp'n at 3.) It is not for the Court
to expect perfect investigatory tactics upon review of a probable cause determination, Boyd,
2014 WL. 47772, at *8 (finding no reckless omissions when officers' affidavit tracked the facts
stipulated to in the lawsuit and did not hide exculpatory fact that a cellphone was registered to a
different user), nor to "demand that officers relate the entire history of events leading up to a
warrant application." Wilson, 212 F.3d at 787. Nonetheless, this information was within
Defendant Sembler' s arsenal of evidence, and the existence and content of these messages is
relevant to whether it was reasonable to believe that the individual sending the messages was
Next, it is undisputed that Defendant Sembler knew that the person with the 0402 number
was referred to as ''E" in Ageyman's phone. (Defs.' Resp. to Pl.'s SSMF 116.) It is further
undisputed that Defendant Sembler made no follow-up investigations to ascertain or corroborate
the identity of the co-conspirators from Ageyman' s texts. (Id. 1 19.) Defendants contend that
any alleged omissions were not made intentionally or with reckless disregard for the truth
because Defendant Sembler had no reason to doubt the accuracy of the information obtained via
subpoena through verified channels-until Biven Jordan was arrested and found with a device
utilizing the same phone number. (Defs.' Mot. SUinm. J. at 16-17.) Instead they argue that this
information was immaterial. (Defs.' Reply to Pl.'s Opp'n at 4-5.) On the contrary, the
information Plaintiff points to may "have altered the outcome of the magistrate judge's probable
cause determination." Shaffer v. City ofPittsburgh, 650 F. App'x 11, 115 (3d Cir. 2016).
Although the contact label used by criminals is not necessarily reliable-as Defendants
contend-considering these facts in totality and construing them in Plaintifrs favor, the Court
finds it to be relevant to the determination of probable cause.
Finally, it is undisputed that the messages to Ageyman were sent via iMessage over WiFi,
not via SMS over cellular networks. (See Defs.' SMF ~ 45; Pl.'s Opp'n to Defs.'s Mot. Summ. J
at 11-12.) Defendants received two forensic analysis reports from Ageyman's phone, the
Cellebrite Report and Katana Latem 3 report. (Defs.' Resp. to Pl.'s SSMF if 16.) The Cellebrite
report identified messages based on the messaging application used to send them. (Lynch Deel.,
Ex. D at 121-22.) Defendant Sembler did not use the Cellbrite report in drafting the affidavit
(id. at 204), and therefore did not know of this difference based on the Katana Lantern 3 report
that he used (Defs.' SMF ~ 46). Notably, in Defendants' reply brief for this Motion, they
describe this particular fact as information "that may have been within the[ir] actual knowledge."
(Defs.' Reply to Pl. 's Opp'n at 4.) Like the text communications dating back to January 2013,
this information was certainly available to Defendant Sembler in the forensic reports. Again, it
is unclear whether it was within his actual knowledge. The Court does agree with Defendants
that, at first blush, the difference between an iMessage and SMS may have seemed of little value.
Yet technological advancements in the use of messaging applications over WiFi networks and
multiple devices to communicate-not just cellphones on cellular networks-renders this
distinction a material fact. See supra Section III.A.
On balance, Defendant Sembler was not free to exclude this potentially exculpatory
evidence, even if the evidence of the telephone number put forth itself suggested probable cause.
See Andrews v. Scuilli, 853 F.3d 690, 699 (3d Cir. 2017). Construing the facts presented in a
light most favorable to Plaintiff, the Court finds that the facts regarding communications prior to
April 2013, the label of the 0402 number in Ageyman's phone, and the type of message are
2. Materiality and Reconstruction
As to the materiality element, the Court must reconstruct the affidavit by including any
omissions and correcting any inaccuracies and then determine whether that affidavit would have
established probable cause. 1 Vance v. State ofN.J. Div. ofLabor & Pub. Safety, 2017 WL
3895553, at *6 (D.N.J. Sept. 5, 2017); see also Andrews, 853 F.3d at 700. To award summary
judgment in Defendants' favor the court "must conclude 'that no reasonable jury could find facts
that would lead to the conclusion' that the reconstructed affidavit lacked probable cause."'
Andrews, 853 F.3d at 700 (citing Wilson, 212 F.3d at 792).
Defendants put forth one fact in their affidavit related to Plaintiff: "I have identified
Leigh Kohlhaas' s telephone number used in text message communications with Lewis Ageyman
regarding fraudulent credit card orders." (Defs.' SMF ~ 30.) With the omissions discussed
above noted in brackets, this should read,
"While the question of probable cause is generally left to the jury, a court may conclude that
probable cause exists as a matter oflaw, 'if the evidence, viewed most favorably to [the
nonmoving party], reasonably would not support a contrary factual finding."' Goodwin, 836
F.3d at 327 (quoting Sherwood v. Mulvihill, 113 F.3d 396, 401 (3d Cir. 1997) (alterations in
I have identified Leigh Kohlhaas' s telephone number used in text message
communications [via iMessage] with Lewis Ageyman regarding fraudulent credit
card orders. [This number was assigned to Leigh Kohlhaas by his employer
J.Crew, Inc. in May 2013, but text message communications with Lewis
Ageyman dated back to January 28, 2013. The contact with this number in Lewis
Ageyman' s phone is labeled "E".]
Based on this reconstruction, Defendants' alleged omissions could "prevent a fact-finder
from concluding that the reconstructed affidavit still established probable cause." Andrews, 853
F.3d at 703. In other words these omissions are material because a fact-finder may find that the
omitted evidence, in contrast to the link of the 0402 number alone, negated probable cause to
arrest Plaintiff. In the context of the qualified immunity analysis at large, this demonstrates that
a fact-finder may find that Defendant Sembler made material omissions, thereby violating
Plaintiff's Fourth Amendment right. See Wilson, 212 F.3d at 787-87. For these reasons, the
Court cannot award summary judgment in Defendant Sembler' s favor.
Failure to Intervene Claim
Finally, Defendants argue that they are entitled to judgment on Plaintiff's failure to
intervene claim because they did not violate his constitutional rights. (Defs.' Mot. Summ. J. at
18-19.) Because the Court has already found that Defendants McGovern and Sharpe are entitled
to absolute immune, they are immune from Plaintiff's failure to intervene claim. See supra
Section II. The following discussion only applies to Defendant Sembler.
A failure to intervene claim under the Fourth Amendment requires the plaintiff to prove:
"(1) that the officer had a duty to intervene, (2) that the officer had a reasonable opportunity to
intervene, and (3) that the officer failed to intervene." Hayward v. Salem City Bd. ofEdu., 2016
WL 4744132 (D.N.J. Sept. 12, 2016) (citing Smith v. Mensinger, 293 F.3d 641, 650-51 (3d Cir.
2002)). Defendants correctly noted that, absent demonstration of a constitutional violation of a
plaintiffs rights, a failure to intervene claim cannot succeed. Bryant v. City ofPhiladelphia, 518
F. App'x 89, 93 (3d Cir. 2013).
Based on the discussion above, the Court rejects Defendants' argument for immunity
from this claim. Contrary to Defendants' assertion, Plaintiff pied sufficient facts to defeat
summary judgment on his Fourth Amendment claim, and Defendant Sembler is not granted
qualified immunity at the summary judgment stage.
For the reasons stated above, summary judgment will be granted as to Defendants'
argument regarding due process and their absolute immunity claims and denied as to
Defendants' qualified immunity argument. An accompanying Order will follow.
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