On appeal from Superior Court, Law Division, Essex County.
Approved for Publication October 31, 1995. As Corrected November 13, 1995.
Before Judges Pressler, Keefe and Wefing. The opinion of the court was delivered by Pressler, P.j.a.d.
The opinion of the court was delivered by: Pressler
The opinion of the court was delivered by PRESSLER, P.J.A.D.
On December 31, 1986, plaintiffs Carolyn and David McKinney, Sr. with their two sons, Gabriel, then seventeen, and David, Jr., then fourteen, were living in the first-floor apartment of a three-story, three-family house in East Orange. At 10 o'clock that morning, David McKinney, Sr. was out seeing to the repair of his car. Carolyn McKinney, on holiday from her job, was in her bedroom, dressed in her nightgown, talking to a friend on the telephone. Gabriel was preparing to leave for basketball practice. David, Jr. was still asleep. Suddenly and without warning, the front door of the apartment was battered down by a sledgehammer, and a team of ten East Orange police officers, most in plain clothes but some in uniform, entered with weapons drawn. According to plaintiffs, the mother and her sons were then manhandled, threatened, abused and terrorized by the officers, who searched the apartment for drugs and found none. The leader of the team, Detective Woodson, on whose affidavit the search warrant had been issued, then realized that not only was there no contraband in the apartment, but that the "wrong" apartment had been broken into and searched.
Plaintiffs commenced this action against East Orange and Detective Woodson seeking a remedy under 42 U.S.C.A. § 1983. They appeal from a partial summary judgment dismissing, on qualified immunity grounds, those of their claims that were based on the issuance of the warrant and its no-knock execution up to the point at which the officers entered their home. The partial summary judgment reserved for trial those issues arising out of the officers' conduct after effecting their entry. A jury returned a verdict of no cause from which plaintiffs also appeal, contending that the trial Judge improperly precluded the testimony of their expert on police procedure despite the plethora of testimony admitted on defendants' behalf attesting to the officers' compliance with routine police procedure.
We reverse and remand on all issues. Our review of the record satisfies us that there was, at the least, a genuine question of fact respecting the qualified immunity defense and that the trial Judge erred in excluding the proffered expert testimony.
We consider first the qualified immunity defense, beginning with the facts surrounding the issuance of the warrant. As we have noted, the warrant was issued on Woodson's affidavit dated December 29, 1986. The relevant assertions in the affidavit start with Woodson's statement that he received information from a reliable informant on December 18, 1986, "that a black female known as Ameetrah was selling narcotics from the 1st floor apartment of 167 N. 18th Street, East Orange...." Woodson then set out to corroborate this information. It is clear from the affidavit as well as from his trial testimony that the totality of his investigation following the receipt of the original information was to arrange two buys by other police informants. Thus the affidavit goes on to explain that on December 19, 1986, Woodson gave a second informant $10 to purchase marijuana and accompanied the informant, after strip-searching him, to the 18th Street address, keeping him constantly under surveillance except for the seven minutes during which the informant was actually in the building. When the informant left the building, he met Woodson at a prearranged meeting place, having been under Woodson's observation from the time he left the building. When they met,
the informant handed this detective a small plastic bag containing a green vegetative substance. The informant stated the substance was purchased from the 1st floor of 167 N. 18th St, from a black female known as Ameetrah described as being 5'7" feet tall, approximately 115 lbs, short black hair, between 21 and 24 years of age and having a medium complexion....
Woodson then arranged for a second ten-dollar buy of marijuana by yet another informant on December 23, 1986. The procedures employed in making the first buy were followed again. Woodson's affidavit reports that when the second informant-buyer turned over his plastic bag of green vegetative matter that later proved to be marijuana, he, too,
stated the substance was purchased from the 1st floor of 167 N. 18th St, from a black female known as Ameetrah described as being 5'7" feet tall, approximately 115 lbs, short black hair, between 22 and 24 years old and having a medium complexion....
Woodson's affidavit concludes as follows:
Based on the aforementioned facts as set forth in this investigation I have just and reasonable cause to believe and do believe that a black female person known as Ameetrah in the first floor apartment at 167 N. 18th St. is engaged in the distribution of narcotics from the first floor apartment at 167 N. 18th St. .... I therefore respectfully request the court to authorize a search warrant for the first floor apartment at 167 N. 18th St., East ...