The opinion of the court was delivered by: Debevoise, Senior District Judge
This matter is before the court on defendant Joseph Perna's motion for summary judgment. For the reasons that follow, the motion is denied.
The uncontested facts and contested factual allegations underlying this civil action are set forth in the Final Pretrial Order ("FPO") signed by counsel for all parties to this action, signed by United States Magistrate Judge Susan D. Wigenton, and filed with the court on November 21, 2000. *fn1 The uncontested facts are set forth in the stipulation of facts in the FPO; the contested factual allegations are set forth in plaintiff and defendants' statements of contested facts in the FPO. Only those uncontested facts and contested factual allegations necessary to disposition of this motion are recounted herein; all uncontested facts and contested factual allegations recounted herein are drawn from the FPO. As will be shown, genuine issues of material fact exist in this action and await determination by the finder of fact at trial. Summary judgment must therefore be denied.
Those few facts upon which the plaintiff and the defendants agree are as follows. On December 13, 1996, Milone was driving his car in North Brunswick, New Jersey. FPO at 6, 14. Riding as his passenger was a woman named Adeline. *fn2 Id. at 4. Milone stopped his car at a residence in North Brunswick, and Adeline got out of Milone's car and approached the residence. Ibid. The parties dispute whether Adeline entered the residence, but they do not dispute that she eventually returned to Milone's car and resumed her place as his passenger, whereupon Milone drove away from the residence with Adeline through the streets of North Brunswick. Ibid.
Milone's car was stopped in North Brunswick by defendant James Benanti ("Benanti"), a detective with the North Brunswick Police Department driving an unmarked police car. Id. at 4, 7, 14. Benanti approached Milone's car and asked Milone for his driver's license, motor vehicle registration, and proof of automotive insurance, which Milone provided. Id. at 4, 7, 15. Benanti eventually requested that Milone get out of his car, and Milone did so. Id. at 4. At that time, Milone refused to consent to a search of his car. Ibid.
Next on the scene was defendant Perna, an officer with the North Brunswick Police Department driving a marked police car. Id. at 4, 7, 16. Benanti reiterated his request that Milone consent to a search of his car; Milone again refused to consent. Id. at 5.
Some time later, defendant Kenneth McCormick ("McCormick"), a sergeant with the North Brunswick Police Department, arrived on the scene. Ibid. McCormick eventually signaled to Benanti and Perna that they should search Milone's car, and Benanti and Perna did so. Ibid.
Beyond these few facts, the plaintiff and the defendants' stories diverge radically.
Plaintiff's Contested Allegations
Milone alleges that on December 13, 1996, he drove Adeline, the friend of a friend, from South Brunswick to a residence in North Brunswick so she could speak with a person who did not have a telephone about Adeline's finding a babysitter for her son. FPO at 6. Once Milone and Adeline arrived at the residence, the address and location of which only Adeline knew, Adeline got out of Milone's car and walked to the door of the residence. Ibid. She summoned the occupants of the residence either by knocking on the door or by ringing the bell. Ibid. The door to the residence opened, and there appeared in the doorway first a young girl and then a male. Ibid. Adeline and the male spoke on the porch of the residence for approximately five minutes, and then Adeline returned to Milone's car. Ibid. Adeline never entered the residence. Ibid.
Adeline reentered Milone's car and told him she had taken care of finding a babysitter. Id. at 6-7. Milone proceeded to drive Adeline home. Id. at 7. He drove lawfully for several blocks, looking for the entrance ramp to the highway, until his car was stopped by Benanti, who was dressed in plainclothes and was driving an unmarked police car. Ibid.
Benanti approached Milone's car, spoke with him, and eventually asked Milone if he could search Milone's car. Ibid. Milone asked Benanti if he had a search warrant; when Benanti replied that he did not, Milone refused to consent to a search of his car. Ibid. Benanti told Milone that Benanti had a right to detain Milone until drug-sniffing police dogs arrived on the scene. Ibid. Milone asked Benanti why he had been stopped, but Benanti refused to tell him. Ibid. Milone then gave Benanti his driver's license, car registration, and proof of automotive insurance and sat in his car with Adeline. Ibid.
After approximately thirty minutes, Perna arrived on the scene in uniform and in a marked police car. FPO at 7. Benanti ordered Milone to get out of his car and to stand next to Perna's marked police car. Id. at 7-8. Perna, in turn, ordered Adeline to get out of Milone's car and began questioning her. Id. at 8. Milone again asked Benanti why he had been stopped; Benanti now replied that Milone and Adeline were in a bad area. Ibid. Benanti proceeded to put his hands inside the pockets of Milone's sweatshirt. Ibid.
Once McCormick arrived on the scene, he spoke first with Benanti and then with Milone. Ibid. Milone asked McCormick why he had been stopped; McCormick replied either that Milone and Adeline were in a bad area or that the area was under police surveillance. Id. at 9. McCormick then asked Milone to consent to a search of his car; Milone again refused to consent. Ibid. McCormick then signaled Benanti and Perna by waving his arms and instructed them to go ahead with a search of Milone's car. Ibid. McCormick did not make a statement to Benanti or Perna that Milone had consented to the search. Ibid.
As soon as Benanti and Perna began searching his car, Milone repeatedly and vociferously objected to the warrantless search and declared his refusal to consent to it. Ibid. The search continued, over Milone's objections, for approximately half an hour. Ibid. Benanti and Perna thoroughly searched the interior and the trunk of Milone's car, but found no contraband. Id. at 9-10. They did, however, damage the interior of Milone's car and certain personal effects ...