On appeal from Superior Court of New Jersey, Law Division, Cape May County, Docket No. L- 884-93.
Before Judges Havey, Wells and Payne
The opinion of the court was delivered by: Wells, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Cape May County, Cape May County Prosecutor's Office, Cape May County Narcotics Task Force, Robert Cramer and Steven McShaffry, (the County defendants) appeal from the entry of a final judgment against them and in favor of plaintiffs, Charles Maudsley, in the sum of $100,000, and the Estate of his late wife, Barbara Maudsley, in the sum of $25,000. While the judgment did not award any prejudgment interest, it ordered defendants to pay $143,745.74 in counsel fees and costs to plaintiffs.
The Maudsleys cross appeal from the judge's decision denying punitive damages, prejudgment interest, and award of only one- half of the counsel fees sought.
The factual background out of which the judgment under appeal arises is described in our prior opinion, Maudsley v. State, 323 N.J. Super. 579 (App. Div. 1999). Briefly, Cramer, an agent of the Cape May County Narcotics Task Force (Task Force), applied for and obtained a search warrant for a vessel, the "Imperial," moored at the Lobster House dock in Lower Township. Cramer prepared the application based on information he received from McShaffry, another agent with the Task Force. McShaffry had received a tip from an unnamed informant that a large shipment of narcotics was aboard the Imperial, which had just arrived from Florida, and that its crew was heavily armed. Pursuant to a search warrant issued by a tax court judge, a large contingent of police officers, including State troopers, raided and searched the Imperial on October 2, 1991. After a forty-minute search, during which the owner and captain, Charles Maudsley, was detained and frisked, nothing was found.
The Maudsleys filed suit under 42 U.S.C. § 1983 for compensatory damages to themselves and to the Imperial, punitive damages, prejudgment interest, and counsel fees. The County defendants asserted that probable cause for the search warrant existed, but even if it did not, they were afforded a qualified immunity from liability under § 1983 protecting the officers. The Maudsleys sought the name of the confidential informant who supplied the tip and other discovery concerning the investigation leading to the issuance of the warrant. The judge denied the request for the name of the informant and eventually ruled that the search was based upon probable cause. The plaintiffs' claims under § 1983 collapsed, and the trial proceeded only on their claims of excessive force accompanying the search itself. The jury found no cause for action as to those claims. The Maudsleys appealed.
We reversed, directing that the name of the informant be produced. We stated:
In Point I, plaintiffs argue that the trial court erred in dismissing the § 1983 claims against the County defendants based on defendants' qualified immunity. We decline to address this point. In our view, after the disclosure of the identity of the informant and the plaintiffs have had an opportunity to conduct discovery, the issue of the County defendants' qualified immunity should be revisited by the trial court. At that point, the trial court should reconsider whether summary judgment in favor of the County defendants is appropriate. If not, the matter must be retried as to the County defendants.
[Maudsley, supra, 323 N.J. Super. at 594.] Following our decision, the name of the informant, George McClain, was produced. Further discovery ensued revealing the details of the Task Force investigation leading to the issuance of the search warrant. The County defendants then filed a motion for summary judgment to dismiss the complaint. Because the most current precedent involving claims for damages under § 1983 holds that the issue of qualified immunity should be presented "'at the earliest possible stage in the litigation,'" Schneider v. Simonini, 163 N.J. 336, 356 (2000) (quoting Hunter v. Bryant, 50 U.S. 224, 227, 112 S. Ct. 534, 536, 116 L. Ed. 2d 589, 595 (1991), cert. denied, 531 U.S. 1146, 121 S. Ct. 1083, 148 L. Ed. 2d 959 (2001)), and because the issue is one for the court not the jury, id. at 357, the motion and its result are a significant threshold to later rulings in the case.
The present record does not give us precisely what the judge considered on the motion. We, however, are assured from his ruling that he considered the depositions of both McShaffry and Cramer; an affidavit from Dennis Jones, an officer from Ocean City who vouched for McClain; an affidavit from an assistant prosecutor who reviewed by telephone the affidavit in support of the warrant before it was submitted to the judge; the affidavit presented to the tax court judge in support of the search warrant; McShaffry's investigative reports for the four days immediately prior to the search itself, September, 27, 28, 30 and October 1, 1991; and an affidavit from Maudsley.
Based on these submissions, the judge denied the County defendants' motion. He specifically concluded that the affidavit in support of the search warrant was insufficient to support a finding of probable cause to search the Imperial. He concluded that evidence of reliability of the informant was lacking. He also found a fact issue existed surrounding the "state of the officer's knowledge regarding the arrest and convictions as the result of information provided from . . . this particular informant." The judge stated:
The depositions disclose that McShaffry and/or Cramer did some investigation into the reliability of this informant. In this regard, McShaffry relied on Cramer to check the informant's criminal record. Cramer thought he checked the record. Both officers thought that the informant had minor violations, but not criminal convictions. It turns out that in 1986 there was a conviction for burglary. There was also a -- an arrest then pending, an arrest which had recently been made in June of 1991 for an assault, which was apparently never mentioned to McShaffry or Cramer. This assault charge was ultimately downgraded, and according to the depositions of McShaffry and Cramer, neither had knowledge of that particular action. These officers also relied on telephone calls, as I have said, to officers in Lower Township and Ocean City about the reliability of this informant. Detective Dennis Jones, in particular, of Ocean City, has submitted an affidavit in conjunction with this motion that he had knowledge of the informant and that based upon his own use of this informant, Detective Jones believed him to be reliable. This affidavit in this Court's view, however, is totally lacking in specificity and of little use on the issues before this court. I understand and do realize that it is true that this affidavit came some nine years after the events in this particular case. But it's generality, nonetheless is inexcusable. If the content of that affidavit is all that was given to McShaffry, then our standard of probable cause has been substantially eroded. No information has been provided by Detective Martin from Lower Township regarding his use of this informant. Although, McShaffry claims to have relied upon that information as well.
. . . . In addition, in regard to that particular affidavit, while the affidavit alleges numerous arrests and convictions, it does not mention any investigation into the informer's reliability or the contact with other officers at the time -- or at this particular time, or at any prior time; that is, namely the Ocean City or Lower Township officers. But the affidavit certainly, as I've indicated -- indicated in 5A that there had been numerous arrests and convictions. There's no information in the affidavit stating that McShaffry had reason to believe that the informer was reliable, other than as based upon an inference which may be drawn, of course, from the statement contained in 5A, that numerous -- numerous arrests and convictions had been made based upon information provided by this particular informant.
The judge also found the facts surrounding the officers' independent investigation of McClain's tip either inconclusive or disputed in material respects. First, a fact issue remained "as to whether Officer McShaffry actually saw the informant enter the vessel in question." The judge reviewed the evidence on that point:
McShaffry, in response to the request, transported the agent (sic) and watched him walk to the rear of the docks to meet an allegedly Hispanic individual and board a boat with a black hull. And I know that there's some controversy factually about those circumstances that day. Sometime later, and according to the defendant's submissions, approximately 3 1/2 hours later, McShaffry was informed that the informant had been taken to the cargo hold of the boat and that he was shown a large amount of cocaine packaged in kilo gram form -- bags in the form of bricks. The informant also said that he observed several automatic weapons on board, including many machine guns, extra ammunition, 9 millimeter machine pistols and a revolver that the captain allegedly wore in a holster -- or had in a hols -- shoulder holster on the vessel. These facts are again disputed by the captain who says no one was aboard his vessel the entire day preceding or the entire day in question other than his own crew. McShaffry then alleges that the informant identified the boat in which he had witnessed the drugs and the automatic weapons, and this was a black hulled boat named The Imperial. He identified The Imperial, according to McShaffry, as the boat containing the contraband.
Secondly, the judge concluded that the officers failed to reach out to other law enforcement agencies such as the Coast Guard, the DEA or the State Police to verify McClain's tip.
Thirdly, the judge rejected the argument that the County defendants could rely on an assistant prosecutor's review of the affidavit to be submitted to the judge in support of the warrant. The judge stated:
Reliance is also placed by the defendants upon the assistant prosecutor's review of the affidavit in support of the search warrant. The assistant prosecutor, who at the time was James Herlihy, submitted an affidavit in respon -- in support of this particular motion for summary judgment regarding his recollection of his particular review. He states that he reviewed the affidavit and approved probable cause. However, his recollection of the events was not very clear. Again, I realize that that was nine years ago. He did not see the application and believes it was read to him over the phone. He believed the informant had previously given him information resulting in arrests and convictions. He did not address in his affidavit, nor does the defense present any information to this court that the information in the affidavit was such as to give a basis for belief that this informer had the context and the ability to be involved, and to infiltrate the drug operation alleged to be occurring aboard The Imperial.
Fourthly, the judge found the evidence of a claim of exigent circumstances in obtaining the warrant unsupported. He stated: Lastly, the defendant claimed that exigent circumstances justify any shortfall in their investigation and sufficient exigent circumstances to support a reasonable belief and the existence of probable cause. Here again, I have to repeat that the operation began with some information being provided as early as September 27th, 1991. The search took place on October 2nd. Admittedly, the bulk of the information and the hustle and bustle occurred on October 1st. There was, nonetheless, better than four days for investigation into the basis of knowledge of this particular informant. The defendants claim that the basis of knowledge, which they accepted, if it found to be true, is that this informer reported actually seeing a large quantity of drugs and an arsenal of weapons. Defendant accepted that statement without question. Given the amount of time between the first notice of drug activity and the ultimate search, it is not this Court's -- this Court cannot say that exit -- exig -- exigent circumstances could reasonably exist in that context.
Finally the judge carefully reviewed both our opinion and the opinion in Schneider. He announced that the test for granting qualified immunity rested on whether the officers had an objectively reasonable basis to apply for a search warrant. He concluded that he could not determine the issue as a matter of law because it essentially turned on the question of whether the officers adequately investigated McClain's reliability and the basis of his knowledge about the Imperial, its crew, and cargo. He ruled:
Significant here is the fact that neither McShaffry nor any other law enforcement official conducted any independent investigation of the information given by the informant regarding The Imperial, Maudsley or his crew.
Thereafter, between February 20, 2001 and February 28, 2001, the judge presided over a bench trial. On March 14, 2001, in an oral decision, he denied the County defendants' motion to dismiss the complaint on the defense of qualified immunity. On March 23, 2001, the judge awarded damages to the Maudsleys in the sum of $100,000 to Charles and per quod damages to the late Barbara Maudsley in the sum of $25,000. At the same time, he denied an award of punitive damages. In a later ruling in May 2001, the judge denied prejudgment interest as a matter of law and in his signed judgment awarded plaintiffs $143,745.74 "as proportional reimbursement" for legal fees and costs.
We recite the evidence as it emerged at the February 2001 trial as we glean it from the record. McShaffry and Cramer first came into contact with George McClain in June 1991, when McClain offered to serve as a confidential informant for the Narcotics Task Force. When McClain first met with McShaffry and Cramer, he told them that he wanted to volunteer information simply because he wanted to help stop drug traffic. McClain did not request to be paid for his information. McClain told the officers that he had used drugs in the past, and that he had previously provided information regarding illegal activity to other police officers. Specifically, McClain stated that he had provided information to Detective Dennis Jones of the Ocean City Police Department and Detective Robert Martin of the Lower Township Police Department. McClain also stated that he had been arrested previously. Before the meeting ended, McClain stated that he would try to set up a narcotics buy and would be in contact with them.
Sometime after this meeting, Cramer did a criminal history check on McClain which revealed that he had been convicted on a burglary charge and that he had a pending assault charge. It is unclear whether McClain told the officers about the burglary charge; however, he did not tell the detectives about the pending assault charge. *fn1 Cramer did not inform McShaffry about McClain's past record. Meanwhile, McShaffry contacted Detective Jones from Ocean City and Detective Martin from Lower Township. According to McShaffry, both of these officers vouched for McClain, stating that he had given them information leading to arrests and convictions. McShaffry advised Cramer about these conversations.
From July 1991 through October 1991, McShaffry was in almost daily contact with McClain. Moreover, from July 3, 1991 to August 16, 1991, McClain arranged five street level drug buys with McShaffry acting, undercover, as a buyer. The buys totaled about $900, the sellers were arrested, but the record does not reveal whether the sellers were ever convicted. Based on these buys, McShaffry indicated that McClain's tips up to that about the Imperial had been accurate.
On September 27, 1991, McClain informed the prosecutor's office that he possessed information regarding an unsolved child molestation/murder case. He also claimed that a man named "John," who had recently been arrested, was importing hashish into the Wildwood area. McShaffry checked the information and determined that a John Leszanski had been arrested in August 1991. Nevertheless, the record reveals no further investigation, charges, arrests, or convictions followed as a result of these two tips. On the same day, McClain also informed the officers that a large shipment of cocaine would soon be arriving in Cape May aboard a fishing boat from Florida.
On September 28, 1991, McClain told McShaffry that he had been in touch with a subject named "John" who was dealing drugs from the Lobster House docks in Cape May and who was "capable of setting up narcotics transactions from the docks." McClain asserted that he could not supply "John's" last name because he was "terrified" of being killed. On September 30, 1991, McClain called McShaffry stating that he would be in contact with "John" on October 1, 1991 to set up a meeting with the captain of the Florida fishing vessel for the purpose of purchasing a large quantity of cocaine. No additional independent investigation was done by any detectives concerning "John," the arriving vessel, or the circumstances surrounding the basis of McClain's knowledge of John or of the substance of the tip.
On October 1, 1991, McClain telephoned McShaffry to tell him that the fishing boat had docked and that he wanted to meet with McShaffry. McShaffry conferred with Cramer. McShaffry then met and spoke with McClain beneath the Cape May bridge where, at that time, McClain told McShaffry that he had arranged a meeting with the captain of the boat. McShaffry drove McClain to the dock at approximately 3:15 p.m. From a vantage point in the parking lot of the Lobster House, McShaffry, using binoculars, observed McClain meet a Hispanic male and enter a vessel with a black steel hull. McShaffry then left the scene. McShaffry acknowledged that he did not see the name of the vessel.
About three hours later, McShaffry picked McClain up. McClain told McShaffry that he had been introduced to a Latin male named "John Walker." John Walker was McClain's contact and the person who knew the crew of the vessel. After meeting Walker, McClain stated that he was taken to the cargo hold of the boat where a "large" amount of cocaine was packaged in kilogram bags. While below, he met the captain and other crew members. He then taste tested the cocaine and arranged for the purchase of a kilo of cocaine for $20,000. McClain was instructed to arrive with a buyer at 1:00 p.m. the next day. According to McClain, he also observed several automatic weapons aboard and noted that the captain wore a revolver in a shoulder holster.
After McShaffry reported to Cramer, he drove McClain to a vantage point opposite the dock where McClain identified the "Imperial" as the boat he boarded containing cocaine in the cargo hold. From there, McShaffry observed the name Imperial on the bow of the boat. The two then returned to the prosecutor's office where they met with Cramer, Lieutenant Barnett, in charge of the Task Force, and Captain Rybicki, and explained what had occurred. Based on the information provided by McShaffry and McClain, Barnett and Rybicki believed that the Task Force had probable cause to request a search warrant. They instructed Cramer to prepare a search warrant application. The application was telephonically reviewed by an assistant prosecutor, and submitted to a Tax Court judge at about 2 a.m. on the morning of October 2, 1991.
In his application, Cramer described the Imperial in considerable detail. The evidence to be seized was referred to as various controlled dangerous substances, weapons and "unidentified persons at the premises. . . ." Cramer prepared the application in support of the warrant based upon McClain and McShaffry's information. The following facts were set forth:
(a) On September 27, 1991 a confidential informant [hereafter] referred to as CI-1, who has provided information in the past that has led to the arrest and conviction of numerous persons for violations of controlled dangerous substance laws. Contacted Agent McShaffry of the Cape May County Narcotics Task Force and stated that within the next few days a large shipment of Cocaine would be coming into the Lobster House docks on a fishing boat. CI-1 stated that the shipment would be coming from the south possibly Florida. CI-1 stated that he might be able to make an introduction to the people on this boat and arrange for the purchase of several kilos of Cocaine.
(b) On October 1, 1991 CI-1 contacted Agent McShaffry of the Cape May County Narcotics Task Force and stated that the boat with the shipment of Cocaine had arrived and was now tied up at the Lobster House dock in Lower Twp. CI-1 told Agent McShaffry that he needed a ride to the dock so that he could meet with the people on the boat. Agent McShaffry drove the CI to the Lobster House dock and dropped him off, and watched him walk to a large black steel [hulled] boat where he met with a Latin male.
. . . . This unidentified Latin male spoke to the CI briefly. Then the unidentified Latin male took CI-1 onto the boat and down into a cargo hold and showed him a pallet of clear plastic bags that contained Kilo Grams of Cocaine. CI-1 stated that the unidentified latin male told him that he would sell the Cocaine for $20,000.00 (Twenty Thousand Dollars) a Kilo. CI-1 states that there was a large quantity of Kilo bags of Cocaine piled up in the hold of the boat. (c) CI-1 told Agent McShaffry that while he was on the fishing boat at the Lobster House dock he/she personally observed 4 (four) automatic weapons that included 2 mini 14 type assault weapons with two 50 round clips taped together. CI-1 stated that he saw four other crew members on the boat. All the crew members were said to be Latin possibly Cuban.
(d) CI-1 and Agent McShaffry went to an area of the docks where CI-1 showed Agent McShaffry a large fishing vessel with a black hull with the name 'Imperial' in white letters painted on the bow.
(e) On October 1, 1991 Agent[s] of the Task Force conducted surveillance of the area of the Lobster House dock, between the hours of 8:00 p.m. and 11:59 p.m. During this time they observed a large black steel [hulled] boat with a white pilot house. This boat had the name 'IMPERIAL' painted in white on the bow. This boat was approx. 80 to 90 feet in length.
While Cramer was securing the search warrant, the Task Force contacted several other agencies for support, and by 6 a.m. on October 2, 1991, the amassed force executed the warrant. After searching the Imperial for forty minutes, the Task Force uncovered absolutely no evidence of drugs, weapons or Latin crew members.
In addition to these details of the investigation, the trial judge also heard impressive and detailed testimony from two experts on the adequacy of that investigation. The County defendants called Edwin Stier, a former Deputy Director of the Division of Criminal Justice. Stier testified to a wide variety of training and experience in a career spanning nearly thirty-five years in law enforcement, particularly in narcotics investigations and drug law enforcement. Stier reviewed a long list of affidavits, depositions, and reports associated with the investigation in this case, most, if not all of which, were before the court. He then answered following series of questions:
Q: In reviewing these materials, have you reached any conclusion with respect to the reasonableness of ...