On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-4448-04.
The opinion of the court was delivered by: R. B. Coleman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman, R. B. Coleman and Sabatino.
Plaintiff Donald C. Bayer, Jr. was arrested for a bank robbery he did not commit, based on a bank teller's misidentification of him at a showup conducted by the Union Township Police Department (the Department) shortly after the crime. Plaintiff sued Union Township (the Township) and the individual police officers involved for false arrest and false imprisonment under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3 (TCA), and for violation of his constitutional rights pursuant to 42 U.S.C.A. § 1983. His TCA claims were dismissed after his motion to file a late notice of claim was denied, and his section 1983 claims were dismissed on summary judgment after the court found that there was probable cause for the arrest and that, alternatively, the police officers enjoyed qualified immunity. We affirm.
On the morning of December 19, 2003, Odete Luis was working as head teller at the NorCrown Bank on Colonial Avenue in Union Township. A man walked up to her window and gave her a bag with a note that read: "PLACE ALL THE MONEY IN THE BAG. NO DYE, TEAR GAS OR BAIT MONEY. YOU HAVE 10 SECONDS." According to the statement that Luis subsequently gave to Detective Gregory Rossi at headquarters, the robber was a short white male, approximately five feet five inches tall, and between nineteen and twenty-three years of age. He was wearing a blue windbreaker jacket and a blue baseball cap pulled down over his eyes. When he raised his head, Luis saw that he had "mean eyes." He was clean-shaven, and Luis did not recall having seen him in the bank before. After Luis put the money from both her drawers into the man's bag and gave it to him, he quickly left the bank. Luis then yelled to her manager that she had been robbed and pushed the security button.
Kimberly Cornacchia was working at the drive-up window that day. Prior to the robbery, she had observed the robber walking down the street toward the bank. She noticed him because he looked like a "thug"; however, she did not notice anything out of the ordinary while he was in the bank. After Luis said she was robbed, Cornacchia called 9-1-1.
The Union Township Police Department received the call at 9:23 a.m. and broadcast it over the radio to its officers. Officer Edward Koster was the first to arrive at the scene of the crime. He spoke to Luis and Cornacchia and to the bank manager, Lu Vallejo. Detective Lieutenant Ronald Berry also responded to the scene and was the ranking supervisor in charge of the investigation. He was present when Luis gave her description of the robber, which was largely consistent with the description she later gave in her statement at headquarters. Both Koster and Rossi questioned Luis.
At about 9:30 a.m., Officer Christopher Donnelly was in a patrol car when he was "high-beamed" by a driver, who identified himself as Willie Coley, an off-duty police detective from Orange, and asked if a bank robbery had just occurred. Coley related to C. Donnelly*fn5 that he had just been at NorCrown Bank to use its ATM and had noticed a white male wearing a baseball hat with money stuffed in his pockets. Coley told C. Donnelly that the man fled in an older model midsize gray or black vehicle.
According to the formal statement that Coley later gave to Sergeant Joseph Dilginis, he had observed money coming out of the top of a bag that the man was holding. The man turned his head away from Coley, walked past him and then got into a dark-colored vehicle approximately one hundred yards away on Colonial Avenue.
C. Donnelly broadcast the information that he received from Coley to other units on the road. About thirty minutes later, Hillside Township police detained a suspect at a location approximately four to five minutes from the bank by car. Union Township Officers Thomas Ollemar and Peter Simon were dispatched to that location in Hillside and stayed until Sergeant Shawn Herrighty arrived. The Hillside officers who were with plaintiff told Herrighty that they had been on patrol when they saw a car matching the description given over the broadcast. When they pulled up behind it, the driver, later determined to be plaintiff, took off one hat and put on a different type of hat. They ultimately detained him.
According to plaintiff, he left his house at approximately 9:25 a.m. that morning, driving a 1989 gray Chevy Caprice. He was wearing gray sweatpants, a red sweatshirt, sneakers, a dark blue winter coat, and a blue winter cap. As he observed a Hillside police car coming up behind him, he removed his cap, merely as a nervous reaction. Although there was a green baseball cap with a Sierra Mist logo on the front seat of his car, plaintiff had not worn it that day.
According to Berry, he, Rossi, and Captain Edward Shapiro, made the decision to have the three witnesses - Luis, Cornacchia, and Coley - transported to the Hillside location where plaintiff was detained to see if they could identify him as the robber. According to Shapiro, who was the most senior officer at the scene but not the officer in charge of the investigation, it was "standard operating procedure" to take a witness to view a suspect if the suspect has been stopped "right after a crime." Although Shapiro was not sure if that standard procedure was written down anywhere, he claimed that he had been trained that way and that the case law supported it.
Shapiro maintained that a "fresh crime" required the prompt display of a suspect to a witness. He defined a fresh crime as one where the crime had just occurred, the suspect had fled and then someone was apprehended "within tens of minutes."
Three separate Union Township police officers transported each of the three witnesses to Hillside to view plaintiff. Plaintiff was wearing handcuffs during the entire showup procedure. He stood next to Herrighty in front of a patrol unit. Although Herrighty did not recall if plaintiff was required to wear a baseball cap, plaintiff claimed that he was required to wear the cap that was found in the front seat of his car. Plaintiff also claimed that, during the procedure, one of the officers on the scene walked arm-in-arm with him for about twenty feet.
Berry was assigned to take Luis to the showup. According to his deposition testimony and his police report, he told Luis while they were en route that she should not feel obliged to identify anybody and that the suspect may or may not be the robber. He also told her to take her time, and he tried to calm her down.
When Berry arrived at the Hillside location, he parked his car about a block away from where plaintiff was situated. He got out of his car to speak to the officers on the scene to determine how the showup was going to be conducted. According to Berry, when he returned to his car, Luis exclaimed, "Oh, my God, that's him. I can't believe you got him so quick." Berry told Luis to take her time and then drove closer to the suspect. After viewing him from a distance of approximately fifteen or twenty feet (a distance that was corroborated by Herrighty), Luis said that plaintiff was the robber, except that his clothes were different. According to Berry, Luis was sure it was him because he had the "same face and those eyes." In the formal signed statement Luis gave to Rossi at headquarters shortly after this identification, Luis stated that she was ninety percent sure that the suspect was the robber.
At her deposition taken on March 15, 2007, more than three years after the robbery, Luis recalled that the police told her that they had found somebody that matched the robber's description, and they wanted to see if she could recognize him. She did not remember what she may have said at the time of confrontation. In particular, she did not remember whether she exclaimed: "Oh, my God, that's him!" She did remember saying that it looked like him, especially the way he was wearing the cap on his head and the way he was walking. Luis recalled that she told Berry: "I don't want to say something that somebody can go to jail if it's not the person." Luis claimed in her deposition that she was not confident that plaintiff was the robber and that she conveyed that lack of confidence to the police. Specifically, she said she told both Berry on the scene and Rossi back at headquarters that she was not one hundred percent sure.
Sergeant Marc Bruno was assigned to take Cornacchia to the Hillside location. Cornacchia told Bruno that she could not identify plaintiff as the person who robbed the bank, and Bruno conveyed that fact to Berry. As Bruno turned his car around to take Cornacchia back to the bank, she asked him, "Is that Don Bayer?" When Bruno asked how she knew him, she said that he was a bank customer and also had been a substitute teacher when she was in high school. Bruno believes that he relayed that information to Rossi. Cornacchia also gave an official statement in which she confirmed that she could not identify plaintiff as the robber at the showup.
C. Donnelly was assigned to take Coley to the Hillside location. Donnelly pulled his car close enough so that Coley could get a clear view of plaintiff, who was leaning up against the trunk of his vehicle. Coley was able to positively identify the vehicle, but said that plaintiff might "possibly" be the robber. According to the formal statement that Coley gave a short time later, plaintiff did not have a hat on and appeared older than the robber, but his jacket and physical appearance were the same. Coley was "pretty sure" it was the same vehicle and claimed that he was able to positively identify it.
Following the showups, Officers Carlos Turner and Robert Donnelly transported plaintiff to headquarters and read him his rights. According to R. Donnelly's arrest report, plaintiff had straight, collar-length hair, a pale complexion, and a thin build. He was five feet ten inches tall, weighed 160 pounds, and was thirty-seven years old. According to Officer Turner's property report, plaintiff had $47 in cash on his person when arrested.
Later that afternoon, Rossi and Officer Thomas Ronan conducted a search of the house where plaintiff lived with his mother, after obtaining his mother's consent. The officers did not find any cash in the house; nor did they find a blue jacket or a blue baseball hat.
After returning to headquarters, at approximately 2:00 p.m., Rossi signed a complaint warrant charging plaintiff with second-degree robbery, relying on the oral statements of the officers involved in the case. He did not read their official reports until later. Rossi also relied on the statement that Luis provided at headquarters, in which she said she was ninety percent certain that plaintiff was the robber.
Rossi admitted that he had no knowledge of how the showups had been conducted. Although he was aware of Luis's initial description of the robber, Rossi never actually looked at plaintiff before signing the complaint to see if he fit that description. According to Rossi, the fact that Luis made a positive identification was more important than her verbal description of the suspect. In addition, Rossi relied on the fact, which he learned from Berry, that plaintiff had made a statement to R. Donnelly that he had been at the bank earlier in the day (plaintiff later claimed he never made that statement).
After Rossi signed the complaint warrant, he read Koster's report and determined that certain inconsistencies in the investigation deserved further inquiry. He decided to undertake a reassessment of the evidence and reviewed a compact disc version of the bank's videotape of the robbery. Earlier that day, Rossi had viewed the security tape at the bank with the bank's security officer but had not been able to zoom in on the robber. Once he was able to zoom in on the perpetrator's face, Rossi immediately noticed that the robber had short hair, whereas plaintiff had longer hair.
Rossi conveyed his doubts to Berry and another superior officer. He also called a judge, who instructed him to call the county prosecutor. The assistant prosecutor told Rossi to release plaintiff on his own recognizance and to set up a polygraph test. At approximately 8:30 p.m., Rossi took a statement from plaintiff and told him about the doubts the police were ...