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John Simmons and Armatrue Simmons v. Larry Loose

January 31, 2011

JOHN SIMMONS AND ARMATRUE SIMMONS, PLAINTIFFS-APPELLANTS/ CROSS-RESPONDENTS,
v.
LARRY LOOSE, A/K/A LAWRENCE LOOS, WALTER PERSKI, JOSEPH CICERO, CHRISTOPHER OTLOWSKI, MICHAEL GEORGE, MARK WODELL, ANDREW DEMUTH, GLEN ROBERTS, MICHAEL GIGILIO, JR., A/K/A MICHAEL GIGLIO, WILLIAM WARD, RICHARD SCHWERTHOFFER, A/K/A RICH SCHWERTHOFFER, MICHAEL SWEETMAN, CHRIS COLANER, DARNELL ESDAILE, RONNIE STEPPAT, JR., A/K/A RONALD STEPPAT, JR., KEVIN CHERNEY, WILLIAM MARTIN, A/K/A BILLY MARTIN, FRANK KRAUSE, TOWNSHIP OF FREEHOLD, BOROUGH OF FREEHOLD, AND TOWNSHIP OF MANALAPAN, DEFENDANTS-RESPONDENTS, AND JAMES KNOLLER, LOUIS BUCCHER, DAVE MEYER, A/K/A DAVID MEYER, ROBERT CRUTCHLEY, JOHN EUTACE, BRIAN DEANGELO, TRISTIN COLLINS, CHRISTIAN DREYER, GLEN SZENZENSTEIR, ROBERT SHAUGHNESSY, JEFFREY ALGOR, DOUGLAS LEMANOWICZ, STATE OF NEW JERSEY, DIVISION OF STATE POLICE, DEFENDANTS-RESPONDENTS/ CROSS-APPELLANTS.



On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-3241-08.

The opinion of the court was delivered by: Philip S. Carchman, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued September 14, 2010

Before Judges Carchman, Messano and Waugh.

The opinion of the court was delivered by PHILIP S. CARCHMAN, P.J.A.D.

This appeal requires us to address the issue of whether an innocent property owner is entitled to compensation under the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, as well as 42 U.S.C.A. § 1983 (section 1983), or in the alternative, just compensation from the State under the Fifth and Fourteenth Amendments of the United States Constitution and Article I, paragraph 20 to the New Jersey Constitution (the taking claim) when property damage occurs as a result of the execution of a lawful search warrant. The first issue requires an application of the unique facts of this case to the provisions of the TCA. Applying the facts, we conclude that plaintiffs are not entitled to such relief under the TCA. In addition, while we recognize that innocent third-parties suffered damages as a result of lawful government action, we conclude that such loss is not a "taking" under either the federal or state constitutions, and the proper remedy must result from legislative action to provide relief.

I.

We address these issues in the context of the following facts. In February 2004, plaintiff Armatrue Simmons, then seventy-one years old, and plaintiff John Simmons,*fn1 then sixty-six years old, owned and resided in a two-story, multi-unit dwelling located at 33 Lockwood Avenue in the Borough of Freehold, which they operated as a licensed rooming house. Armatrue's daughter, son-in-law and granddaughter resided with them, and plaintiffs rented six of their seven available rooms to tenants. Willie Tyler, Armatrue's nephew, rented one of the rooms, and five other unrelated individuals, including two elderly women, rented the other rooms. Plaintiffs had agreed to allow Tyler, who they knew was on probation, to rent a room upon his release from federal prison for drug-related charges, because he had nowhere to live, and they thought he deserved a chance. According to Armatrue, after Tyler's release from prison he attended job training, obtained employment, was not violent, followed her rules and acted like a "gentleman." She trusted Tyler because, as far as she knew, he was not "doing wrong."

On February 26, 2004, a Superior Court judge issued a no-knock search warrant for the property and the adjoining property.*fn2 The search warrant was issued based on an eleven-page affidavit submitted by defendant Patrolman Christopher Otlowski of the Freehold Borough Police Department. The affidavit had been reviewed by an assistant prosecutor, and detailed information from reliable confidential informants, other law enforcement officials and from Otlowski's own lengthy investigation into the two target residences regarding controlled dangerous substance (CDS) activity. At the time, Tyler, the target of the 33 Lockwood search, had five felony convictions in New Jersey, four of which were for CDS possession or distribution. James Brown, the target of the 35 Lockwood search, was on parole, had four felony convictions for CDS possession or distribution, and had several arrests for assault, resisting arrest and obstruction. The affidavit provided that Tyler and Brown, who were related, were "continuously walking back and forth between 33 and 35 Lockwood Ave."

In the affidavit, Otlowski stated that his department had received "numerous complaints" about Tyler selling drugs at the Freehold racetrack and out of the 33 Lockwood residence. Several reliable confidential informants reported that "[a]s arrests were made at the Freehold Racetrack on different occasions for CDS, [Tyler] started dealing more at his residence and on the street . . . due to the pressure of the police in the area of the track." Surveillance conducted over several weeks confirmed that there was "constant motor vehicle traffic pulling up to" the 33 Lockwood residence, that the vehicles left shortly thereafter and that Tyler was "observed on many occasions."

Otlowski also set forth that a concerned citizen informant, who lived in the vicinity of both residences, reported to the police on a weekly and sometimes daily basis over the course of several months that he or she had seen Tyler selling CDS at 33 Lockwood. The informant provided information regarding "an overabundance of vehicle traffic pulling up to the residence and into the driveway of the residence," including one vehicle that was observed "on a consistent basis." The informant provided the police with a description of the vehicle, the driver and the license plate number. Otlowski noted that the vehicle was owned by Damien Stewart, a convicted felon who had admitted "to being the largest [CDS] dealer in Freehold."

Surveillance conducted over several weeks confirmed the informant's report that there was an increase in vehicular and foot traffic arriving at the two target residences, that the majority of the vehicles were rental cars and that most of the traffic occurred in the afternoon and evening hours when Tyler was home. During the investigation into the activities at the target residences, Otlowski and other officers observed Tyler and Brown "making transactions" in front of the two residences, and Tyler was observed meeting with Stewart in the driveway of his residence, during which "an exchange was made."

Additionally, Otlowski stated that between February 18 and 24, 2004, a confidential informant made a controlled buy of crack cocaine from Tyler in the area of the 33 Lockwood residence, while under constant surveillance by undercover police officers. Between February 20 and 25, 2004, a confidential informant made a second controlled buy of CDS from the 35 Lockwood residence, again while under surveillance by undercover police officers.

Otlowski requested that a "no-knock warrant be issued for both residences" based on the concern for the safety of the officers executing the warrant and to prevent destruction of evidence. Otlowski detailed the physical layout of the target residences. He also indicated that at least five people resided in an upper level of the "rooming facility," and that these individuals were observed "moving in and out of the rooms constantly" and at "all hours of the day, evening and night." "The subjects who stay in these rooms are said to have access to the rest of the house such as the common areas of the living room, kitchen and bathrooms." The informant provided information that "some of the subjects who stay in these rooms purchase CDS from Tyler and Brown and sometimes are observed outside on the property of number 33 acting as lookouts." Moreover, the large residence had many windows, and there were few obstructions in the front and rear yards, making it possible for a lookout to detect officers before they reached the dwelling. Otlowski stated that he had observed lookouts during two of his surveillance details and changed his location "due to their curiosity of [his] vehicle."

Further, Otlowski noted that a large dog, usually chained in a pen behind the residences, barked "viciously" whenever anyone approached the properties during the surveillance. The dog was not, however, always outside, and Otlowski suspected the dog might be allowed to enter the 33 Lockwood residence.

Finally, Otlowski averred that the "most important factor" in his request for a no-knock warrant was Tyler's and Brown's association with Stewart, who had been observed at the residences several times a week and was "documented" as their CDS supplier. Stewart was under investigation for CDS and guns, had been involved in a shooting incident with Patrolman Joseph Cicero of the Freehold Township Police Department, had sold large amounts of cocaine to different CDS dealers and had access to a gun supplier in Jackson, New Jersey.

The two-month investigation that led to issuance of the search warrant was conducted by the Joint Investigation Team (JIT), consisting of police officers from both Freehold Borough's and Freehold Township's police departments, but not from the State Police. Because the JIT drew its members from relatively small police forces, it sought assistance from the State Police's "T.E.A.M.S." unit in executing the search warrant. According to Sergeant Mark Wodell of the Freehold Police Department, prior to execution of the warrant, he and Otlowski had met with members of the T.E.A.M.S. unit and the JIT, during which Otlowski informed the officers that the 33 Lockwood residence was a rooming house, and that the entire house had been included in the search warrant.

On March 3, 2004, officers from Freehold Township, Freehold Borough and the State Police converged in the area surrounding the target residences. The State Police's T.E.A.M.S. unit executed the warrant by using a ramming device to forcibly enter the front door and "deploy[ing] a flash bang into the residence," which made a "very loud bang" and created a "brilliant white light." The State Police elected to deploy the "flash bang" as a diversionary tactic because of the size of the residence, the number of residents, reports of drug transactions and the presence of a large dog. Upon entry, the T.E.A.M.S. officers secured the residents and brought them downstairs to a central location.

After executing the warrant, the State Police turned the investigation over to the local police departments to conduct the search. According to Otlowski, he entered the residence at that time and conducted a search of Tyler's bedroom, searching the dresser and the bed "by hand." He said he left the room in substantially the same condition that he found it. He did not search any other rooms in the house, and did not have any contact with the smoke detector or sprinkler system.

Meanwhile, an unidentified man informed plaintiffs, who were attending a prayer meeting at their church, that the police were "raid[ing]" their home. Upon returning home, plaintiffs found that their residence and the surrounding area had been roped off, and they were told to wait outside. When they were eventually permitted to enter their residence, plaintiffs found what Armatrue described as a "holy mess." The parties stipulated that execution of the warrant by the State Police defendants caused $4,312.16 in damages to plaintiffs' residence, including the cost to replace or repair the front door and five interior doors, the fire alarm system, a microwave oven and other personal property, including lighting fixtures, a rug, curtains, a water heater, dishes and glasses. Plaintiffs continued, however, to rent the rooms even though some of the damage had not been fixed as of commencement of the law suit.

Meanwhile, the "Return of Search Warrant," signed by Otlowski and returned on March 4, 2004, provided that:

The within Warrant served on the 3rd day of March 2004, by making a search therein directed, with the assistance of persons hereinafter named: Freehold Twp/Boro Joint Investigation Team members-Lt Larry Loose (FTPD), K-9 unit Billy Martin (MTPD), Ptlm Walter Perski, Ptlm Joe Cicero, myself Ptlm Chris Otlowski, and Freehold Boro Detective Mike George. The NJ State Police T.E.A.M.S. unit also assisted with the entry of the premises.

33 Lockwood Ave Freehold NJ 07728

No evidence was seized from this premises.

There is no indication whether any evidence was seized from 35 Lockwood Avenue, or whether Tyler or Brown were arrested.

As a result of the search and destruction of their property, John stated that his blood pressure was elevated for approximately two weeks after the search. Armatrue, who was a diabetic, set forth that her blood sugar rose as a result of the incident and continues to fluctuate, and that she remained fearful for her safety, experienced difficulty in sleeping and felt "vulnerable and uncomfortable in [her] own home."

Plaintiffs filed a complaint against thirty individual police officers involved in the search, including Otlowski, and against the Township of Freehold (the Township), the Borough of Freehold (the Borough), Manalapan Township*fn3 and the State Police. Plaintiffs alleged that in the course of executing a search warrant defendants "wantonly and maliciously inflicted damages on the premises." They sought relief against the individual officers for trespass and conspiracy, and from all defendants under the TCA, and under 42 U.S.C.A. § 1983, for violations of their constitutional rights. In addition, they sought relief under the Takings Clauses of the Federal and State constitutions.

The Borough and the police officers employed by the Borough, including Otlowski, moved for summary judgment joined by the Township and the police officers employed by the Township.*fn4 The motion judge granted summary judgment in favor of the individual defendants, and granted partial summary judgment in favor of the Township and the Borough, dismissing all claims except the takings claim.

In May 2009, plaintiffs cross-moved for reconsideration of the grant of partial summary judgment, and to amend their complaint to assert a claim based on the validity of the no-knock provision of the search warrant. These motions were denied.

A trial was conducted against the State Police and the twelve individual State Police officers on all claims, and against the Township and the Borough on the takings claim.

Following trial, the judge granted the Borough's and the Township's motions for judgment, granted the motion for judgment by the individual State Police officers on the basis that they had qualified immunity and entered judgment in favor of plaintiffs for $4,312.16 against the State Police on the takings claim. Plaintiffs appeal the dismissal of their TCA action, and the State Police cross-appeal the judgment on the takings claim.

Plaintiffs' appeal focuses on Otlowski and attacks the "no-knock" warrant, contesting not its issuance, but rather its execution. They assert he was not entitled to qualified immunity, he is personally responsible for the damage associated with the "no-knock" warrant and their proofs satisfied the requirements of the TCA and Section 1983.

Plaintiffs are not consistent in their arguments. In some instances, they appear to challenge the issuance of the "no-knock" provisions of the warrant and elsewhere, to concede its validity and to attack its execution. Since we conclude that the warrant was properly issued including the "no-knock" provision, these seeming contradictions are of no moment.*fn5

II.

We first address the claims under Section 1983. Plaintiffs instituted this civil action under the TCA, and sought damages for violations of their rights to be free from unlawful searches and seizures under Section 1983. As we previously noted, plaintiffs concede that there was probable cause for issuance of a search warrant but contest the no-knock provision and the scope of the warrant, which allowed a search of the entire dwelling. They focus on Section 1983, and we now address that claim.

42 U.S.C.A. ยง 1983 provides in part: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be ...


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