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Cope v. Kohler

United States District Court, D. New Jersey

August 31, 2017


          Mark A. Fury, Esq. Attorney for Plaintiff

          Thomas P. Lihan, Deputy Attorney General New Jersey Office of the Attorney General R.J. Hughes Justice Complex Attorney for Defendant Kohler

          Mary Lou Garty, Esq. THE GARTY LAW FIRM, LLC Attorney for Defendant Fine

          Swati M. Kothari, Esq. Attorney for Defendant Caruso


          JEROME B. SIMANDLE U.S. District Judge.


         This matter comes before the Court on the motions of Defendants Detective Dave Kohler (hereinafter, “Defendant Kohler” or “Detective Kohler”), Officer John Fine (hereinafter, “Defendant Fine”), and Officer Joseph Caruso (hereinafter, “Defendant Caruso”) for summary judgment pursuant to Fed.R.Civ.P. 56(a) in a § 1983 malicious prosecution action brought by Plaintiff Rashid Adowa, formerly known as Demetrius Cope (hereinafter, “Plaintiff”). [Docket Items 86, 91, 93.] For the reasons stated herein, the Court grants Defendants' motions.


         A. Factual Background

         Plaintiff Rashid Adowa is a resident of Burlington County, New Jersey, and has lived predominantly in Burlington City where Defendants Fine and Caruso are police officers. (Pl.'s SMF at ¶ 1.) Defendant David Kohler is a Detective at the Burlington County Prosecutor's Office, and has worked for the Office's Narcotics Task Force since June 2001. (Def. Kohler SMF at ¶ 3.)

         Plaintiff acknowledges his prior history of arrests and run-ins with the law, including charges of assault and possession of controlled drug substances and firearms, all filed against him by the Burlington City Police Department and prosecuted by the Burlington County Prosecutor's Office. (Pl. SMF at ¶ 2.) Specifically, in October 2006, Plaintiff was arrested and indicted on a second-degree weapons charge which stemmed from a police officer's discovery and seizure of a SX Model SKS 762 caliber rifle at Plaintiff's home on July 5, 2006. (Def. Caruso SMF at ¶ 28.)[1]

         In March 2007, a confidential informant (“CI 1551”) provided Detective Kohler and Defendant John Fine of the Burlington City Police Department with information related to a “large-scale cocaine distribution organization operated by [Plaintiff].” (Id. at ¶ 11; Def. Fine SMF at ¶ 3.) CI 1551 indicated that he/she had known Plaintiff to have sold cocaine for a period of ten years. (Def. Fine SMF at ¶ 4.) CI 1551 indicated that (1) two individuals, Plaintiff and Mark McNeil, were distributing cocaine from their residences, (2) Plaintiff had been selling cocaine for a period of over ten years, utilizing an unidentified supply source based in New York City, and (3) that the CI had been purchasing cocaine from Plaintiff at his Burlington Township residence for six months prior, and that Plaintiff had additional residences in Willingboro and possibly Pennsauken. (Def. Kohler SMF at ¶¶ 12-14.)

         Detective Kohler, upon interviewing CI 1551, determined that the CI was “knowledgeable in the jargon used and practices involving the use and distribution of Controlled Dangerous Substances.” (Id. at ¶¶ 15, 19.) Specifically, CI 1551 indicated that when he/she would contact Plaintiff, he/she would use code words such as “tickets” or “tee-shirts' in reference to crack cocaine, and that Plaintiff would change his wireless telephone every few months and purchase pre-paid wireless telephones under fictitious names, both in an effort to thwart law enforcement investigators. (Id. at ¶¶ 16-17.) CI 1551 also informed Detective Kohler that Plaintiff had directed him/her to deal with Mark McNeil at a specific telephone number, and that McNeil was being supplied by Plaintiff personally. (Id. at ¶ 18.) Detective Kohler confirmed CI 1551's familiarity with Plaintiff and McNeil based on his/her identification of certain physical identifiers of McNeil, the identification of unmarked photographs of Plaintiff and McNeil, and the recitation of both Plaintiff and McNeil's criminal history. (Id. at ¶ 20.)

         In March 2007, based on the corroborated information received from CI 1551, Detective Kohler commenced Operation Whirlwind. (Id. at ¶ 21.)[2] CI 1551 made undercover purchases of crack cocaine from McNeil on March 25, 2007 and March 28, 2007. (Id. at ¶ 26.) Then, on April 18, 2007, Detective Kohler made an application for the first of five communications data warrants to a judge of the Superior Court of New Jersey; after reviewing Detective Kohler's supporting Application and Affidavit, the court found probable cause of a narcotics conspiracy, and issued the warrant. (Id. at ¶¶ 27-28.)[3] This warrant and the subsequent renewals resulted in the interception and recording of numerous telephone conversations between Plaintiff and McNeil from July 2007 to August 2007. (Id. at ¶ 30.)

         On August 11, 2007, at approximately 11:45 A.M., an outgoing telephone call from McNeil to an unidentified male was intercepted and recorded. (Id. at ¶ 32.) Detective Kohler believed that McNeil was identifying Plaintiff as a source of narcotics for McNeil's distribution network, indicating that Cope was running low on his supply and should be obtaining an additional supply in the near future, and expressing hop that Cope would get an additional supply of cocaine prior to McNeil and his girlfriend having their baby. (Id. at ¶ 33.) Then, on August 13, 2007, at approximately 2:20 P.M., an outgoing telephone call from McNeil to Plaintiff was intercepted and recorded. (Id. at ¶ 35.) Plaintiff asked McNeil if he “gotta hundred, ” which Kohler interpreted as Plaintiff referring to a previous narcotics transaction with McNeil, and that he wanted 100 grams of cocaine. (Id. at ¶ 36.) On a later intercepted call that day, at 7:22 P.M., Plaintiff stated “bring I, bring that with you, ” which Detective Kohler interpreted to mean that Plaintiff was telling McNeil that he was prepared to conduct the narcotics transaction negotiated during their earlier telephone call, and that the parties agreed that it would be conducted at the hospital. (Id. at ¶¶ 39-40.)

         Then, on August 16, 2007, at approximately 8:18 P.M., an outgoing call from McNeil to Plaintiff was intercepted, where McNeil confirmed that he would be taking Plaintiff somewhere, which Detective Kohler believed to be the airport. (Id. at ¶ 41.) A check with the DEA's Airport Group confirmed that on August 17, 2007, Plaintiff and two others flew from LaGuardia International Airport to Dallas-Fort Worth International Airport, with a final destination of El Paso International Airport. (Id. at ¶ 43.) An intercepted call on August 17 at 12:17 P.M. from Plaintiff to an unknown individual indicated to Detective Kohler that there would be a delivery of cocaine to Plaintiff from an unknown supplier in Juarez, Mexico. (Id. at ¶ 47-48.) On August 19, 2007, McNeil called Plaintiff, and according to Detective Kohler's interpretation, McNeil was questioning Plaintiff as to whether he has obtained the cocaine, and Plaintiff was indicating that he had and was returning to New Jersey. (Id. at ¶¶ 55-56.)

         During Plaintiff's journey from Texas to New Jersey, investigators put a GPS “ping” on Plaintiff's cell phone, and observed an associate, Demetrius Lawful, removing two black duffle bags from the back seat of his car and placing them into the bed of Plaintiff's red Chevrolet pickup truck. (Id. at ¶¶ 56, 62.) Lawful exited with one duffel bag at a residence in Willingboro, NJ, and Plaintiff went to a location in Pennsauken, N.J. carrying the other duffel bag. (Id. at ¶¶ 63-64.)

         On August 24, 2007, a warrant authorizing the search of both Plaintiff and his residence in Pennsauken was reviewed and issued by a judge of the Superior Court of New Jersey. (Id. at ¶ 67.) During the search, illegal weapons were seized, and as a result, Plaintiff was charged with the federal crime of illegal possession of weapons by a person not permitted to own a weapon. (Def. Fine SMF at ¶¶ 15, 31.) Plaintiff plead guilty to this charge on May 11, 2010, and was sentenced to a term of seventy months in federal prison. (Id. at ¶¶ 16, 34.)

         On September 18, 2008, a Burlington County Grand Jury returned an indictment charging Plaintiff, amongst eight other co-defendants, with second-degree conspiracy to distribute/possess with intent to distribute cocaine, in contravention of N.J.S.A. 2C:35-a(1) and 2C:35-5b(2). (Id. at ¶ 78.) Detective Kohler conducted additional proffer sessions with McNeil in the presence of his attorney on March 17, 2008 and May 2, 2008. (Id. at ΒΆΒΆ 79, 83.) On October 14, 2011, while Plaintiff was still incarcerated for the federal weapons, the ...

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