TONY MITCHNER VS. TROOPER MARK MARCHATERRE (L-8715-17, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4131-19
TONY MITCHNER,
Plaintiff-Appellant,
v.
TROOPER MARK
MARCHATERRE, in his
individual capacity, and
DSG TIMOTHY MEYERS,
in his individual capacity,
Defendants-Respondents.
___________________________
Submitted May 17, 2021 – Decided June 4, 2021
Before Judges Fasciale and Mayer.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Docket No. L-8715-17.
Franzblau Dratch, PC, attorneys for appellant (Brian M.
Dratch, on the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Donna Arons, Assistant Attorney General,
of counsel; Francis A. Raso, Deputy Attorney General,
on the brief).
PER CURIAM
Plaintiff Tony Mitchner appeals from a June 5, 2020 order granting
summary judgment in favor of defendant Trooper Mark Marchaterre 1 and
dismissing his claims in their entirety. We affirm.
In June 2014, New Jersey State Police officers Marchaterre and Meyers
met with a confidential informant (CI). The CI previously provided reliable
information to the police, resulting in successful narcotics investigations and
multiple drug arrests. According to the CI, an individual named "Slim" was
selling controlled dangerous substances (CDS) out of a three-family home in
Newark. The CI described Slim "as a medium height black male approximately
. . . 150-160 pounds, with dark color skin and with short hair" who lived in an
apartment on the first floor of the home.
Based on this information, Marchaterre and Meyers arranged for the CI to
purchase CDS from Slim as part of a controlled purchase. The officers
witnessed the CI meet with a black male, matching Slim's description, to
1
Plaintiff stipulated to dismissal of all claims against defendant DSG Timothy
Meyers, and he is not a party on appeal.
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purchase crack cocaine. According to the CI, Slim kept drugs in the living room
of the first-floor apartment.
Marchaterre and Meyers conducted three more controlled purchases
through the CI. During the second controlled purchase, the CI advised the
officers that Slim "ran up the stairs to the second floor" and returned with crack
cocaine. The officers conducted a third controlled purchase to confirm whether
the drugs were kept on the first or second floor of the home. Marchaterre and
Meyers saw Slim call to the CI from a second-floor window before going
downstairs to let the CI inside. Slim returned to the second floor to retrieve
drugs for the CI. During the fourth controlled purchase, Slim stuck his head out
a first-floor window and asked how much the CI needed to buy. After the CI
replied, Slim appeared on the front porch with the drugs.
Based on the information from the controlled purchases, the officers
determined the CI was credible. Marchaterre found probable cause to believe
Slim conducted an illegal drug operation from the first and second floors of the
home.
Marchaterre's findings were memorialized in two affidavits. The
affidavits requested two warrants to search the first and second floors of the
Newark home "[i]ncluding all occupants therein, who [we]re deemed to be in
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control of the premises and/or reasonably believed to be involved in criminal
activity," and seize all CDS and related evidence. On June 26, 2014, a judge
issued the requested search warrants.
On June 30, 2014, the officers executed the search warrants. While
securing the home, the officers encountered plaintiff and a female friend on the
second floor of the home. The officers found plaintiff walking from the kitchen
to his second-floor bedroom, carrying eggs and toast, and the female friend
inside one of the bedrooms. Plaintiff immediately told officers, "She had
nothing to do with it." In an unsolicited statement to the police, plaintiff said
the female friend was his "company" and "spent the night" but did not live in
the house.2
After securing the premises, the officers performed "a methodical search
of both the first and second floor residences" and uncovered multiple weapons,
ammunition, drug paraphernalia, and drugs. Plaintiff was arrested for
possessing the items found in and around his second-floor apartment. Slim was
not in the home during the officers' search.
2
Plaintiff paid $400 per month to the landlord of the three-family house for the
right to occupy a middle bedroom on the second floor of the home. Plaintiff had
access to the second floor living room and kitchen and the common areas within
the building.
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The matter was presented to a grand jury on September 8, 2014. Before
the grand jury, Marchaterre described the events leading to plaintiff's arrest. He
also told the grand jury about plaintiff's spontaneous statement that the female
friend "had nothing to do with anything . . . . She was just sleeping over." Based
on plaintiff's statement, Marchaterre explained "[plaintiff] took possession of all
the items in the house," and the officers decided not to charge the female friend.
On September 15, 2014, the grand jury returned an indictment charging
plaintiff with three counts of second-degree possession of a firearm, N.J.S.A.
2C:39-7(b).
In July 2015, the prosecutor determined plaintiff's criminal case would
have to be re-presented to the grand jury because plaintiff was never charged
with possessing an assault weapon, a high-capacity magazine, or CDS. On
September 19, 2015, the grand jury returned a superseding indictment charging
plaintiff with second-degree possession of a handgun without a permit, N.J.S.A.
2C:39-5(b) (count one); second-degree possession of an assault firearm without
a license, N.J.S.A. 2C:39-5(f) (count two); third-degree possession of a rifle or
shotgun without a firearms purchaser identification card, N.J.S.A. 2C:39-5(c)(1)
(count three); third-degree possession of CDS, N.J.S.A. 2C:35-10(a) (count
four); third-degree possession of CDS with the intent to distribute, N.J.S.A.
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2C:35-5(a)(1); (b)(3) (count five); fourth-degree possession of drug
paraphernalia with the intent to distribute, N.J.S.A. 2C:36-3 (count six); fourth-
degree possession of hollow nose or dum-dum bullets, N.J.S.A 2C:39-3(f)
(count seven); and fourth-degree possession of a large capacity ammunition
magazine, N.J.S.A. 2C:39-3(j) (count eight).
On August 10, 2016, the prosecutor recommended dismissal of all charges
against plaintiff. The prosecutor concluded two counts "must be dismissed due
to the exemption from the statute which allows for any person to keep a[nd]
carry a handgun/rifle about his residence" and "the remaining counts of the
[i]ndictment must be dismissed because the items recovered were found in
locations accessible to multiple occupants within the residence." The prosecutor
determined "the State could not sustain its burden beyond a reasonable doubt
and a dismissal of the [i]ndictment in its entirety [wa]s appropriate." On August
22, 2016, the charges against plaintiff were dismissed and he was released after
spending twenty-six months in jail.
On December 11, 2017, plaintiff filed a civil complaint against
Marchaterre and Meyers, alleging wrongful arrest, false imprisonment, and
malicious prosecution pursuant to the New Jersey Civil Rights Act (NJCRA),
N.J.S.A. 10:6-1 to -2, based on his wrongful incarceration.
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On December 29, 2019, Marchaterre and Meyers moved for summary
judgment, arguing plaintiff's claims were procedurally and substantively
deficient. Plaintiff admitted his false arrest claim was filed beyond the two-year
statute of limitations under N.J.S.A. 2A:14-2. After dismissing his claims
against Meyers, plaintiff proceeded on his false imprisonment and malicious
prosecution claims against Marchaterre.
After hearing counsels' arguments, the motion judge issued a June 5, 2020
order and written decision granting summary judgment to Marchaterre. The
judge determined Marchaterre had probable cause to believe plaintiff committed
the offenses. Therefore, plaintiff was unable to prevail as a matter of law on his
false arrest and malicious prosecution claims. The judge also found plaintiff's
false imprisonment claim was untimely.
On appeal, plaintiff claims the judge erred in dismissing his claim for false
imprisonment as time barred because the two-year statute of limitations
commenced upon the date of his release from prison rather than the date of his
indictment. Additionally, plaintiff contends the judge erred in granting
summary judgment on his malicious prosecution claim because there were
genuine issues of material fact. We disagree.
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We review a grant of summary judgment using the same standard that
governs the motion judge's decision. RSI Bank v. Providence Mut. Fire Ins.
Co., 234 N.J. 459, 472 (2018) (citing Bhagat v. Bhagat, 217 N.J. 22, 38 (2014)).
Summary judgment will be granted when "the competent evidential materials
submitted by the parties," viewed in the light most favorable to the non -moving
party, show that there are no "genuine issues of material fact" and that "the
moving party is entitled to summary judgment as a matter of law." Grande v.
Saint Clare's Health Sys., 230 N.J. 1, 24 (2017) (quoting Bhagat, 217 N.J. at 38);
accord R. 4:46-2(c)). "An issue of material fact is 'genuine only if, considering
the burden of persuasion at trial, the evidence submitted by the parties on the
motion, together with all legitimate inferences therefrom favoring the non -
moving party, would require submission of the issue to the trier of fact.'"
Grande, 230 N.J. at 24 (quoting Bhagat, 217 N.J. at 38). We owe no special
deference to the motion judge's legal analysis. RSI Bank, 234 N.J. at 472 (citing
Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co., 224 N.J. 189, 199
(2016)).
We first address plaintiff's claim the judge erred in dismissing his
malicious prosecution claim because there were material factual disputes
precluding the entry of summary judgment. Plaintiff claims he provided
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sufficient evidence Marchaterre acted with malice and lacked probable cause to
arrest him. Plaintiff also claims Marchaterre misrepresented plaintiff's pre-
arrest statements regarding his female friend when the officer testified during
the grand jury proceeding.
Malicious prosecution arises when a person "recklessly institutes criminal
proceedings without any reasonable basis." Lind v. Schmid, 67 N.J. 255, 262
(1975). To establish a claim for malicious prosecution, a party must establish:
"(1) a criminal action was instituted by [the] defendant against [the] plaintiff;
(2) the action was motivated by malice; (3) there was an absence of probable
cause to prosecute; and (4) the action was terminated favorably to the plaintiff."
LoBiondo v. Schwartz, 199 N.J. 62, 90 (2009) (citing Lind v. Schmid, 67 N.J.
255, 262 (1975)). "The essence of the cause of action is lack of probable cause,
and the burden of proof rests on the plaintiff. The plaintiff must establish a
negative, namely, that probable cause did not exist." Lind, 67 N.J. at 262-63.
Significantly, "probable cause is an absolute defense to . . . false arrest, false
imprisonment, and malicious prosecution claims." Wildoner v. Borough of
Ramsey, 162 N.J. 375, 389 (2000).
Here, there was sufficient probable cause to arrest and prosecute plaintiff
for the crimes. There were several controlled purchases of suspected CDS in
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the building where plaintiff resided. The CI described the controlled purchases,
indicating the individual selling the drugs ascended to the second floor of the
three-family home and then returned to the first floor with the drugs.
In conducting a search pursuant to lawfully issued warrants, the officers
found plaintiff returning to his bedroom after preparing food in a shared kitchen
on the second floor of the house. Plaintiff told the officers he lived on the second
floor of the home and had access to common areas throughout the house. The
officers discovered drugs, drug paraphernalia, and ammunition in the common
areas. Plaintiff did not dispute these facts.
Because plaintiff lived on the second floor of the home and accessed
common areas within the house, it was reasonable for Marchaterre to assume
plaintiff had knowledge of, and control over, the weapons and drugs found on
the second floor and in the common areas and, thus, possessed the illegal items.
See State v. Spivey, 179 N.J. 229, 236-37 (2004) (citing State v. Schmidt, 110
N.J. 258, 270 (1988)) ("A person constructively possesses an object when,
although he lacks 'physical or manual control,' the circumstances permit a
reasonable inference that he has knowledge of its presence, and intends and has
the capacity to exercise physical control or dominion over it during a s pan of
time."). Based on these uncontroverted facts, Marchaterre "reasonably believed
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that [p]laintiff had knowledge of the illicit contents of the apartment's common
areas, had access to such contents, and exercised dominion and control over such
areas" sufficient to establish probable cause "for the institution of proceedings
against [p]laintiff."
We reject plaintiff's argument probable cause was limited to arrest of Slim
and no other occupants of the house. The affidavits submitted in support of the
search warrants established probable cause to believe there were drugs being
distributed from the home without specific reference to Slim. The search
warrants expressly authorized the officers to seize "[a]ny and all controlled
dangerous substances, as well as any other items which would indicate
additional suspects" and allowed the officers to enter the home to recover
unlawful items. Based on the language in the search warrants, there would have
been probable cause to arrest anyone in the three-family home provided there
was evidence linking the individual to the recovered items.
Here, plaintiff was in the home during the officers' search and admitted
he had access to areas in the home where drugs and weapons were found.
Therefore, the officers had probable cause connecting plaintiff to the seized
items.
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We also reject plaintiff's contention Marchaterre's grand jury testimony
and deposition testimony were contradictory and, therefore, Marchaterre
materially misled the grand jury. Having reviewed Marchaterre's grand jury and
deposition testimony, we disagree the statements were contradictory. Even if
the statements were contradictory, Marchaterre's statements articulated probable
cause to support plaintiff's arrest based on the discovery of drugs and weapons
in the home and plaintiff's admitted access to areas where the contraband was
found.
Nor did plaintiff present any evidence prosecuting him for the drugs and
weapons charges was actuated by malice. Plaintiff never spoke to Marchaterre
or Meyers prior to his arrest on June 30, 2014. Nor had plaintiff spoken to either
officer after his arrest. In fact, plaintiff could not recall if Marchaterre and
Meyers were the arresting officers. Because there was probable cause to arrest
plaintiff, and plaintiff failed to demonstrate his arrest was motivated by malice,
plaintiff could not sustain a cause of action for malicious prosecution, and the
motion judge properly granted Marchaterre's motion for summary judgment.
We next consider dismissal of plaintiff's false imprisonment claim based
on the expiration of the two-year statute of limitations. Plaintiff claims the
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statute of limitations for his false imprisonment claim commenced upon his
release from jail and therefore his complaint was timely. We disagree.
"False arrest, or false imprisonment, is the constraint of the person without
legal justification." Mesgleski v. Oraboni, 330 N.J. Super. 10, 24 (App. Div.
2000) (citing Pine v. Okzewski, 112 N.J.L. 429, 431 (E.&A. 1934)). To
establish a claim for false imprisonment, a party must demonstrate: "(1) 'an
arrest or detention of the person against his or her will' and (2) 'lack of proper
legal authority or legal justification.'" Leang v. Jersey City Bd. of Educ., 198
N.J. 557, 591 (2009). "[A]n action for false imprisonment must be brought
within two years . . . ." Earl v. Winne, 14 N.J. 119, 132 (1953); see also N.J.S.A.
2A:14-2 ("Except as otherwise provided by law, every action at law for an injury
to the person caused by the wrongful act, neglect or default of any person within
this State shall be commenced within two years next after the cause of any such
action shall have accrued . . . .").
Plaintiff relies on several out-of-state cases in asserting a claim for false
imprisonment commences when the unlawful detention ceases. See, e.g.,
O'Fallon v. Pollard, 427 N.W.2d 809, 811 (N.D. 1988) (citing Adler v. Beverly
Hills Hosp., 594 S.W.2d 153, 155 (Tex. Civ. App. 1980)) ("False imprisonment
is considered a continuing tort which commences at the time of the false arrest
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and continues until the unlawful detention ceases."); Belflower v. Blackshere,
281 P.2d 423, 424 (Okla. 1955) ("As a general rule an action for false
imprisonment accrues at, and limitations run from, termination of the
imprisonment . . . ."); Collier v. Evans, 406 S.E.2d 90, 92 (Ga. Ct. App. 1991)
(quoting Reese v. Clayton Cnty., 363 S.E.2d 618, 620 (Ga. Ct. App. 1987))
("The action must be brought within two years of its accrual, . . . which is from
the release from imprisonment.").
Other states opt for an earlier accrual date. See, e.g., Freeman v.
Holyfield, 179 So.3d 101, 105 (Ala. 2015) (quoting Wheeler v. George, 39 So.3d
1061, 1084 (Ala. 2009)) (citing Jennings v. City of Huntsville, 677 So.3d 228,
230 (Ala. 1996) ("A claim of false imprisonment accrues on the date of arrest.");
Stone v. Wright, 133 N.E.3d 210, 216 (Ind. Ct. App. 2019) (rejecting the
"continuing wrong" theory and holding the statute of limitations runs from when
plaintiff knew or could have discovered the injury).
The United States Supreme Court determined the date of accrual for a
false imprisonment claim under federal law, 42 U.S.C. § 1983, "commences to
run, when the wrongful act or omission results in damages . . . even though the
full extent of the injury is not then known or predictable." Wallace v. Kato, 549
U.S. 384, 391 (2007). Thus, the United States Supreme Court determined the
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statute of limitations on a false imprisonment claim does not begin upon release
from custody but rather when legal process is initiated based on the definition
of false imprisonment as detention without legal process. Id. at 389-90. Once
legal process has begun, "any damages recoverable must be based on a malicious
prosecution claim and on the wrongful use of judicial process rather than
detention itself." Id. at 390.
The motion judge properly determined plaintiff's false imprisonment
claim was untimely, finding "a cause of action generally accrues 'when facts
exist which authorize one party to maintain an action against another'" and false
imprisonment does not require a showing "that an underlying criminal action
has terminated in his [or her] favor." We are unpersuaded by plaintiff's reliance
on case law from other states because the statutes governing claims for false
imprisonment in those states have no bearing on the applicable New Jersey
statute.
Here, plaintiff's false imprisonment claim accrued, at the latest, upon the
issuance of the superseding indictment. Since plaintiff's complaint was filed
more than two years after plaintiff's superseding indictment, his false
imprisonment claim was untimely.
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Even if the two-year statute of limitations commenced upon plaintiff's
release from jail, which we reject, there was overwhelming evidence of probable
cause, entitling Matchaterre to summary judgment as a matter of law.
Affirmed.
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