ZYGMUNT ORLOWSKI, et al. v. BOROUGH OF SAYREVILLE

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2710-05T12710-05T1

ZYGMUNT ORLOWSKI, JUDITH

ORLOWSKI, LEONARD ORLOWSKI

and MEGHAN ORLOWSKI,

Plaintiffs-Appellants,

v.

BOROUGH OF SAYREVILLE

(improperly pleaded as

"Township of Sayreville"),

SAYREVILLE POLICE DEPARTMENT,

SERGEANT JOHN ZEBROWSKI,

DETECTIVE JACK FITZSIMMONS, and

SAYREVILLE POLICE CHIEF JOHN B.

GARBOWSKI,

Defendants-Respondents,

and

ASSISTANT SUPERINTENDENT DENNIS

FYFFE, DEAN OF STUDENTS LEE

SCHNEIDER and SAYREVILLE

BOARD OF EDUCATION,

Defendants.

________________________________

 

Argued May 2, 2007 - Decided

Before Judges Sabatino and Lyons.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-1851-03.

Paulette L. Pitt argued the cause for appellants (Fusco & Macaluso, attorneys; Ms. Pitt, on the brief).

William T. Connell, Gary S. Spagnola and Michael John Stone argued the cause for respondents (Dwyer, Connell and Lisbona, attorneys for respondents Borough of Sayreville, Sayreville Police Department and Sayreville Police Chief John B. Garbowski; Golden, Rothschild, Spagnola, Lundell, Levitt & Boylan, attorneys for respondent Sergeant John Zebrowski; and The Stone Law Group, attorneys for respondent Detective John Fitzsimmons; Mr. Connell, Mr. Spagnola and Mr. Stone, on the joint brief).

PER CURIAM

This civil action arises out of the warrant-based search of a residence, and the ensuing arrest of a young man who resided there, plaintiff Zygmunt Orlowski, by members of the Sayreville Police Department. As the result of those police actions, plaintiff was prosecuted for certain weapons offenses and eventually admitted into the Pretrial Intervention Program (PTI). Subsequently, plaintiff, his mother Judith Orlowski, and two other members of the Orlowski family filed a complaint in the Law Division against the Township of Sayreville and various members of the Sayreville police force. The lawsuit alleged violations of their federal and state constitutional rights, as well as other common-law claims, arising out of the search of their premises and plaintiff's arrest. After certain claims were voluntarily dismissed, the Law Division judge granted defendants summary judgment on the remaining claims in an order dated December 16, 2005.

Plaintiff appeals the December 16, 2005 order, contending that the motion judge prematurely and improperly dismissed his claims. We affirm.

I.

On March 10, 2001, Robert Mickiewicz, at the time a twenty-year-old college student, contacted the Sayreville Police Department and informed Patrolman Matthew O'Such that he was concerned about the behavior of his friend, plaintiff Zygmunt Orlowski. Specifically, Mr. Mickiewicz informed Officer O'Such that he believed plaintiff was going to carry out specific threats that he had made to use his personal firearms and military equipment. The following day, March 11, Mr. Mickiewicz reported his concerns about plaintiff to the Newark office of the Federal Bureau of Investigation (FBI). Concurrently, Mr. Mickiewicz also contacted the United States Army in Fort Monmouth, and advised the Army of his belief that plaintiff had improperly obtained gas masks, camouflage clothing, grenade detonators, and other military equipment from James Gilligan, an active member of the United States Marine Corps.

Continuing with his efforts to address the potential danger posed by plaintiff, Mr. Mickiewicz went to the Sayreville War Memorial High School on March 12. There he informed Principal James Brown and Vice Principal Mike Leonardo that plaintiff had made threats to him about going to the school with firearms to shoot people. In response, the high school authorities contacted the Sayreville Police Department, which immediately dispatched officers, including defendant Detective Jack Fitzsimmons, to the high school. Upon arrival, Detective Fitzsimmons interviewed Mr. Mickiewicz, who informed him that plaintiff, who is nicknamed "Ziggy," had been "acting very strange lately." At the time, plaintiff was eighteen years of age.

Specifically, Mr. Mickiewicz advised Detective Fitzsimmons that on March 5 and 6, 2001, plaintiff had made comments about planning to go into the high school with an AR15 weapon loaded with thirty-round capacity magazines. Mr. Mickiewicz stated that prior to those recent dates plaintiff had made such comments often. Additionally, Mr. Mickiewicz advised the detective that plaintiff often had stated that the school board, certain students, and the high school's former principal had "ruined his life."

In the course of the interview, Detective Fitzsimmons discovered that earlier that day, March 12, Mr. Mickiewicz himself had weapons removed from his possession by Detective Bill Cheeseman of the South Amboy Police Department. That confiscation had occurred in response to a report from plaintiff that Mr. Mickiewicz had been "acting strange." Accordingly, Detective Fitzsimmons specifically asked if Mr. Mickiewicz was making the current report against plaintiff in retribution for those actions. Mr. Mickiewicz denied such a motivation, explaining that he had reported plaintiff's suspicious behavior to the Sayreville Police Department, the FBI, and the military on March 10, 2001, two days prior to his weapons being removed. Mr. Mickiewicz further told Detective Fitzsimmons that he believed plaintiff had made a report against him in order to ensure that Mr. Mickiewicz would be unarmed. Mr. Mickiewicz feared that plaintiff would now "come after him."

Based on this information, Detective Fitzsimmons requested that Mr. Mickiewicz come to the Sayreville police headquarters to make a formal statement. Mr. Mickiewicz complied. Detective Fitzsimmons then requested a Sayreville police sergeant to have police units patrol the parking lot and areas surrounding the high school, in an effort to stop plaintiff in any attempt to carry out his threats that day.

Upon arrival at the police station, Detective Fitzsimmons advised a co-defendant, Detective Sergeant John Zebrowski, of the information that he had received from Mr. Mickiewicz. Both detectives proceeded with Mr. Mickiewicz to a conference room, where he issued a formal statement.

In his police statement, Mr. Mickiewicz advised that he and plaintiff, along with a mutual friend, Brian Bender, had traveled on March 10 in plaintiff's car to a gun store in Long Island, New York. Plaintiff allowed Mr. Mickiewicz to drive his car throughout the journey. At the gun store, plaintiff purchased a "Mauser 8mm" firearm and "1000 rounds of 223, [and] between 50 and 80 rounds of 8mm" ammunition. Bender also purchased a Mauser firearm. Upon leaving the gun store, Mr. Mickiewicz, Bender, and plaintiff attempted to patronize a bar in Long Island as well as a bar in Brooklyn, but discovered that both bars were closed.

According to Mr. Mickiewicz, the threesome traveled through Brooklyn, Queens, and Manhattan, where plaintiff began to complain that he hated "the city and everything else." Mr. Mickiewicz and plaintiff then began to argue over personal matters. In the course of that argument, plaintiff allegedly uttered, "if I put my 8mm [gun] to your head[,] would you still be wise like you're being right now[?]" and "he [plaintiff] can take [Mr. Mickiewicz] down." At the time plaintiff reportedly made those comments, the car was still moving, with Mr. Mickiewicz driving, plaintiff in the front passenger seat, and Bender in a back seat with the ammunition. The guns were in the trunk.

In response to plaintiff's threatening exclamation, Mr. Mickiewicz stated that he would "restrain" plaintiff and call the police if he "ever threatened to put his gun to [Mr. Mickiewicz's] head or beat [him] up." Mr. Mickiewicz contended that plaintiff became quiet and calm, until later in the drive about ten minutes from the New Jersey border when Mr. Mickiewicz turned on the radio. At that point, plaintiff demanded that Mr. Mickiewicz get out of the vehicle.

Mr. Mickiewicz refused, advising plaintiff that "when we get to [New] Jersey I will get out and call my mother and I will go home." Mr. Mickiewicz stated that plaintiff continued screaming, attempted to turn off the ignition while Mr. Mickiewicz was driving, attempted to punch Mr. Mickiewicz, and attempted to strangle Mr. Mickiewicz just north of the Lincoln Tunnel, all as the vehicle was moving.

At that point, Mr. Mickiewicz stated that Bender reached from his seat to try to restrain plaintiff, while Mr. Mickiewicz "pushed [plaintiff] down harder and slammed his head into [Mr. Mickiewicz's] knee." Plaintiff then attempted to pull Mr. Mickiewicz's foot off of the brake. At this point, Mr. Mickiewicz contended that plaintiff got out of the car and fled. Mr. Mickiewicz parked plaintiff's car in Manhattan across the street from the Jacob Javits Center, and he and Bender got out of the car and went into the building. Mr. Mickiewicz stated that he was initially afraid to leave the building, because plaintiff's gun was still in the car trunk. Once Bender went outside and ensured that plaintiff was not nearby, the two men returned to the vehicle to wait for assistance.

According to Mr. Mickiewicz, he then received a call from his mother, Mary Lou Mickiewicz. Mrs. Mickiewicz had received a call from plaintiff about the events in New York. As a result, Mrs. Mickiewicz advised her son that plaintiff would be taking a cab to the Jacob Javits Center to retrieve his vehicle.

When plaintiff arrived, Mr. Mickiewicz was reluctant to return his keys because he perceived that plaintiff was still "irrational and out of control." Mr. Mickiewicz stated that he felt that if plaintiff were able to get to his weapon at the time, he would have carried out his earlier threats. Eventually, however, Mr. Mickiewicz gave plaintiff the ignition key only, keeping the keys to the car trunk and door locks. Plaintiff drove off, promising that he would drop off the gun and ammunition Bender had purchased earlier that day at Bender's home.

Mr. Mickiewicz further noted in his police statement that plaintiff had made many threats, both that day and in the past, about hurting other people. Specifically, Mr. Mickiewicz stated that:

Ziggy [plaintiff] always makes threats. Ziggy makes so many threats it becomes common to hear them and we really don't pay attention to him any more.

. . . .

The most recent one that he has mentioned was the threat towards his mother and his sister because it was Lent and he was supposed to give up something for Lent and his mother hid the [T]winkies on him and he threatened to shoot his mother and sister. He's made many threats against Sayreville High School.

Detective Fitzsimmons asked Mr. Mickiewicz to explain this further. He responded:

[W]hat comes to mind is when [plaintiff] said if I take my AR15 with 230 round magazines ammunition, 223, what damage could that do [?]

. . . .

I said to him is it worth going to jail over it and he said at least I'll have like five minutes of fame. He always refers to, somebody aggravates him. . . . he tried going out with this girl and stalked her, he threatened to shoot her. I don't remember the kid['s] name but somebody with a fund for third world country[,] whatever.

. . . .

[Plaintiff] was on the Green Print Paper in Rutgers University. That's Rutger[s'] newspaper. He was the photographer. One day he went over to the editor's house for like a little discussion like what they were going to do for the year and the editor asked him to bring over his rifle. That's what Ziggy told me . . . . Ziggy brought it over and after that night the editor from the newspaper said Ziggy threatened to use the rifle against him and people on the Green Print because they were doing things he didn't want them to do and he left the Green Print and then either two days or a week following that he was like why don't we take my bow and arrow, there's woods fifty yards away from the Green Print window and shoot an arrow through and see how they react when I do that.

Mr. Mickiewicz stated that plaintiff made those prior threats to the student newspaper in approximately October or November 2000.

Mr. Mickiewicz acknowledged that he had never actually seen the bow and arrow, but indicated that plaintiff had claimed receiving it as a gift from his father. Mr. Mickiewicz stated that he had seen other weapons owned by plaintiff, including an "AR15, SKS, 303 and the Mauser 8mm and a .38 Special," but that plaintiff had told him none of those weapons were fully automatic. Mr. Mickiewicz explained that "all [of plaintiff's] rifles, the SKS, the Mauser and the 303," were military weapons. The "surplus rifles" had been previously used "in the war," while the AR15 was a target rifle that plaintiff had purchased new. The .38 caliber special handgun had previously belonged to plaintiff's father. Mr. Mickiewicz further stated that plaintiff typically stored those weapons in his bedroom in a gun cabinet. However, at times when plaintiff was concerned that someone might "come and take them away from him," he would store the weapons at his grandmother's home or sister's home. Mr. Mickiewicz stated that he had observed plaintiff's guns at all three locations on various occasions.

Mr. Mickiewicz reported that plaintiff had substantial ammunition for those weapons, including "a case of 223, 1000 rounds," "a case of 76239 for the SKS," between 100 and 500 rounds for the 303, between 50 and 80 rounds for the Mauser 8mm, and "over 1000" rounds for the ".38 Special." Mr. Mickiewicz opined that plaintiff was very proficient with the weapons and was "a very good shot."

In addition to the weaponry, Mr. Mickiewicz reported that plaintiff possessed various types of military equipment, which he had received from Gilligan. Mr. Mickiewicz stated that he had seen thirty-round magazines for an M16 and an AR15, gas masks, camouflage clothing, jackets, duffle bags, approximately fifty grenade detonators, and 50-caliber machine gun ammunition.

Mr. Mickiewicz also related an incident in which plaintiff attended a friend's graduation party, where he had brought a 30-caliber machine gun, as well as two boxes of belt ammunition. While Mr. Mickiewicz conjectured that the ammunition might have been of "DeMils" type, which would have indicated that the firing plate had been removed and replaced with a blank plate, he was unsure what caliber the ammunition was.

Mr. Mickiewicz stated that he first heard plaintiff make threats regarding Sayreville high school during November or December 2000, though most of them had not been as detailed as the recent threat regarding the AR15. Mr. Mickiewicz explained that plaintiff had an animosity or hatred towards the school that was apparent every time he spoke about it, approximately once or more a week. Mr. Mickiewicz stated that plaintiff believed that "Sayreville High School was always against him" and "always wanted to get rid of him," that the Board of Education was "always against him" and that the students at the school "always picked on him . . . [and] always were cruel to him[.]" Mr. Mickiewicz noted that he had not attended that high school but his conception of plaintiff's relationship with the school came from plaintiff's own statements, as well as statements by other students that went to high school with him. Mr. Mickiewicz also recalled that plaintiff had made negative comments about the school's former principal, certain teachers, certain members of the Board of Education, a female student, and another student who "was on the fund raiser with [plaintiff]."

As to plaintiff's irrational behavior, Mr. Mickiewicz stated that in the course of their relationship, it was common for the plaintiff to "talk" in a threatening manner but that there had been "nothing to reinforce" the chance that plaintiff would carry out his threats. Mr. Mickiewicz stated that plaintiff's behavior in the vehicle on March 10 replicated plaintiff's attitude when he would discuss "people [who] had hurt him in the past," by breaking his heart or morale, or by doing something that offended the plaintiff's morals.

Mr. Mickiewicz told the police that he became frightened on March 10 because plaintiff had never acted this way towards him before and that it was triggered simply by his driving plaintiff's vehicle through New York City, a place which plaintiff did not like. Mr. Mickiewicz was concerned because plaintiff's "flipping out" showed "what kind of person [plaintiff] is and what he's capable of doing." Mr. Mickiewicz stated that plaintiff would "rather be feared than loved" and acted the way he did because he wanted to scare and impress people. Mr. Mickiewicz also stated that plaintiff did not like to be around large groups of people, thought everyone is "against him," feared nuclear attacks, and expressed this fear by vividly detailing possible attacks on cities and "where he has to be to get away from it in time."

Mr. Mickiewicz stated that plaintiff's only hobby and interest was the military, and that plaintiff collected various military memorabilia including military jeeps, a Hummer, a Vietnamese jeep from the Vietnam War, and approximately four World War II "Willys." Despite this interest, Mr. Mickiewicz stated that plaintiff has stated that he would not enlist in the military "because they won't let him play with the toys he wants to," meaning that plaintiff would not be able to fire weapons and drive Hummers "like he wants to."

Based on these insights derived from his close relationship with plaintiff, Mr. Mickiewicz indicated that he feared that plaintiff would carry out the threats made in his vehicle on March 10 if he had been able to access his weapon. For that reason, Mr. Mickiewicz explained that he had contacted the Sayreville police on March 10, relaying his concerns to two officers at about 11:00 p.m. that evening. Additionally, Mr. Mickiewicz reaffirmed in his formal statement that he had contacted the FBI and the United States Army on March 11. He also noted that he had attempted unsuccessfully to contact the Marine Corps. Mr. Mickiewicz asserted that he did all of this because he had feared for his life.

Mr. Mickiewicz noted that his belief that plaintiff intended to carry out his recent threats had been reinforced after speaking with Detective Bill Cheeseman of the South Amboy Police Department on the morning of March 12. Mr. Mickiewicz represented that Detective Cheeseman is known to be a friend and neighbor of plaintiff and his family. The detective indicated that he had received an accusation that Mr. Mickiewicz had withheld information on his application for a firearms identification card, specifically that Mr. Mickiewicz was taking certain medication. Mr. Mickiewicz thereupon turned in his firearms, ammunition, and firearms identification card to Detective Cheeseman. The detective informed him that the police would keep them until they received written confirmation from Mr. Mickiewicz's doctor that he was capable of possessing the weapons without endangering anyone.

During the formal stationhouse interview, Detective Fitzsimmons again asked Mr. Mickiewicz if he was making his statements about plaintiff in retaliation for plaintiff's actions. Mr. Mickiewicz again denied such a motive, pointing out that he had reported plaintiff's recent behavior to the police, the FBI, and the Army prior to being contacted by Detective Cheeseman.

At the end of his police statement, Mr. Mickiewicz summarized that plaintiff was in possession of multiple weapons and had "enough anger built up inside him" and would likely "do damage to whoever, the school, [Mr. Mickiewicz]." Mr. Mickiewicz expressed a belief that he had hurt plaintiff's pride by "holding him down in his car," and that the episode had provided plaintiff with motivation for the threats. He further restated his belief that plaintiff intentionally "got [Mr. Mickiewicz'] guns taken away" as part of a plan to "come against [him] because [he's] unarmed now" and unable to retaliate.

Mr. Mickiewicz signed his police statement at approximately 4:52 p.m. on March 12, 2001.

While interviewing Mr. Mickiewicz, Detective Fitzsimmons and Detective Zebrowski contacted his mother, Mrs. Mickiewicz. She likewise came to the Sayreville police headquarters to give a formal statement. In her own statement, Mrs. Mickiewicz asserted that on March 10, her son went with plaintiff and Bender to purchase guns in New York. The young men left at approximately 8:00 a.m. Mrs. Mickiewicz called her son at approximately 1:00 p.m., at which time he advised her that everyone was fine and requested that she not call him again.

At approximately 5:30 p.m. on March 10, Mrs. Mickiewicz received a series of telephone calls from her son while she was at work. During the last phone call, he informed her that "they have big trouble" and that "Ziggy flipped out." Her son told her that while he was driving plaintiff's car, plaintiff attempted to strangle him by choking him with his hands and that Bender "had to pull him off." Mr. Mickiewicz also told her that plaintiff had escaped Bender's physical restraint, exited the car, and fled, and that "Ziggy was lost." At that point, Mrs. Mickiewicz reportedly asked her son what he planned to do. He informed her that he would park the vehicle in a garage and would call her back after that.

After speaking with her son, Mrs. Mickiewicz then received a call from plaintiff at the card store where she worked. When she answered the telephone, plaintiff stated "is there a Mary Lou Mickiewicz that works at your employer," and Mrs. Mickiewicz then identified herself. Mrs. Mickiewicz described her ensuing conversation with plaintiff as follows:

I says Ziggy, is that you and he says yes. I want to just tell you and I says, he was out of it you know, he was just screaming on the top of his lungs that Robbie and Brian stole his car and he doesn't have a car now, he's lost in New York City, he never wanted to go to the city and they did this to him and in a couple of minutes he's gonna have a nervous breakdown and then he starts making all sorts of noises saying oh my God, oh my God. I said what Ziggy, and he says there's two [African-Americans] looking at me, . . . . and I said what and he says they're looking at me so I said well turn around so they don't look at you. I said don't say anything, you're gonna cause trouble, just turn around . . . I said Ziggy why were you trying to strangle Robbie. I said I understand you were trying to strangle my son . . . . while he was driving. He says to me I will do more than that I'll blow his brains out.

Mrs. Mickiewicz recounted that she then attempted to calm plaintiff down, suggesting that he take a taxi to the Javits Center where his car was located. She asked plaintiff to call her when he returned to his vehicle.

According to Mrs. Mickiewicz, several minutes later she spoke to her son and Mr. Bender. They informed her that plaintiff's car was parked and safe, and that they had taken the keys to the trunk and doors. At that point, plaintiff called Mrs. Mickiewicz at work a second time. He was "screaming." She recalled him asking, "guess what they did to me now[?]," and then informing her that he could not get into his car trunk where the guns were located. He also expressed frustration that he was unable to drive home because he only had a quarter tank of gas and had no money.

Mrs. Mickiewicz related to the police that she then called her son and Bender. Bender advised her that he had seen plaintiff sitting inside his vehicle while speaking to her, and that plaintiff should have had approximately five to seven hundred dollars and a spare set of car keys in his wallet.

At this point, Mrs. Mickiewicz called plaintiff and informed him that she was aware that he had money and was inside the vehicle. According to Mrs. Mickiewicz, plaintiff responded that he "just wanted to upset" her. Mrs. Mickiewicz then requested plaintiff to call her when he reached the New Jersey Turnpike, and, in the meantime, she would call his mother to advise her of the situation. Plaintiff allegedly began screaming again and urged that she could not call his mother, because his mother would "lock [him] up forever" and "never let [him] out of the house" if she became aware of the events. The call then ended.

As requested, plaintiff telephoned Mrs. Mickiewicz when he reached Exit 14 on the Turnpike. Plaintiff informed her that her son had left medication in his vehicle. At Mrs. Mickiewicz's request, plaintiff drove to her workplace at about 8:00 p.m. that evening with Mr. Mickiewicz's belongings, including the bottle of medication and Mr. Mickiewicz's wallet. Plaintiff then told her that he was feeling sick and had "chest pain going up and down [his] right arm." Mrs. Mickiewicz advised him to go home and relax because he was "safe now." She told plaintiff that she would bring his car keys and his Geiger counter, which her son possessed, to his home the following day.

Mrs. Mickiewicz further advised the police that, upon returning home that night, she discussed plaintiff's condition with her father. Her father had also spoken to plaintiff himself, who had called the house in her absence. In that conversation, plaintiff appeared to her father as being "far out of it," and "just jibber jabbering." Later that evening, Mrs. Mickiewicz then received another telephone call from the plaintiff asking about his gun, stating that he had checked the gun and it appeared that Mr. Mickiewicz had removed a part of it and had disabled the weapon. In reply, Mrs. Mickiewicz allegedly told plaintiff that she had learned Bender had removed the part from his gun as a safety precaution. She had heard that when plaintiff got out of his car in New York, he had "jumped onto the trunk and was like clawing at it" and had been "trying to open the trunk . . . with his bare hands." Mrs. Mickiewicz worried that plaintiff had been attempting to gain access to the weapons in the trunk and "shoot [her] kid's brains out like he said he was going to do." Mrs. Mickiewicz told the police that her son was "really scared" of plaintiff, that he felt plaintiff was indeed going to shoot him, and that she had never known her son to be that scared.

Continuing with her account, Mrs. Mickiewicz stated that the following morning, March 11, at approximately 11:00 a.m., she received another call at work from her son. He informed her that plaintiff had gone to a bakery, which was owned by a family friend, looking for her, and that plaintiff then had called the Mickiewicz residence after he had been unable to find her at the bakery. Mrs. Mickiewicz then called her friend who owned the bakery. The friend confirmed that plaintiff had been looking for her, adding that "he was polite but a little weird."

Mrs. Mickiewicz then called the plaintiff herself, who said that he was still looking for his gun and Geiger counter. She advised him that she had his belongings in the trunk of her car at work. According to Mrs. Mickiewicz, at that point plaintiff's voice changed, and became "like a [M]artian's voice." She described that plaintiff was "quite upset" and "was acting weird like he was in the military or something." He asked for her location, and she told him that she was at work.

Soon thereafter, plaintiff allegedly came into Mrs. Mickiewicz's store to retrieve his belongings. She recalled that when plaintiff entered the store, she was on her hands and knees looking through some drawers while assisting a customer. Plaintiff then began "standing over [her], just staring at [her]," and did not respond when she greeted him. According to Mrs. Mickiewicz, he continued to stand silently and watch her while she finished assisting the customer, and that she felt uneasy because "he had like a long coat on and he looked crazy." As a co-worker watched through the store window, Mrs. Mickiewicz went out to her vehicle with plaintiff and returned his belongings. While she was returning to the store, plaintiff called out to her, saying "tell me one thing." He then began "screaming," flailing his arms while asking "[w]hy did they take me to New York[?]" Mrs. Mickiewicz responded that she did not know, suggesting that her son and Baxter did so to avoid going sixty miles out of the way on the trip home from Long Island. She then returned to the store, at which point plaintiff departed. Thereafter, Mrs. Mickiewicz had not heard anything further from plaintiff.

Mrs. Mickiewicz told the police that she was afraid of plaintiff, because she felt he was "a very sick person," that she was afraid for her son's well-being, and that her co-worker at the card store, who knew nothing about the situation, had stated that she "was waiting for him to pull out a gun" while observing the interaction.

Approximately an hour later, Detective Fitzsimmons took a supplemental statement from Mr. Mickiewicz. In the course of that second debriefing, Mr. Mickiewicz told the officer that plaintiff had made statements in the past about hurting himself. Mr. Mickiewicz recalled that in September or October 2000, plaintiff telephoned Mr. Mickiewicz, stating that he had been pursuing a girl who had "turned him down," that his mother was "giving him problems," and that "everybody's against me." In that conversation, Mr. Mickiewicz further recalled plaintiff stating that he could kill himself with a handgun by "put[ting] the 38 barrel in [his] mouth right now, one pull and end it all." At that point, Mr. Mickiewicz stated that he invited plaintiff to his home. Upon arrival, the two of them had a discussion, during which "nothing sank through" and plaintiff continued to be very upset. Mr. Mickiewicz recalled plaintiff remarking that "one day" he was "just gonna put the gun in [his] mouth and let's hear what everybody feels now." Plaintiff then allegedly continued to make statements about how "everybody," "the world," and "the police" were "against him," and that "everybody" thought he was crazy. Mr. Mickiewicz informed the detective that plaintiff called him again the following day and made similar threats and statements.

Additionally, Mr. Mickiewicz recalled plaintiff talking about how individuals for several years had vandalized his home on "mischief night," October 30, using eggs and toilet paper. Plaintiff allegedly revealed to Mr. Mickiewicz that he planned to "lay underneath his truck with an AR15 assault rifle and if anybody came near his house he was either going to jump out and scare them or if they gave him a problem shoot him." Mr. Mickiewicz further noted that at the time plaintiff made those statements, he did not believe him. However, when Mr. Mickiewicz arrived at plaintiff's house on mischief night of 2000, the plaintiff "called [Mr. Mickiewicz] on [his] cell phone and said look under the jeep . . . ." At that point plaintiff turned on his flashlight from where he was laying underneath a truck in his driveway, and Mr. Mickiewicz stated he was able to see the barrel of a gun. Mr. Mickiewicz recalled that plaintiff then said, "I told you [that] you wouldn't see me."

Later that evening at the stationhouse, Detective Zebrowski interviewed Brian Bender. Bender gave a formal statement to Detective Zebrowski which was recorded but not signed.

In his statement, Bender recounted that on March 10, he went with Mr. Mickiewicz and plaintiff to a gun store, called Wholesale Guns and Ammo, located in Long Island, New York, to purchase firearms. Bender stated that although the three young men went in plaintiff's vehicle, plaintiff allowed Mr. Mickiewicz to drive because plaintiff did not like driving in the city. Once they were inside the store, Bender purchased a gun. Plaintiff, meanwhile, purchased a Mauser 8mm firearm, which he described as "a long rifle . . . probably like from the 1940's." Bender stated that the Mauser would have been used in the military at one time, and that it was "bolt action" and not semiautomatic. Bender recalled that plaintiff bought a bandolier of ammunition, approximately 50 rounds, for the Mauser, as well as a case of 223 ammunition, approximately 100 rounds, which was "for somebody else." Bender related that they placed the guns in the trunk and the ammunition in the backseat of plaintiff's car vehicle upon leaving the store.

Bender further stated that at approximately 2:00 p.m. that day, the three men went to a bar in Queens that was closed, which made plaintiff "a little upset." Upon leaving Queens, plaintiff wanted to drive. However, Mr. Mickiewicz suggested that he continue driving because they needed to go through the city. Bender recalled that while traveling through the Bronx and Manhattan, plaintiff and Mr. Mickiewicz were "arguing a little bit." He further recalled that while in bumper-to-bumper traffic approaching the Lincoln Tunnel to return to New Jersey, plaintiff began yelling continuously that he wanted to go home. Bender attempted to calm plaintiff, by assuring him that they were on the way home, and that "there's nothing [they] could do about th[e] traffic." Nonetheless, plaintiff continued to get upset, exclaiming that he wanted to shoot the tires out of double-parked cars.

At that point, according to Bender, plaintiff pointed at Mr. Mickiewicz, who was still driving the vehicle, and shouted "get the f*** outta my car[!]" Mr. Mickiewicz then warned plaintiff "not to flip out." Despite being much smaller than Mr. Mickiewicz, plaintiff responded that he "could take [him] down like nothing," by using "some kind of move which [Bender and Mr. Mickiewicz] never even heard of." Plaintiff continued to order Mr. Mickiewicz to get out of the vehicle, and Mr. Mickiewicz continued to refuse.

Bender next recalled that plaintiff "just jumped across the seat and tried strangling [Mr. Mickiewicz] around his neck" while the car was moving. Mr. Mickiewicz resisted, pushing down plaintiff's head. That induced plaintiff to pull Mr. Mickiewicz's foot off of the brake, a maneuver which Bender believed was intended to cause an accident. During the course of that altercation, Bender heard plaintiff threaten to shoot Mr. Mickiewicz, warning him that "I'll put the gun to your head." Bender then reached forward from the back seat in an attempt to restrain plaintiff. He then let plaintiff go, at which time the plaintiff jumped out of the vehicle and ran down towards the Lincoln Tunnel.

Concerned that plaintiff would report his car stolen, Bender and Mr. Mickiewicz decided to park it at the Jacob Javits Center, which was about two blocks away from where plaintiff fled. Bender recalled that Mr. Mickiewicz then called his mother. He perceived that Mr. Mickiewicz was afraid to return to the car, out of concern that plaintiff "would be sitting there with his gun ready to shoot him."

Bender asserted that he and Mr. Mickiewicz then removed the bolt action from both firearms, in order to render them unusable, before locking them inside the trunk. At that point, plaintiff returned to the vehicle. At Bender's suggestion, Mr. Mickiewicz returned only the car's ignition key to plaintiff, retaining the key that unlocked the doors and trunk in order to keep plaintiff away from the firearms. Plaintiff got in the vehicle and drove away. Bender and Mr. Mickiewicz walked to the train station to return home.

With respect to plaintiff's weaponry, Bender informed the police that he was aware that, in addition to the Mauser 8mm purchased on March 10, plaintiff owned an AR15, an "SKS, Romanian," a 303, and a .38 Special Smith & Wesson that may have belonged to plaintiff's father. Bender also stated that plaintiff knew a member of the Marine Corps, named James Gilligan, who allegedly "steals stuff from the Marines and mails [plaintiff] stuff," including thirty-round magazines for the AR15. Bender also asserted that plaintiff had once informed him and Mr. Mickiewicz that he would be receiving grenade primers, though Bender did not know if plaintiff had actually received them yet. Bender also stated that plaintiff had night vision goggles, which he believed may have been a Christmas gift. Bender opined that plaintiff was proficient with these weapons and could operate them well. He was unaware of where plaintiff stored the weapons and had only been into the foyer of plaintiff's home once. Bender also noted that plaintiff's only apparent hobby was the military, and to that end he had approximately six military jeeps at his home.

As to plaintiff's mental state, Bender told the police in his statement that "when he's I guess I would say normal, he seems like he's a really cool kid to hang out with, very smart. But um, sometimes he just goes off, like he starts screaming about things." Bender contended that he had only "h[u]ng out" with plaintiff approximately ten times, and that some of those occasions had only been for a few minutes. Bender acknowledged that the only time he had ever heard plaintiff make threats was on March 10, to Mr. Mickiewicz. Bender professed that he was concerned for the plaintiff's well-being, and believed that plaintiff "needs some help." He stated to the police that he did not think plaintiff should have guns, because "[h]e could explode, anything could happen, especially with everything else going around with the guns in the schools."

While Detectives Fitzsimmons and Zebrowski were taking these witness statements concerning plaintiff, other members of the Sayreville Police Department were gathering pertinent information. In particular, they consulted Special Agent Amy L. Pickett of the FBI, Lieutenant Robert G. Gorpe of the Sayreville Special Operations Group (who is a Bomb Detection K-9 handler), Special Agent Robert J. Irwin of the Department of Treasury, Bureau of Alcohol, Tobacco & Firearms, and Kevin J. Tormey of the Terrorism Task Force in Newark.

Based upon the results of these interviews, Detectives Fitzsimmons and Zebrowski determined that they had sufficient information to prepare a joint affidavit in support of an application for a search warrant. The affidavit was single-spaced and six pages long.

The affidavit recited that on March 12, 2001, Mr. Mickiewicz had initiated a report and investigation regarding plaintiff, whom he described as his "best friend," because he was "concerned about [plaintiff's] recent behavior and felt that he may carry out specific threats with use of his personal firearms and military equipment." The affidavit then detailed the prior events of March 10, 2001, including plaintiff's purchase that day of an 8mm Mauser long rifle and eighty rounds of live ammunition for that weapon.

The affidavit describes the March 10 altercation between plaintiff, Mr. Mickiewicz and Bender, as follows:

After leaving the gun dealership, they proceeded into the Manhattan area of New York in search of an adult entertainment bar. After locating the bar in question they found that the establishment was closed. [Plaintiff] became irate and displayed his anger towards his friends. They then proceeded back into the motor vehicle heading towards New Jersey. Somewhere near the Lincoln Tunnel an altercation erupted between [plaintiff] and Mr. Mickiewicz. Mr. Mickiewicz apparently turned on the automobile radio. This was not to the liking of [plaintiff] who once again became irate. At that point [plaintiff] screamed to Mr. Mickiewicz to leave his motor vehicle. [Plaintiff] then raised his hand with a clenched fist as if to punch Mr. Mickiewicz. He continued to scream at Mr. Mickiewicz and then reached over in an attempt to turn the ignition of the vehicle off while they were driving. [Plaintiff], who was seated in the front passenger seat, again reached over and attempted to choke Mr. Mickiewicz. He also threatened Mr. Mickiewicz by stating that if he had his gun he would point it directly at his head and shoot him. Still in an excited state [plaintiff] jumped out of the vehicle and tried to pull the trunk lid open manually. Unsuccessful, [plaintiff] then ran from the area on foot. Mr. Mickiewicz and Mr. Bender then drove to an area nearby to the Jacob Javit[s] Center in New York City.

The affidavit recounts that plaintiff had also contacted Mrs. Mickiewicz, and stated that "he was going to blow her son's brains out." Based on these threats, the affidavit noted that Bender removed the bolt action from both rifles and from the vehicle entirely, out of concern that the plaintiff "would return and attempt to use the guns against them."

The affidavit states that Mr. Mickiewicz informed the detectives that he feared for his life and the lives of others, based on plaintiff's recent behavior and past threats. As indicated, the threats included a recent specific threat of plaintiff going to the Sayreville War Memorial High School armed with his AR15 assault rifle and two thirty-round magazines of ammunition, as well as frequent general threats, ongoing since September 2000, including threats to shoot members of the Rutgers University Green Print Paper with a rifle and bow and arrow.

The affidavit further details the weapons believed to be owned by plaintiff, including an AR15 long rifle, a Romanian SKS rifle, a 303 British Enfield long rifle, a .38 caliber Smith & Wesson handgun, and the Mauser 8mm purchased on March 10, as well as two boxes of ammunition for a fifty-caliber machine gun, thirty-round magazines for an M16 AR15, 1000 rounds of .38 caliber ammunition, and 100-400 rounds of armor piercing 303-caliber ammunition. The affidavit further lists the military equipment that Mr. Mickiewicz had described as being in plaintiff's possession, including night vision goggles, a military gas mask, and fifty detonators for military grenades. The affidavit notes that Mr. Mickiewicz considered plaintiff to be proficient with all of these weapons. It details the locations at which Mr. Mickiewicz believed the weapons could be found.

Additionally, the affidavit details the statements of Mrs. Mickiewicz and Bender and their shared concerns that plaintiff would carry out threats to use his firearms and ammunition against Mr. Mickiewicz and others. It also includes the belief by Mr. Mickiewicz and Mr. Bender that plaintiff had been receiving military property from a friend in the Marine Corps. Further, the affidavit summarizes information about plaintiff that the Sayreville police had obtained from Patrol Officer Jannarone and Detective O'Neal of the Rutgers University Police Department. In two written reports, the Rutgers officers described an incident occurring on December 13, 2000, in which plaintiff had attended a staff party for the Green Print Paper wearing full body armor and a Vietnam-era flak jacket. He was also seen at that event carrying a military radio set, night vision goggles, a Colt H/Bar Rifle, an SKS Romanian rifle with bayonet, and a Browning 19-19 .30 caliber machine gun. The affidavit indicates that the Colt and SKS were operational, but that the machine gun was not functional. It also refers to statements by unnamed students, alluding to plaintiff making past threats of suicide and non-specific threats of violence.

Regarding plaintiff's alleged threats concerning the high school, the affidavit states that detectives had interviewed Dennis Fyffe, Superintendent of Schools for the Sayreville School District. Superintendent Fyffe described an incident during the 1999-2000 school year in which plaintiff, who was no longer enrolled at the high school, had planned on being the guest of a student at the senior prom. According to Fyffe, plaintiff had requested permission for he and his date to arrive at the prom via helicopter. The affidavit details that plaintiff had informed Fyffe that, while flying over the high school, he would take aerial photographs. Plaintiff had intended to use the aerial photographs in the event that, as he allegedly put it, "the high school became a Columbine situation," a reference to the notorious fatal shootings at Columbine High School in Colorado.

During the course of discovery in the present civil litigation, both plaintiff and his mother acknowledged that the joint affidavit of Detectives Fitzsimmons and Zebrowski accurately reflected the information that had been provided to them by Mr. Mickiewicz, Mrs. Mickiewicz, Bender, and Fyffe. The Sayreville officers presented the affidavit to Municipal Judge James T. Weber on March 12, 2001. Judge Weber was satisfied that the affidavit supported a finding of probable cause for a search. Accordingly, Judge Weber issued "no-knock" warrants permitting the search of the Orlowski residence in Sayreville, as well as the residences of plaintiff's grandmother and sister, and of two vehicles registered to plaintiff's father, Leonard Orlowski. The warrants authorized the police to search for firearms, military equipment, ammunition, a firearms identification card, and plaintiff's laptop computer. The warrants were issued on probable cause that plaintiff had committed violations of various weapons statutes, including N.J.S.A. 2C:58-3c, N.J.S.A. 2C:39-4b, and N.J.S.A. 2C:39-5d.

Consequently, at about 11:30 p.m. on March 12, 2001, the search warrants were executed at the Orlowski residence. The Middlesex County Hostage Recovery Team ("SORT team"), entered the premises, apparently by battering down the front door of the home. Approximately fifteen SORT officers went inside and secured the home. Detectives Fitzsimmons and Zebrowski entered approximately ten to fifteen minutes later. Plaintiff, who had been at home when the police entered, was restrained with zip cuffs and was seated in his dining room. During the course of the search, he and his mother were detained in separate rooms in the home. The police gathered from the residence approximately fifty-seven items of property, including numerous firearms, ammunition, and military equipment.

Plaintiff was arrested and charged with possession of an assault rifle, in violation of N.J.S.A. 2C:39-5f, and with failure to make lawful disposition of a large-capacity ammunition magazine intended only to be used by authorized military or law enforcement personnel, in violation of N.J.S.A. 2C:39-9h. Subsequently, in April 2004 plaintiff was admitted into the diversionary PTI program for a period of three years. His admission into PTI was conditioned on his surrender of his firearms identification card, forfeiture of all weapons, undergoing a mental health evaluation, and meeting periodically with his probation officer.

In March 2003 plaintiff and three of his aforementioned family members filed an eight-count complaint in the Law Division, Middlesex County. The complaint named as defendants the Borough (initially mis-designated "Township") of Sayreville, the Sayreville Police Department, Detective Zebrowski, Detective Fitzsimmons, Sayreville Police Chief John B. Garbowski, the Sayreville Board of Education, several individual members of the Board of Education, and multiple John Doe police officers. The allegations in the complaint centered upon the procurement and execution of the search warrants at the Orlowski residence on March 12, 2001, and the consequent arrest of plaintiff. It alleged that those actions violated plaintiffs' civil and constitutional rights under 42 U.S.C. 1983 and related federal statutes. The complaint also alleged state-law claims of false arrest and imprisonment, negligence and other civil wrongs. The complaint sought compensatory and punitive damages, as well as counsel fees.

As the litigation progressed, the claims against the Board of Education, the individual Board members, and the John Doe police officers were voluntarily dismissed. Additionally, the claims of plaintiff's father and sister were likewise voluntarily dismissed.

Following a period of discovery, the remaining defendants moved for summary judgment, which plaintiff opposed. The motions were argued before Judge Jamie D. Happas on December 16, 2005. During the course of that argument, plaintiff's counsel waived the claims of excessive force, malicious prosecution, equal protection, and violations of the Fifth, Eighth, and Fourteenth amendments, as well as all state-law claims. Hence, the only issues remaining for disposition before Judge Happas were the plaintiff's claims under 42 U.S.C. 1983, involving the police officers' alleged lack of probable cause for the search of the residence and the alleged false arrest of plaintiff.

After hearing the arguments, Judge Happas entered an order later that day granting summary judgment to the moving defendants. As part of that order, the judge specifically dismissed all claims against the Borough of Sayreville and Police Chief Grabowski, as plaintiff had failed to allege personal contemporaneous knowledge or involvement, or a municipal policy, custom, or practice which could justify municipal or supervisory liability.

In her oral decision, Judge Happas determined that there were no genuine issues of material fact that warranted a trial on plaintiff's claims of lack of probable cause and of false arrest. The judge was satisfied that, under the totality of the circumstances, probable cause existed for the issuance of the search warrants and the warrant for plaintiff's arrest. Among other things, Judge Happas specifically found that:

The plaintiffs attempt to simply deny certain statements of fact presented in the defendants moving papers are simply a red herring designed to create a genuine issue of material fact. Based upon all the evidence that's been submitted to this court, and for the foregoing reasons no reasonable fact finder can determine that probable cause did not exist, for both the search warrant and the arrest of [plaintiff]. Additionally, the [detention] of [plaintiff] was permissible, since probable cause had been established prior to the execution of the no knock warrant . . . .

Therefore, any claims that the plaintiffs were falsely arrested when they were detained in their home for a couple of hours, do[] not [have] merit . . . . [T]he law enforcement [personnel] that were present in the plaintiffs['] residence[,] had every right to detain both plaintiffs while the search was being conducted.

[Emphasis added.]

The judge also found that defendants Fitzsimmons and Zebrowski were independently entitled to summary judgment, as a matter of law, on the basis of qualified immunity. Specifically, the court held that the evidence demonstrated that Detectives Fitzsimmons and Zebrowski had acted "reasonably," and that

there's nothing to suggest that a reasonable [person] in the position of Detective Sergeant Z[e]browski or Fitzsimmons would have known [he or she was] violating plaintiffs['] Constitutional Rights by conducting an investigation, gathering testimony, and evidence, and then submitting and swearing to an affidavit before a magistrate judge in order to receive a valid search warrant. To the contrary, based on the evidence . . . that the detectives gathered, a reasonable [detective] would have believed that [he or she was] following the proper constitution[al] procedure, so as not to violate plaintiffs['] protective rights.

[Emphasis added.]

This appeal followed. In support of the appeal, plaintiff argues that the Law Division erred in concluding that there was probable cause for the search of the Orlowski residence and for plaintiff's arrest. Plaintiff contends that there are genuine issues of material fact on those issues and that the motion judge misapplied the law.

II.

Plaintiff appeals the entry of summary judgment in favor of defendants Borough of Sayreville, the Sayreville Police Department, Chief Garbowski, and Detectives Zebrowski and Fitzsimmons. As we have often recognized, an appellate court reviews a grant of summary judgment de novo, applying the same standard governing the trial court under R. 4:46. Ponte v. Overeem, 337 N.J. Super. 425, 427 (App. Div. 2001), rev'd on other grounds, 171 N.J. 46 (2002). Generally, the court must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co., 142 N.J. 520, 523 (1995); see also R. 4:46-2(c).

In cases brought under 42 U.S.C. 1983, the Brill framework is slightly modified to accommodate federal law. Schneider v. Simonini, 163 N.J. 336, 360-61 (2000), cert. denied, 531 U.S. 1146, 121 S. Ct. 1083, 148 L. Ed. 2d 959 (2001). Where a Section 1983 defendant asserts a qualified immunity defense on a motion for summary judgment, the plaintiff bears the burden of showing that the defendant's conduct violated some "clearly established" statutory or constitutional right. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396, 410 (1982). Thus, when a search, seizure, or both occur pursuant to a warrant, the existence of probable cause is presumed to have existed for the purposes of an ensuing civil action under Section 1983. Schneider, supra, 163 N.J. at 360. A plaintiff seeking recovery must prove by a preponderance of the evidence that probable cause did not exist, and if the plaintiff fails to do so, judgment must be entered on behalf of the defendant as a matter of law. Ibid.; see also Franks v. Delaware, 438 U.S. 154, 155-56, 98 S. Ct. 2674, 2676-77, 57 L. Ed. 2d 667, 672-73 (1978).

Plaintiff argues that the Sayreville police lacked probable cause to search his home and to arrest him on March 12, 2001, and that the warrants the police obtained from the municipal judge before entering his premises were defective. He contends that, at minimum, there are genuine issues of material fact on the issue of probable cause, and that the motion judge erred in not leaving those alleged issues for a jury. We disagree.

Our own careful review of the record confirms that the motion judge properly granted summary judgment as to the presence of probable cause. Given the very detailed and extensive information about plaintiff's recent and past behavior, as set forth in the joint affidavit of Detectives Zebrowski and Fitzsimmons presented to the municipal judge, no reasonable juror could have found find that information insufficient to establish probable cause to search plaintiff's residence and arrest him in connection with the numerous weapons found there.

Probable cause exists where, given the totality of the circumstances, there is a "'fair probability that contraband or evidence of a crime will be found in a particular place.'" State v. Moore, 181 N.J. 40, 46 (2004), (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527, 548 (1983)). The central component of probable cause "is a well-grounded suspicion that a crime has been or is being committed." State v. Nishina, 175 N.J. 502, 515 (2003). This standard for probable cause is identical under both the Fourth Amendment of the Federal Constitution and Article I, Paragraph 7 of the New Jersey Constitution. State v. Novembrino, 105 N.J. 95, 122 (1987), (quoting Gates, supra, 462 U.S. at 238, 103 S. Ct. at 2332, 76 L. Ed. 2d at 548.)

"When a search or seizure is made pursuant to a warrant, the probable cause determination must be made based on the information contained within the four corners of the supporting affidavit, as supplemented by sworn testimony before the issuing judge that is recorded contemporaneously." Schneider, supra, 163 N.J. at 363. Such warrants must be based on "sufficient specific information to enable a prudent, neutral judicial officer to make an independent determination that there is probable cause to believe that a search would yield evidence of past or present criminal activity." State v. Keyes, 184 N.J. 541, 553 (2005) (citing Novembrino, 105 N.J. at 120).

Probable cause may be based in part on information obtained by informants, so long as a substantial basis is presented for crediting that information. State v. Jones, 179 N.J. 377, 389 (2004). Information obtained from "an identified citizen informant, which is based on direct personal observations, has a substantial degree of reliability." State v. Nikola, 359 N.J. Super. 573, 580 (App. Div.) certif. denied, 178 N.J. 30 (2003); accord Wildoner v. Borough of Ramsey, 162 N.J. 375, 390-92 (2000), State v. Davis, 104 N.J. 490, 506 (1986). This is because where the source of information is an identified citizen, rather than an anonymous informant, "[t]here is an assumption grounded in common experience that such a person is motivated by factors that are consistent with law enforcement goals," and thus the information may be presumed reliable without further exploration and verification by police. Davis, 104 N.J. at 506 (citing State v. Lakomy, 126 N.J. Super. 430, 435 (App. Div. 1974) and State v. Kurland, 130 N.J. Super. 110, 114-15 (App. Div. 1974)). While information obtained from criminal informants is usually given in return for "'some concession, payment, or simply out of revenge,'" there is no similar quid pro quo involved with a citizen informant. Lakomy, 126 N.J. Super. at 435 (quoting State v. Paszek, 184 N.W.2d 836, 842 (Wisc. 1971)). Moreover, the imputation of reliability to citizen informers is especially appropriate "where the reactive measures taken are for the limited purpose of neutralizing a dangerous situation," and where the informant identifies himself, thus "expos[ing] himself to reprimand or personal accountability." Id. at 436.

We previously addressed the sufficiency of information provided by a citizen informant to establish probable cause in Sanducci v. City of Hoboken, 315 N.J. Super. 475 (App. Div. 1998). In Sanducci, the plaintiff was charged with stalking, based on the sworn statement of an alleged victim, McDonald, whom she knew personally. Id. at 479. In finding that the statement constituted probable cause, we held that although "McDonald and [the] plaintiff were adversaries[, t]he police nevertheless acted reasonably in relying upon McDonald's sworn statement." Id. at 482. As in Lakomy, we emphasized in Sanducci that the presumption of valid motivation and reliability inherently attributable to citizen informants was "heightened still further when the citizen provides the police with a sworn statement, thus subjecting himself or herself to potential civil or criminal liability." Ibid. Moreover, we stressed that the information came not from "a faceless member of the criminal milieu, but instead [from] an ordinary citizen who claimed to be the victim of a frightening crime." Ibid.

Here, Detectives Fitzsimmons and Zebrowski were faced with the unsolicited report of a private citizen, Mr. Mickiewicz, who advised that the plaintiff, whom he knew closely, had made several recent threats of violence against him and others. As background for assessing those threats, Mr. Mickiewicz described prior threats that plaintiff had made against the administration and students at the local high school and regarding a Rutgers student newspaper. On March 12, Mr. Mickiewicz memorialized his report of danger with a formal police statement describing matters about which he had substantial personal knowledge. His account had additional credence in that he had made similar reports about plaintiff two days earlier to the FBI and the United States Army.

Plaintiff argues that the police should have discounted Mr. Mickiewicz' statements because of his alleged motive to retaliate against plaintiff, specifically plaintiff's report to the South Amboy police that had led to the confiscation of Mr. Mickiewicz' own firearms. However, when Detective Fitzsimmons learned about the South Amboy confiscation on March 11, he specifically asked Mr. Mickiewicz, multiple times, if he was making these statements out of revenge. Each time Mr. Mickiewicz denied that motive, pointing out that he had made his initial reports on March 10, the day of plaintiff's distressing behavior in New York and one day prior to the forfeiture of his own weapons. Additionally, the police could rationally consider plaintiff's involvement in having Mr. Mickiewicz disarmed as conduct that increased, rather than diminished, the veracity of Mr. Mickiewicz's worry that plaintiff would act on his threats unless he were stopped.

The facts here regarding the relationship between Mr. Mickiewicz and plaintiff are similar to those in Sanducci, where plaintiff's adversarial relationship with the alleged victim did not invalidate either the victim's statement or the warrant flowing from that statement. Likewise, the fact that Mr. Mickiewicz and the plaintiff had a disagreement and a physical altercation a few days before Mr. Mickiewicz issued his sworn statement to police, did not render Mr. Mickiewicz unreliable. This is especially true in light of the fact that Detectives Fitzsimmons and Zebrowski conducted a further investigation beyond their interview of Mr. Mickiewicz, by taking statements from Mrs. Mickiewicz, Bender, and Superintendent Fyffe, as well as obtaining reports and information from the Rutgers Police Department. Those added reports only served to corroborate and fortify Mr. Mickiewicz's fears.

Plaintiff failed in the motion proceedings to advance sufficient counterproof to overcome the presumption of validity that attaches to the warrant issued by the municipal judge. The supporting affidavit authored by Detectives Fitzsimmons and Zebrowski is lengthy and fact-laden. It provides considerable details obtained from a citizen informant, whose statements were substantially corroborated by the police's follow-up investigation, including interviews with three other citizens and reports obtained from the Rutgers Police Department. The affidavit relates not only recent and frequent threats by plaintiff against specific persons, but also presents information that plaintiff owned multiple firearms, including a high-capacity magazine, and various types of military weaponry, was proficient with that weaponry, and specified the supposed locations where the weaponry was kept.

The affidavit clearly provided sufficient specific information for the issuing judge to determine that a search of the identified property, including plaintiff's residence, would yield evidence of the ongoing threats, including the weapons with which they could have been carried out. There was sufficient probable cause as a matter of law for the municipal judge to authorize the warrants. It makes no difference that the assault weapon found on the premises was later determined not to be classified as illegal, or that plaintiff was eventually diverted from criminal prosecution through his admission to the PTI program.

Plaintiff also contends that a jury should have been permitted to examine whether the Sayreville detectives misled the municipal judge by including inaccurate data in the supporting affidavit. This claim is unavailing.

Where a plaintiff challenges the validity of a search warrant by alleging that law enforcement officials submitted a false affidavit, the plaintiff must prove, by a preponderance of the evidence, first, that the affiant "knowingly and deliberately, or with a reckless disregard for the truth, made false statements or omissions that create a falsehood[,]" and second, "that such statements or omissions are material, or necessary, to the finding of probable cause." Sherwood v. Mulvihill, 113 F.3d 396, 399 (3d Cir. 1997) (citing Franks v. Delaware, 438 U.S. 154, 171-72, 98 S. Ct. 2674, 2684-85, 57 L. Ed. 2d 667, 682 (1978).

Even if a court finds an affidavit to be false, whether by affirmative misrepresentation or by omission, the court must then determine whether the falsehoods were material by examining the affidavit with the false information eliminated to determine if the corrected affidavit would have been insufficient to support probable cause. Sherwood, supra, 113 F.3d at 399 (citing Franks, supra, 438 U.S. at 156, 98 S. Ct. at 2676, 57 L. Ed. 2d at 672). The court does so by deleting affirmative misrepresentations, and by supplying omitted information. Sherwood, supra, 113 F.3d at 399-400.

Plaintiff here has conceded that the facts contained in the affidavit submitted to the municipal judge accurately reflected information provided to Detectives Zebrowski and Fitzsimmons. Plaintiffs do not allege that Detectives Zebrowski and Fitzsimmons fabricated the statements, or that they included statements in the affidavit that they knew to be false. Plaintiffs do allege, however, that the detectives intentionally omitted information in the Rutgers police reports indicating the that (1) plaintiff possessed a firearms identification card and (2) that the University incident was closed by the investigating officer as not being indicative of criminal activity, and that no further police action was anticipated. In the alternative, plaintiff suggests that these omissions were at least reckless if not deliberate, arguing that the officers "could have and should have learned that [p]laintiff had legally registered non-assault weapons in his home from the Rutgers investigation." (emphasis omitted). However, plaintiff has not presented any expert testimony opining that this omission rises to the level of recklessness. In any event, the detectives' state of mind on these particular omissions proves to be inconsequential, for reasons we now explain.

The search warrants issued by the municipal judge authorized searches for evidence that reflected, among other things, a violation of N.J.S.A. 2C:58-3c. That statute provides, in pertinent part, that firearms identification cards cannot be obtained by "any person who suffers from a physical defect or disease which would make it unsafe for him to handle firearms, to any person who has ever been confined for a mental disorder," or "any person where the issuance would not be in the interest of the public health, safety, or welfare." The warrants also permitted searches for violations of N.J.S.A. 2C:39-5d, which criminalizes the knowing possession of a weapon "under circumstances not manifestly appropriate for such lawful uses as it may have . . . ." Thus, even assuming, just for the sake of argument, that Detectives Fitzsimmons and Zebrowksi had intentionally omitted from their affidavit information that plaintiff possessed a firearm identification card and that no criminal charges had resulted from the Rutgers incident, the remainder of the affidavit would still amply support a finding of probable cause. The fact that plaintiff possessed a firearm identification card does not render it unlikely that he was, nonetheless, an individual whose possession of firearms was contrary to the public health, safety, and welfare. His recent alarming behavior, as graphically described to the police by Mr. Mickiewicz, Mrs. Mickiewicz and Bender, all served to raise such serious questions of fitness. Moreover, the fact that plaintiff may have purchased all of his firearms legally does not negate a present tendency to commit the threatened acts. Such threatened acts of violence are no less criminal when performed with legally-owned weapons.

Additionally, the supplied information would not have negated probable cause to search for violations of N.J.S.A. 2C:39-4b, which makes it illegal to possess certain explosives. Paragraphs 9, 14, and 17 of the joint affidavit contain information obtained from Bender and Mr. Mickiewicz reporting that plaintiff possessed fifty grenade detonators obtained from a Marine Corps member. Again, the information about plaintiff's ownership of a firearms identification card and his non-prosecution for the Rutgers incident does not dispel the relevance of this information.

In sum, we agree with the motion judge that no genuine issues of material fact were raised by the alleged omissions from the detectives' affidavit. Probable cause would have existed as a matter of law, with or without that supposedly missing information.

We also reject plaintiff's related contention that the police lacked probable cause to arrest him at his residence. This likewise is an issue upon which summary judgment was correctly granted.

In determining whether police officers had probable cause to arrest an individual, a court must determine whether, "at the time of the arrest, the facts and circumstances within the officers' knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the suspect had committed or was committing an offense." Wildoner, supra, 162 N.J. at 389. The standards for probable cause are identical for a search and for an arrest; both may be based on statements from witnesses or informants. Id. at 390; see also Moore, supra, 181 N.J. at 45. As the Supreme Court has noted, "if probable cause to arrest cannot be based upon the reliable report of a concerned citizen, as supported by an officer's review of the totality of the circumstances, then law enforcement officers' willingness to make such arrests may be chilled by fear of civil liability for their actions." Wildoner, supra, 162 N.J. at 396.

Additionally, it is well-settled that an arrest may be effectuated based on the results of a valid search. See, e.g., State v. Doyle, 42 N.J. 334, 342-43 (1964). Plaintiff's argument that police cannot arrest an individual based on the fruits of a search refers only to warrantless searches. See ibid. ("A search undertaken merely for the purpose of uncovering evidence with which to arrest and convict of crime is not made lawful because the desired evidence is obtained. Absent a valid search warrant, they must arrest validly in which event they may search reasonably as an incident of the arrest.") (internal citations omitted); State v. Gagen, 162 N.J. Super. 105, 112 (App. Div. 1978) (finding that for a warrantless search to be a valid search incident to arrest, the right to arrest must pre-exist the search).

Here, the undisputed facts indicate that at the time of plaintiff's arrest, Detectives Fitzsimmons and Zebrowski had received reports from three independent citizen eyewitnesses that plaintiff was acting irrationally and making both vague and specific threats of violence. Additionally, at the time of the arrest, the detectives had discovered multiple firearms, ammunition, and other weapons pursuant to a valid search of the plaintiff's home, corroborating the information provided by those eyewitnesses. Plaintiff was arrested for possession of what was reasonably thought to be an assault firearm, based on the discovery of the Colt AR15 in his home, and for failure to make lawful disposition of a large-capacity ammunition magazine, also found in his home. The totality of the circumstances, even when viewed in the light most favorable to plaintiff, could not permit a reasonable jury to find that probable cause was absent to effectuate that arrest. Consequently, the motion judge correctly granted summary judgment on the issues relating to plaintiff's arrest.

Lastly, although it is not necessary for us to do so, we comment briefly upon the individual defendants' invocation of qualified immunity from suit. Qualified immunity protects law enforcement officials from civil liability under Section 1983 in all situations where the officer did not violate "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, supra, 457 U.S. at 818, 102 S. Ct. at 2738, 73 L. Ed. at 410. The officer's conduct must be judged based on the state of the law that existed at the time of the alleged constitutional violation. Anderson v. Creighton, 483 U.S. 635, 639, 107 S. Ct. 3034, 3038, 97 L. Ed. 2d 523, 530 (1987).

Law enforcement officials are entitled to qualified immunity from Fourth Amendment claims under Section 1983 where they can establish (1) that they were acting under probable cause, or (2) that, if probable cause did not actually exist, that an objectively reasonable officer could have believed that probable cause existed. Schneider, 163 N.J. at 354-55, citing Harlow, supra, 457 U.S. at 818-19, 102 S. Ct. at 2736-38, 73 L. Ed. 2d at 408-11.

It is uncontested that the basic law governing searches and seizures under both the Federal and New Jersey Constitutions was well-established in March 2001, when the events here took place. As we have already noted, the record plainly shows that Detectives Fitzsimmons and Zebrowski did not violate the plaintiff's constitutional rights, either by conducting a search in the absence of probable cause or by fabricating an affidavit to obtain a search warrant. However, even assuming for argument's sake that such probable cause did not exist, the detectives still would be entitled to qualified immunity based on the reasonableness of their actions.

The undisputed facts here reveal that Detectives Fitzsimmons and Zebrowski responded to an individual, Mr. Mickiewicz, reporting plaintiff's many recent threats of violence. They followed up that report by taking a formal statement from Mr. Mickiewicz, and also by gathering separate statements from Mrs. Mickiewicz and from Bender, another acquaintance who had observed first-hand plaintiff's aberrant behavior in the preceding two days. They then interviewed Assistant Superintendent Fyffe and obtained information from the Rutgers Police Department. The police also spoke with representatives from the FBI Terrorism Task Force, the Bureau of Alcohol, Tobacco, and Firearms, and a bomb detection K-9 handler from the Special Operations Group. At that point, the detectives prepared an affidavit and applied for a search warrant, which was granted by a municipal judge. They then executed that no-knock warrant, utilizing the protection and expertise of the SORT team.

An objectively reasonable law enforcement official in the detectives' position could not have believed that he was violating the Fourth Amendment by such a comprehensive method of investigating reported threats of violence and obtaining and executing a search warrant based on the results of that investigation. Thus, even if probable cause hypothetically did not exist to search plaintiff's home, Detectives Fitzsimmons and Zebrowski are entitled to qualified immunity from suit based on the overall reasonableness of their behavior. No genuine jury question was presented on this legal issue of immunity.

For all of these reasons, we sustain the December 16, 2005 order granting defendants summary judgment.

 
Affirmed.

The claims involving those other family members, Leonard and Meghan Orlowski, were voluntarily dismissed. Because the issues on appeal are confined to whether probable cause existed to search the Orlowski home and to arrest Zygmunt Orlowski, we shall refer to Zygmunt Orlowski as "plaintiff," even though his mother Judith Orlowski nominally remains a co-plaintiff.

Because Robert Mickiewicz' mother, Mary Lou Mickiewicz, also assisted in the police investigation of plaintiff, we shall refer to Robert Mickiewicz as "Mr. Mickiewicz" and to his mother as "Mrs. Mickiewicz."

Plaintiff admitted to contacting Detective Cheeseman and making these allegations against Mr. Mickiewicz, but did not recall when he made them. The admission did not occur until after the search of the Orlowski residence had been effectuated and thus is irrelevant to the issue of probable cause.

The "Colt H/Bar sport rifle" is another name for the AR15 rifle.

The affidavit does not, however, discuss a third report that Sayreville police had obtained from Rutgers, signed by Detective O'Neal, stating that plaintiff possessed a firearms identification card, that he spoke with plaintiff regarding the Green Print Paper incident, and Detective O'Neal's then-assessment that "[a]t this point there is no indication of any criminal activity and no further police involvement is anticipated."

At argument before us, plaintiff's counsel suggested that the Rutgers information was "stale," but we note to the contrary that it involved circumstances as late as December 2000, only about three months before the March 2001 events that precipitated Mr. Mickiewicz going to the Sayreville police.

(continued)

(continued)

57

A-2710-05T1

July 11, 2007