680 Fed.Appx. 76 (3rd Cir. 2017), 16-3113, Morgan v. Borough of Fanwood

Docket Nº:16-3113
Citation:680 Fed.Appx. 76
Opinion Judge:CHAGARES, Circuit Judge.
Party Name:ROBERT L. MORGAN, Appellant v. BOROUGH OF FANWOOD; BOROUGH OF FANWOOD POLICE DEPARTMENT; THOMAS JEDIC, Sergeant of the Borough of Fanwood Police Department; UNION COUNTY SHERIFF'S DEPARTMENT; GLEN TRESCOTT, Union County Sheriff's Officer; JOHN DOES 1 to X (fictitious named individuals); ABC I to X (fictitious named entities and/or corporations)
Attorney:For ROBERT L. MORGAN, Plaintiff - Appellant: Richard A. Dunne, Esq., Mountainside, NJ. For BOROUGH OF FANWOOD, FANWOOD BOROUGH POLICE DEPARTMENT, Defendants - Non-Participating: Alan J. Baratz, Esq., Weiner Law Group, Parsippany, NJ. For THOMAS JEDIC, Sergeant of the Borough of Fanwood Police Dep...
Judge Panel:Before: CHAGARES, RESTREPO, and ROTH, Circuit Judges.
Case Date:March 01, 2017
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 76

680 Fed.Appx. 76 (3rd Cir. 2017)

ROBERT L. MORGAN, Appellant

v.

BOROUGH OF FANWOOD; BOROUGH OF FANWOOD POLICE DEPARTMENT; THOMAS JEDIC, Sergeant of the Borough of Fanwood Police Department; UNION COUNTY SHERIFF'S DEPARTMENT; GLEN TRESCOTT, Union County Sheriff's Officer; JOHN DOES 1 to X (fictitious named individuals); ABC I to X (fictitious named entities and/or corporations)

No. 16-3113

United States Court of Appeals, Third Circuit

March 1, 2017

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) January 23, 2017.

Page 77

NOT PRECEDENTIAL

Editorial Note:

This opinion is not regarded as Precedents which bind the court under Third Circuit Internal Operating Procedure Rule 5.7. (See Federal Rule of Appellate Procedure Rule 32.1)

On appeal from the United States District Court for the District of New Jersey. (No. 2-11-cv-07513). District Judge: Honorable Esther Salas.

Morgan v. Borough of Fanwood, (D.N.J., June 13, 2016).

For ROBERT L. MORGAN, Plaintiff - Appellant: Richard A. Dunne, Esq., Mountainside, NJ.

For BOROUGH OF FANWOOD, FANWOOD BOROUGH POLICE DEPARTMENT, Defendants - Non-Participating: Alan J. Baratz, Esq., Weiner Law Group, Parsippany, NJ.

For THOMAS JEDIC, Sergeant of the Borough of Fanwood Police Department, Defendant - Appellee: Alan J. Baratz, Esq., Weiner Law Group, Parsippany, NJ.

For UNION COUNTY SHERIFF DEPARTMENT, Defendant - Non-Participating: Moshood Muftau, Esq., County of Union, Law Department, Elizabeth, NJ.

For GLEN TRESCOTT, Union County Sheriff's Officer, Defendant - Appellee: Edward J. Kologi, Esq., Michael S. Simitz, Esq., Kologi & Simitz, Linden, NJ.

Before: CHAGARES, RESTREPO, and ROTH, Circuit Judges.

Page 78

OPINION [*]

CHAGARES, Circuit Judge.

Appellant Robert Morgan filed this lawsuit under 42 U.S.C. § 1983, claiming that police officers violated his constitutional rights by conducting an unlawful investigatory stop of his vehicle and by improperly procuring a search warrant to search the vehicle for controlled substances. The District Court granted summary judgment for the defendants, and we will affirm.

I.

We write solely for the parties and therefore recite only the facts necessary to our disposition. On the afternoon of January 2, 2010, Sergeant Thomas Jedic of the Borough of Fanwood Police Department pulled over Morgan's vehicle, a Jeep Grand Cherokee. Jedic noted prior to the stop that the driver's side tail light cover was partially missing and that the front driver's door was not completely closed. Jedic spoke to Morgan, who was the driver and sole occupant of the car. Morgan explained to Jedic that his vehicle had been stolen but then found, and that it had been in an accident recently. Morgan's vehicle had North Carolina license plates, but he had a Pennsylvania license.

During the stop, Jedic noticed that the carpeting in Morgan's vehicle was covered by carpet freshening powder. There was also an air freshener on the front console. According to his report, Jedic smelled " a strong odor of what my experience and training concluded was raw marijuana." Joint Appendix (" J.A." ) 40. Jedic returned to his patrol vehicle and told a back-up officer, " He's got one of those Renuzit air fresheners in there, and I'm getting old, but I smell something." Dashcam Video 15:17:03-15:17:14. Jedic later added, " But like you said it's that, that air, that Renuzit thing is so overpowering." Id. at 15:29:39-15:29:51.1

Jedic ran a warrant and license check on Morgan, which revealed an open 2009 warrant for a Robert Morgan with the same Social Security number but a different birthdate. The warrant was issued in Paterson. Morgan stated that his vehicle had been stolen in March 2010 and that he had a previous drug arrest in Newark, but never had a warrant in Paterson.

Jedic issued Morgan a summons for violating Section 39:3-66 of the New Jersey Motor Vehicle and Traffic statute, which provides: All lamps, reflectors and other illuminating devices required by this article shall

Page 79 be kept clean and in good working order and, as far as practicable, shall be mounted in such a manner as to reduce the likelihood of their being obscured by mud or dust thrown up by the wheels.

N.J. Stat. Ann. § 39:3-66 Jedic explained to Morgan that he had a responsibility to maintain the cover on the tail light and that the white light emitted without the cover is " blinding." Dashcam Video 15:30:18-15:30:50; 15:31:00-15:31:40. Although Jedic noted the vehicle door problem to Morgan and in his investigative report, he did not ultimately issue a summons for unsafe driving.

After issuing the summons, Jedic told Morgan, " I smell something in that vehicle . . . I smell something a little strong in there," Dashcam Video 15:32:58-15:33:12, and asked if Morgan would consent to a search of the vehicle. Morgan at first agreed, but then withdrew his consent.

Jedic radioed for a K-9 unit from the Union County Sheriff's Department. He stated to the dispatcher, " Listen, I gave this guy a summons, but I smell something in the car . . . See if a county drug dog may be available." Id. at 15:32:58-15:33:12. While waiting for the K-9 unit to arrive, Jedic commented to a back-up officer, " Did you see the amount of carpet freshener?" The other officer replied by agreeing that it was " everywhere." Id. at 15:52:03-18.

Officer Glen Trescott arrived about 20 minutes later with a K-9 named Onyx. Before Onyx was deployed, Jedic told Trescott that he could smell something in the vehicle -- namely, " raw marijuana." Id. at 15:52:40-15:53:59. Jedic informed Morgan that the K-9 unit arrived. At this point, Morgan again reversed course and told Jedic that he would consent to a search of his car.

Trescott then brought Onyx around the perimeter of Morgan's vehicle. Although Onyx's movements near the driver's door were partially obscured on the dashcam video, the video does show him lifting his left front paw to the driver's side of the vehicle. Id. at 15:57:39-15:57:42. At this time, two scratch sounds are audible. Id. at 15:57:40-15:57:42. Trescott told Jedic that there was a positive indication for the presence of a controlled substance but that the " odor was not the strongest." Id. at 15:58:16-15:58:21. Jedic then spoke to Morgan again, asking him to verify that he gave the officers permission to search the car. Morgan withdrew his prior authorization and demanded a warrant.

Trescott and Jedic applied for a search warrant before the Honorable Robert Mega of the Superior Court of Union County. Jedic testified before...

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