BAYNARD v. MONA

Not for Publication

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

AZAIAH BAYNARD,

Plaintiff,

Civil Action No.: 20-7723 (ES) (CLW)

v.

OPINION

JOSEPH SAPIENZA,

Defendant.

SALAS, DISTRICT JUDGE

Before the Court is Defendant Detective Joseph Sapienza’s motion to dismiss Plaintiff

Azaiah Baynard’s Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).

(D.E. No. 51). Having considered the parties’ submissions, the Court decides this matter without

oral argument. See Fed. R. Civ. P. 78(b); L. Civ. R. 78.1(b). For the following reasons,

Defendant’s motion is GRANTED. The Amended Complaint is dismissed without prejudice.

I. BACKGROUND

A. Factual Allegations

This case arises from Baynard’s arrest and prosecution for a crime, he says, he did not

commit. As alleged in the Amended Complaint, a man named Deon Merchant was shot several

times on June 30, 2018, at approximately 11:00 p.m., by an individual in the area of 432 Leslie

Street, Newark, New Jersey. (D.E. No. 45 (“Am. Compl.”) ¶ 9). On July 5, 2018, Detective

Sapienza secured a warrant for Baynard’s arrest after he submitted the following affidavit of

probable cause to a judicial officer:

I am a Detective assigned to the Newark Police Department

Shooting Response Team. I am responsible for the investigation

detailed hereinafter involving a shooting incident. On 6/30/18 a

male was shot in the chest, arm, and leg and was transported via

privately owned automobile to Newark Beth Israel. This male was

rushed into emergency surgery where he went into cardiac arrest

twice during the surgery and life saving measures were performed

to save his life.

Surveillance video was retrieved from the area. On 7/3/18 I was

able to obtain a sworn audio statement from the victim who advised

me he was standing in front of 432 Leslie Street when a male clad

in a hooded sweatshirt, walked up to him, yelled out “Yo!”, took off

the hood, looked at him, and discharged a handgun several times

striking him multiple times. The victim stated he was transported to

NBIMC where he was rushed into emergency surgery and “died”

twice on the operating table. The victim also provided a physical

description of the male. The victim knows where the male lives and

stated he sees him outside this house everyday. The victim also

knows the male drives a blue mini van and recently died the tips of

his dreadlocks blonde however, he does not know his name.

Detective Pisano and I then drove pass 315 Wainwright which is the

residence identified by the victim where the suspect lives. Parked

in the driveway was a Blue mini-van. The license plate was

recorded. Upon returning to our office, the license plate was ran and

the vehicle was checked for moving violations. One such male was

found to have numerous moving violations issued to him in this

vehicle. This male, Azaiah Baynard was then placed in a photo

array. A photo array was then shown to the victim who positively

identified Baynard as the male who shot him.

Additional video surveillance was obtained from Wainwright Street

which shows the same mini van which Baynard is known to operate

driving down the block a few minutes after the shooting.

It should be noted I was able to confirm with the Doctors of Newark

Beth Israel that the victim did in fact go into cardiac arrest several

times during his surgery.

(D.E. No. 51-7, Ex. F at 4–5 (“Aff. of Probable Cause”)).1 That same day, Baynard was arrested

and then charged with attempted murder, aggravated assault with a deadly weapon, unlawful

1 On this procedural posture, the Court may rely on the affidavit of probable cause that was prepared by

Detective Sapienza because, even though Baynard did not attach the affidavit to his Amended Complaint, his

Amended Complaint explicitly relies on its contents, his claims are based on it, and he does not dispute its authenticity.

See, e.g., Zedonis v. Lynch, 233 F. Supp. 3d 417, 422 (M.D. Pa. 2017) (collecting cases); see also Bridges v. Torres,

809 F. App’x 69, 71 (3d Cir. 2020) (considering an application for a search warrant when assessing the sufficiency of

possession of a handgun, and possession of a weapon for unlawful purposes. (Am. Compl. ¶¶ 61

& 64).

However, Baynard alleges that Detective Sapienza knowingly omitted from the affidavit

of probable cause several aspects of Merchant’s identification that render it unreliable. (Id. ¶¶ 61–

63). First, Merchant was under the influence of opioids during the shooting, the initial interview,

and the later identification. (Id. ¶¶ 23, 53 & 63). Second, Merchant told Detective Sapienza that,

at the time of the shooting, he was not wearing his contact lenses and it was dark outside. (Id. ¶¶

30, 35, 41 & 63). Third, Merchant told Detective Sapienza that, at the time of the shooting, he

saw flashing lights after the shooter screamed “Yo!” and could not see the shooter’s face—but

then later told Detective Sapienza that he had seen the shooter around his house but could not make

out the full details of the shooter’s face, including whether the shooter had facial hair or any other

distinguishing features. (Id. ¶¶ 26, 30, 32, 36–41 & 63). Fourth, Merchant believed the shooter

was “skinny” and weighed approximately “145 pounds,” even though Baynard weighed over 180

pounds. (Id. ¶¶ 33–34 & 63). Fifth, Merchant believed the shooter was “brown,” even though

Baynard is Black. (Id. ¶¶ 30–31 & 63). Sixth, Merchant gave inconsistent statements concerning

how many times he believed he was shot. (Id. ¶¶ 27–28). Seventh, Merchant told Detective

Sapienza that he did not want his “statement used in court.” (Id. ¶ 46).

Baynard further alleges that Detective Sapienza was unduly suggestive during the initial

interview and subsequent photo array identification. (Id. ¶¶ 24, 54, 70 & 76). Detective Sapienza,

Baynard claims, asked questions of Merchant until satisfied with the answer and fed Merchant

information about the suspected shooter, including that the shooter wore a hoodie and dreadlocks.

a complaint); Est. of Roman v. City of Newark, 914 F.3d 789, 796 (3d Cir. 2019) (explaining courts may “consider

documents that a defendant attaches as an exhibit to a motion to dismiss if they are undisputedly authentic and the

plaintiff’s claims are based on them” (cleaned up)). Importantly, the Court relies on the affidavit only as it relates to

the allegations against Baynard. The Court does not accept those allegations as true.

(Id. ¶¶ 29, 37–39 & 41). And the photo array, according to Baynard, effectively singled him out

as the shooter. (Id. ¶ 60). The photo array depicted six individuals. (Id. ¶ 52). Baynard alleges

that he was the only person in the photo array who had dreadlocks at chin length and who matched

the height description provided by Merchant. (Id. ¶¶ 55–58). Baynard further alleges that he was

one of two individuals who were Black, whereas the other four had brown skin. (Id. ¶ 59).2

Baynard claims that the affidavit of probable cause omitted other exculpatory facts of

which Detective Sapienza was aware. First, at the hospital, Detective Sapienza interviewed a man

named Kelvin Barnes, who was present at the time of the shooting yet unable to identify the

shooter. (Id. ¶¶ 19 & 21). Second, at the hospital, Detective Sapienza also interviewed a man

named Anthony Greene, who drove Merchant to the hospital. (Id. ¶¶ 19–20). Greene informed

Detective Sapienza that he did not know Merchant and was not present at the shooting, even though

Merchant told Detective Sapienza that he was friends with Greene and that Greene was present at

the time of the shooting. (Id. ¶¶ 25 & 63). Third, while canvassing the area around Baynard’s

home, Detective Sapienza “located a camera affixed to 330 Wainwright Street owned by Harrison

Green who permitted [Detective] Sapienza to download ‘several clips.’” (Id. ¶ 48). Baynard

claims that the clips, “upon information and belief, demonstrate that [he] was at home at the time

of Merchant’s shooting.” (Id.). Fourth, “[u]pon information and belief, Detective Sapienza also

2 As detailed below, Baynard’s allegations concerning the photo array are flatly contradicted by the photo array

itself and the findings of the Superior Court of New Jersey. (D.E. No. 51-5, Ex. D (“Photo Array”) at 6; D.E. No. 51-

6, Ex. E, Feb. 15, 2019 Transcript of Wade Hearing (“Wade Hearing”) at 10:7–14). The Court may take judicial

notice of the photo array because it is “integral to or explicitly relied upon” in Baynard’s Amended Complaint. See

In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997) (quoting Shaw v. Digital Equip. Corp.,

82 F.3d 1194, 1220 (1st Cir. 1996)). The Court may take judicial notice of the Superior Court proceedings because

“[publicly] available court transcripts which have a bearing on the controversy at issue are one such type of document

which may be considered without converting a motion to dismiss into one for summary judgment.” Ojo v. Luong,

No. 14-4347, 2016 WL 1337274, at *4 (D.N.J. Apr. 5, 2016) (citing Sands v. McCormick, 502 F.3d 263, 268 (3d Cir.

2007). And “the Court need not accept as true allegations that contradict matters properly subject to judicial notice or

exhibit.” Garcia v. New Jersey State Prison, No. 05-3159, 2007 WL 2669332, at *1 (D.N.J. Sept. 6, 2007); see also

Lopez v. Howard, No. 06-2361, 2007 WL 708989, at *1 (3d Cir. Mar. 9, 2007) (taking “judicial notice of records from

the Delaware Supreme Court that contradict[ed] Lopez’s perfunctory allegations”).

obtained video footage of Merchant’s shooting which seriously called Merchant’s identification

into question.” (Id. ¶ 49).

After Baynard’s arrest, the case was initially referred to Assistant Prosecutor Meredith

Mona. (Id. ¶ 61). She declined to dismiss and continued to investigate the matter despite, Baynard

alleges, knowing that Merchant’s out-of-court identification was unreliable and that Merchant

refused to testify against Baynard. (Id. ¶¶ 67–72). At some point, Baynard moved to suppress

Merchant’s out-of-court identification and moved to dismiss the indictment. On February 25,

2019, the Superior Court of New Jersey denied Baynard’s motion to suppress, for failure to show

undue suggestibility, and his motion to dismiss, for the reasons expressed on the record. (D.E. No.

51-6, Ex. 6, Order).

On July 23, 2019, the charges against Baynard were dismissed after a new assistant

prosecutor was assigned to the matter. (Am. Compl. ¶¶ 73–76). The new prosecutor recommended

that the Superior Court dismiss the charges because “[t]here is no evidence outside of [Merchant]’s

identification to present at trial” and Merchant “repeatedly” said he “will not testify.” (D.E. No.

51-9, Ex. H, Recommendation at 2).3 Therefore, the new prosecutor concluded the “State will be

unable to sustain its burden of proof at trial.” (Id.)

B. Procedural History

On June 24, 2020, Baynard filed suit against Detective Sapienza and Assistant Prosecutor

Mona for malicious prosecution, malicious use and abuse of process, false arrest, and false

imprisonment under 42 U.S.C. § 1983; and for conspiracy to violate his civil rights under 42 U.S.C.

§ 1985. Detective Sapienza and Assistant Prosecutor Mona moved to dismiss. (D.E. Nos. 5 &

3 The Court may consider the assistant prosecutor’s recommendation for the same reasons the Court may

consider the affidavit of probable cause and the photo array. See supra nn. 1 & 2.

22). In response, Baynard withdrew his § 1985 claim but otherwise contested the motions. (D.E.

No. 12 at 8; D.E. No. 29 at 14).

On September 30, 2021, the Court granted the motions. (D.E. No. 43, Opinion; D.E. No.

44, Order).4 The Court held that Assistant Prosecutor Mona was entitled to absolute prosecutorial

immunity because Baynard’s claims against her “concern[ed] actions [that] Mona took as the

State’s advocate as part of the judicial phase of a criminal prosecution.” (Opinion at 6). The Court

also held that Baynard failed to state claims against Detective Sapienza for malicious prosecution,

false arrest, and false imprisonment because he failed to allege facts that negated probable cause

to arrest—an element shared by all three claims. (Id. at 8–13). Finally, the Court dismissed the

claim against Detective Sapienza for malicious use and abuse of process because Baynard “ha[d]

not identified any process that was misused or abused.” (Id. at 15). The Court’s dismissal was

without prejudice. (Id.).

On October 18, 2021, Baynard filed the Amended Complaint against Detective Sapienza

and Assistant Prosecutor Mona, asserting § 1983 claims for malicious prosecution, malicious use

and abuse of process, false arrest, and false imprisonment. (Am. Compl. ¶¶ 27–53). Detective

Sapienza and Assistant Prosecutor Mona separately moved to dismiss the Amended Complaint.

(D.E. Nos. 48 & 51). On December 1, 2021, the parties stipulated to dismissing Assistant

Prosecutor Mona with prejudice. (D.E. No. 52). The stipulation was entered the following day.

(D.E. No. 53). In his opposition to Detective Sapienza’s motion, Baynard consents to dismissal

of his claim for malicious use and abuse of process but otherwise opposes the motion. (D.E. No.

55 (“Opp. Br.”) at 11).

4 See Baynard v. Mona, No. 20-7723, 2021 WL 4473154 (D.N.J. Sept. 30, 2021).

II. LEGAL STANDARD

In assessing whether a complaint states a cause of action sufficient to survive dismissal

under Rule 12(b)(6), the Court accepts “all well-pleaded allegations as true and draw[s] all

reasonable inferences in favor of the plaintiff.” City of Cambridge Ret. Sys. v. Altisource Asset

Mgmt. Corp., 908 F.3d 872, 878 (3d Cir. 2018). “[T]hreadbare recitals of the elements of a cause

of action, legal conclusions, and conclusory statements” are all disregarded. Id. at 878–79 (quoting

James v. City of Wilkes-Barre, 700 F.3d 675, 681 (3d Cir. 2012)). The complaint must “contain

sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face,”

and a claim is facially plausible when the plaintiff “pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct alleged.” Zuber v.

Boscov’s, 871 F.3d 255, 258 (3d Cir. 2017) (first quoting Santiago v. Warminster Twp., 629 F.3d

121, 128 (3d Cir. 2010); and then quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

III. DISCUSSION

Baynard asserts claims of malicious prosecution, false arrest, and false imprisonment.

Each claim shares one element: lack of probable cause. See Harvard v. Cesnalis, 973 F.3d 190,

199–203 (2020) (analyzing probable cause for claims of false arrest, false imprisonment, and

malicious prosecutions); Dempsey v. Bucknell Univ., 834 F.3d 457, 467 (3d Cir. 2016) (same).

Detective Sapienza argues that the Amended Complaint fails to negate probable cause to arrest

and, moreover, that he is entitled to qualified immunity. (Opp. Br. at 7). The Court agrees and

addresses both points in turn.

A. Probable Cause

To survive a motion to dismiss, a plaintiff cannot merely plead lack of probable cause. See

Jecrois v. Sojak, 736 F. App’x 343, 347 (3d Cir. 2018); Strunk v. E. Coventry Twp. Police Dep’t,

674 F. App’x 221, 224 (3d Cir. 2016); Shaffer v. City of Pittsburgh, 650 F. App’x 111, 115 (3d

Cir. 2016); Sampson v. Pierro, No. 14-5983, 2017 WL 1032517, at *3 (D.N.J. Mar. 16, 2017).

Rather, the plaintiff must offer facts and circumstances plausibly suggesting that there was not

probable cause to arrest. Shaffer, 650 F. App’x at 115.

“Probable cause exists if there is a ‘fair probability’ that the person committed the crime at

issue.” Harvard, 973 F.3d at 199 (quoting Wilson v. Russo, 212 F.3d 781, 789 (3d Cir. 2000)).

“Put another way, ‘probable cause to arrest exists when the facts and circumstances within the

arresting officer’s knowledge are sufficient in themselves to warrant a reasonable person to believe

that an offense has been or is being committed by the person to be arrested.’” Dempsey, 834 F.3d

at 467 (quoting Orsatti v. N.J. State Police, 71 F.3d 480, 483 (3d Cir. 1995)). “[T]he constitutional

validity of the arrest does not depend on whether the suspect actually committed any crime.”

Wright v. City of Philadelphia, 409 F.3d 595, 602 (3d Cir. 2005). A court must assess probable

cause to arrest based on the totality of the circumstances known by the officer at the time he drafted

the affidavit of probable cause. Harvard, 973 F.3d at 200, 202 n.4. An officer who prepares an

affidavit of probable cause “is not free to disregard plainly exculpatory evidence, even if

substantial inculpatory evidence (standing by itself) suggests that probable cause exists.”

Dempsey, 834 F.3d at 469 (quoting Wilson, 212 F.3d at 790). When a plaintiff’s challenge to

probable cause rests on an officer asserting or omitting information in an affidavit of probable

cause, a court must (i) determine whether such “information was asserted or omitted . . . with at

least reckless disregard for the truth”; and (ii) if so, “perform a word-by-word reconstruction of

the affidavit” to determine whether the disputed information was material. Id. at 470.

Assuming that the Amended Complaint plausibly alleges that Detective Sapienza omitted

certain information with the requisite mental state, the Court proceeds to reconstruct, word-by-

word, the affidavit of probable cause. See Shaffer, 650 F. App’x at 114 (assuming the same on a

motion to dismiss and proceeding to the second element).

However, the Court will only reconstruct the affidavit using facts alleged in the Amended

Complaint that must be accepted as true. And two factual allegations—both pled on information

or belief—are not entitled to the presumption of truth. While the Federal Rules of Civil Procedure

permit pleading on information and belief, in order to so plead, the plaintiff must “show[] that the

requisite factual information is peculiarly within the defendant’s knowledge or control”; assert

more than mere “boilerplate and conclusory allegations”; and “accompany the[] legal theory with

factual allegations that make the[] theoretically viable claim plausible.” McDermott v. Clondalkin

Grp., Inc., 649 F. App’x 263, 267–68 (3d Cir. 2016) (quoting In re Rockefeller Ctr. Props., Inc.

Sec. Litig., 311 F.3d 198, 216 (3d Cir. 2002)). For two factual allegations, Baynard does not satisfy

these standards.

First, Baynard pleads that Detective Sapienza downloaded “‘several clips’” of video

surveillance near his home that, “upon information and belief, demonstrate that [he] was at home

at the time of Merchant’s shooting.” (Am. Compl. ¶ 48). This allegation is alarming, for it

suggests that Detective Sapienza deliberately arrested Baynard knowing he could not have been

the shooter. See Dennis v. City of Philadelphia, 19 F.4th 279, 289 (3d Cir. 2021) (“[I]t [i]s

axiomatic that ‘those charged with upholding the law are prohibited from deliberately fabricating

evidence and framing individuals for crimes they did not commit.’” (quoting Halsey v. Pfeiffer,

750 F.3d 273, 296 (3d Cir. 2014))). However, Baynard has not shown that the footage is peculiarly

in the possession or control of Detective Sapienza and, in fact, admits that Detective Sapienza

obtained the footage from another person, Harrison Green. (Am. Compl. ¶ 48). Baynard has not

specified why he cannot do the same or otherwise obtain the video by other means. Accordingly,

this allegation is not presumed to be true.

Second, Baynard pleads that, “[u]pon information and belief, Detective Sapienza also

obtained video footage of Merchant’s shooting which seriously called Merchant’s identification

into question.” (Id. ¶ 49). Like the first allegation, Baynard has not shown why the footage is

peculiarly in the possession or control of Detective Sapienza. Moreover, this allegation is vague

and conclusory: it is not clear what Baynard means when he alleges that the footage “seriously

called Merchant’s identification into question.” (Id.) This allegation is thus not entitled to the

presumption of truth.5

The appropriate word-by-word reconstruction of the affidavit of probable cause produces

the following:

I am a Detective assigned to the Newark Police Department

Shooting Response Team. I am responsible for the investigation

detailed hereinafter involving a shooting incident. On 6/30/18 a

male was shot in the chest, arm, and leg and was transported via

privately owned automobile to Newark Beth Israel. This male was

rushed into emergency surgery where he went into cardiac arrest

twice during the surgery and life saving measures were performed

to save his life.

Surveillance video was retrieved from the area. On 7/3/18 I was

able to obtain a sworn audio statement from the victim[. At the time

of the interview, the victim was still in the hospital, recovering

from his injuries. During the interview, the victim was high on

opioids and physically and mentally impaired from his injuries.]

who [The victim] advised me he was standing in front of 432 Leslie

5 Notably, in his Amended Complaint, Baynard lists in bullet-point format several facts that “Detective

Sapienza’s affidavit of probable cause excluded” (Am. Compl. ¶ 63), but as Detective Sapienza points out, Baynard

“does not” include allegations “regarding the surveillance video[s]” (Mov. Br. at 17). Nor does he include those facts

in his opposition brief when he lists the “critical information” missing from the affidavit of probable cause. (Opp. Br.

at 6). Thus, while he lodges allegations in his Amended Complaint and opposition brief concerning the surveillance

videos, he does not make much of them or otherwise appear to advance his case based on them.

Separately, in light of the claims that Baynard makes concerning the footage, the State of New Jersey would

have been under a duty to disclose the footage to him during his criminal prosecution pursuant to Brady v. Maryland,

373 U.S. 83 (1963), and its progeny. For all the claims Baynard makes concerning police and prosecutorial

misconduct, he does not assert a Brady claim.

Street when a male clad in a hooded sweatshirt, walked up to him,

yelled out “Yo!”, took off the hood, looked at him, and discharged

a handgun several times striking him multiple times. The victim

stated he was transported to NBIMC where he was rushed into

emergency surgery and “died” twice on the operating table. [At the

time of the shooting, it was dark out and the victim was not

wearing his corrective lenses and was under the influence of

opioids. The victim initially said he did not see the shooter.

However, the] The victim also[eventually] provided a physical

description of the male. [The victim said that shooter was skinny

and weighed approximately 145 pounds. The victim also said the

shooter was brown.] The victim knows where the male lives and

stated he sees him outside this house everyday. The victim also

knows the male drives a blue mini van and recently died the tips

of his dreadlocks blonde however, he does not know his name. [In

addition, the victim could not indicate the length of the shooter’s

dreadlocks, give a full description of the shooter’s face, or

specify whether the shooter had facial hair or distinguishing

features on his face or elsewhere.] Detective Pisano and I then

drove pass 315 Wainwright which is the residence identified by the

victim where the suspect lives. Parked in the driveway was a Blue

mini-van. The license plate was recorded. Upon returning to our

office, the license plate was ran and the vehicle was checked for

moving violations. One such male was found to have numerous

moving violations issued to him in this vehicle. This male, Azaiah

Baynard was then placed in a photo array. [The photo array

consisted of four men with brown skin complexion and two

Black men, and five of the men wore dreadlocks.] A photo array

was then shown to the victim who positively identified Baynard as

the male who shot him. [In contrast to the victim’s description,

Baynard weighs approximately 180 pounds and is Black.]

[At the hospital, I interviewed two eyewitnesses to the shooting.

One witness denied being present at the shooting and denied

knowing Merchant, and he stated that he drove Merchant to the

hospital only after seeing him injured. However, this witness

was present at the shooting and is friends with Merchant. The

other witness said he was unable to identify the shooter.]

Additional video surveillance was obtained from Wainwright Street

which shows the same mini van which Baynard is known to operate

driving down the block a few minutes after the shooting.

It should be noted I was able to confirm with the Doctors of Newark

Beth Israel that the victim did in fact go into cardiac arrest several

times during his surgery.

[Merchant has indicated that he does not want his identification

to be used in court and does not want to testify against Baynard.]

(Aff. of Probable Cause (emphasis, additions, and alterations added)).6

Detective Sapienza argues that the reconstructed affidavit does not negate probable cause

to arrest. (Mov. Br. at 31). In opposition, Baynard argues there was no probable cause to arrest

him because Merchant’s identification was wholly unreliable and was the only evidence against

him. (Opp. Br. at 8). In particular, according to Baynard, Merchant’s identification was unreliable

because (i) he knew Baynard from before the shooting; (ii) he was a known opioid user and was

under the influence during the shooting, initial interview, and later identification; (iii) two other

eyewitnesses could not identify the shooter; (iv) he was not wearing his corrective lenses, and it

was dark outside at the time of the shooting; (v) he initially said he did not see the shooter and

later said he could not detail the shooter’s face; and (vi) he indicated that he would not testify in

court. (Opp. Br. at 9–10). The Court agrees with Detective Sapienza.

The Court begins with the presumption that there was probable cause because Merchant,

the victim, identified Baynard as the shooter. “Statements of a victim witness are typically

sufficient to establish probable cause in the absence of independent exculpatory evidence or

substantial evidence of a witness’s own unreliability that outweighs the probable cause that

otherwise exists.” Dempsey, 834 F.3d at 477–48. “When a police officer has received a reliable

identification by a victim of his or her attacker, the police have probable cause to arrest.” Id. at

448 (quoting Sharrar v. Felsing, 128 F.3d 810, 818 (3d Cir. 1997)).

6 Though Detective Sapienza did conduct a word-by-word reconstruction, Baynard did not, even after the

Court explained that it is a requirement in the Third Circuit. (Opinion at 10–11 (citing Dempsey, 834 F.3d at 470;

Jecrois v. Sojak, 736 F. App’ x 343, 347 (3d Cir. 2018)). The above reconstructed affidavit is based on the Court’s

independent review of the allegations in the Amended Complaint and the parties’ arguments.

Although Baynard alleges some unreliability in the identification, which is reflected in the

reconstructed affidavit, “some unreliability or exculpatory evidence will not fatally undermine

probable cause otherwise established.” Id. (cleaned up). True, Merchant’s identification is less

reliable in view of the nighttime conditions of the shooting and his intoxication during the shooting

and investigation. Also true, the identification is less reliable because other witnesses could not

corroborate it, and because Merchant initially said he did not see the shooter and then later said he

could not detail the shooter’s face or other personal characteristics.

But those facts are not fatal,7 for probable cause must be assessed under the totality of the

circumstances. The Third Circuit has upheld probable cause “where a victim identified the arrestee

in a photo array,” just as Merchant did here, “but other evidence suggested the perpetrator was

significantly taller than the arrestee, a different victim did not identify the arrestee, and another

witness claimed to have seen the arrestee at the time of the crime.” Id. (citing Wilson, 212 F.3d at

791–92). Likewise, the Third Circuit has upheld probable cause to arrest “where a victim first

identified a different person as her assailant before changing her story to identify the arrestee.” Id.

(citing Sharrar, 128 F.3d at 818–19).

Though not immediately during the initial interview, Merchant eventually identified

Baynard—a person with whom Merchant was previously familiar. Contrary to Baynard’s claim,

Merchant’s previous familiarity with Baynard enhances the reliability of his identification, and it

is not plausible to suggest otherwise. See United States v. Dennis, No. 17-0246, 2018 WL

7 See Wilson, 212 F.3d at 791 (upholding probable cause even though the victim’s “testimony should be viewed

with some skepticism because her identification of Wilson was inherently incompatible with her description of the

robber”); Norales v. Acevedo, No. 20-2044, 2021 WL 739111, at *6 (S.D.N.Y. Feb. 24, 2021) (“An officer’s

knowledge that a witness to a crime may have lied in the past, even about the person who is arrested, and that the

witness was under the influence of drugs or alcohol at the time of the crime, does not mean that the officer cannot rely

on the witness in determining whether there is probable cause to make an arrest.”); United States v. McCottrell, No.

18-1006, 2020 WL 2559650, at *5 (E.D. Mo. Mar. 18, 2020) (“Even if C.C. was under the influence of heroin during

her initial statement, text messages and toll information in C.C.’s phone corroborated her statement about her contact

with T.”), report and recommendation adopted, 2020 WL 2557030 (E.D. Mo. May 20, 2020).

6266809, at *6 & n.41 (M.D. Pa. Nov. 30, 2018) (collecting cases); United States v. Veloz, 109 F.

Supp. 3d 305, 312 (D. Mass. 2015) (“It is uniformly held by state and federal courts, that where a

witness is shown to have had prior familiarity with a defendant, a due process hearing need not be

held, as no amount of police suggestion is likely to have influenced the witness’s identification.”),

aff’d, 948 F.3d 418 (1st Cir. 2020). Moreover, Merchant pointed out Baynard’s address. And as

outlined in the reconstructed affidavit of probable cause, and without objection from Baynard, the

police corroborated some of Merchant’s statements, rendering his statements more reliable than a

typical victim. See Bridges, 809 F. App’x at 72 (affirming dismissal of Fourth Amendment claim

on motion to dismiss for failure to negate probable cause supporting a search warrant, which was

based on a confidential informant, where the “affidavit provided corroborating evidence”).

Indeed, the police went to the address provided by Merchant and observed a blue minivan parked

in the driveway, discovered that the blue minivan was linked to Baynard, and uncovered

surveillance footage showing the same blue minivan in the area of the shooting and around

Baynard’s home just minutes after the shooting.

Baynard also takes issue with what he claims were unduly suggestive investigative

procedures. But the Amended Complaint hardly alleges undue suggestibility and, to the extent it

does, those allegations are contradicted by two documents of which the Court can take judicial

notice. See supra note 2.

First, Baynard accuses Detective Sapienza of feeding information to Merchant—namely,

that the shooter wore a hoodie and dreadlocks. (Opp. Br. at 2–3). However, that information does

not reasonably render the investigation unduly suggestion. Indeed, a hoodie is common apparel,

and five of the six people in the photo array shown to Merchant wore dreadlocks. (Photo Array at

6). Still, Merchant chose Baynard out of the array.

Second, Baynard accuses Detective Sapienza of asking questions until satisfied with the

answers. (Opp. Br. at 2–4). But the Amended Complaint, at most, outlines routine interview

techniques of a victim who suffered a traumatic event. Baynard cites no authority for the

proposition that police cannot ask a victim follow-up questions.

Third, Baynard claims that the photo array effectively singled him out as the shooter by

showing no other person with dreadlocks at chin length or with the appropriate height description.

(Opp. Br. at 5). But the photo array did not show any suspect’s height. (Photo Display at 6). And

as found by the Superior Court of New Jersey, with respect to “length of the hair, . . . no one stands

out.” (Wade Hearing at 10:7–14). Moreover, the photo of Baynard shows him wearing dreadlocks

at shoulder length, not at chin length. (Photo Array at 6).

Finally, Baynard claims that the photo array showed only two Black men—him and

another. (Opp. Br. at 5). But in light of the circumstances, that fact does not render the

identification unduly suggestive. In fact, Merchant described Baynard as having a brown skin

complexion in the initial interview, so there was nothing unduly suggestive about using a photo

array with Baynard as one of two Black men. Moreover, Merchant still identified Baynard—the

only person in the array who, as far as the Court can tell, lives at the house previously identified

by Merchant and who drove a blue minivan.

For the above reasons, the Court holds that the Amended Complaint fails to negate probable

cause to arrest.

B. Qualified Immunity

Detective Sapienza also argues he is entitled to qualified immunity. (Mov. Br. at 36–38).

“Qualified immunity ‘gives ample room for mistaken judgments’ by shielding ‘all but the plainly

incompetent or those who knowingly violate the law.’” Olson v. Ako, 724 F. App’x 160, 164 (3d

Cir. 2018) (quoting Malley v. Briggs, 475 U.S. 335, 341, 343 (1986)). “This accommodation

recognizes our societal interest in law enforcement’s pursuit of investigations unconstrained by

the constant fear of being sued.” Id. (citing Hunter v. Bryant, 502 U.S. 224, 229 (1991)). “Officers

are entitled ‘not to stand trial or face the other burdens of litigation’ unless it can be shown that (1)

they violated a statutory or constitutional right and (2) the right was clearly established at the time

of the conduct.” Id. (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). “The ‘clearly

established’ element means that the legal principle at issue must ‘clearly prohibit the officer’s

conduct in the particular circumstances before him.’” Burdsall v. W. Whiteland Twp., No. 18-

3188, 2021 WL 3562845, at *6 (E.D. Pa. Aug. 11, 2021) (quoting District of Columbia v. Wesby,

138 S. Ct. 577, 590 (2018)).

In the context of the Fourth Amendment, specificity takes particular importance because

probable cause is an imprecise standard and therefore leaves officers unable “to know how the

general standard of probable cause applies in ‘the precise situation encountered.’” Wesby, 138 S.

Ct. at 590 (quoting Ziglar v. Abbasi, 137 S. Ct. 1843, 1866 (2017)). Accordingly, the Supreme

Court has “stressed the need to ‘identify a case where an officer acting under similar circumstances

. . . was held to have violated the Fourth Amendment.’” Id. (quoting White v. Pauly, 137 S.Ct.

548, 552 (2017) (per curiam)). While a case need not be directly on point, “existing precedent

must place the lawfulness of the particular arrest ‘beyond debate.’” Id. (quoting Ashcroft v. al-

Kidd, 563 U.S. 731, 741 (2011)). There might be “the rare obvious case where the unlawfulness

of the officer’s conduct is sufficiently clear even though existing precedent does not address

similar circumstances,” but “a body of relevant case law is usually necessary to clearly establish

the answer with respect to probable cause.” Id. (cleaned up).

Because the Amended Complaint fails to sufficiently plead a violation of a constitutional

right, it follows that the Amended Complaint does not sufficiently plead the violation of a clearly

established right. Even still, Baynard has not identified, nor has the Court uncovered, existing

precedent clearly establishing that his arrest was unlawful. Instead, Baynard repeats his probable

cause arguments and claims that it was objectively unreasonable for Detective Sapienza to rely on

the arrest warrant and affidavit of probable cause. (Opp. Br. at 11-12). But this is the type of

imprecision the Supreme Court warned about in Wesby, 138 S. Ct. at 590. Accordingly, the law

does not clearly establish that the particular circumstances of this case render Baynard’s arrest

unlawful. Detective Sapienza is therefore, at a minimum, entitled to qualified immunity.

IV. CONCLUSION

Based on the foregoing, Detective Sapienza’s motion to dismiss (D.E. No. 51) is

GRANTED. The Amended Complaint is dismissed without prejudice.*

i ; = AAf.—

Dated: June 10, 2022 / on. Estier Salas, U.S.D.J.

(

8 The Amended Complaint is dismissed without prejudice only in view of the alarming allegation that

Detective Sapienza may have been in possession of a video demonstrating that Baynard was not the shooter. (Am.

Compl. 7 48). Indeed, Baynard’s claims might be able to proceed if he sufficiently pleads that fact on “information

and belief” or if he drops the “information and belief’ caveat. Baynard is permitted one last amendment, and

Baynard’s counsel is reminded of his duties under Federal Rule of Civil Procedure 11.

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