DIAZ v. MERCED

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

OMAYRA DIAZ,

Plaintiff, Civil Action No. 21-11831 (SDW) (JRA)

v.

OPINION

SGT. MICHELLE MERCED, OFFICER

ROBERTO CANCEL, OFFICER JOSHUA June 24, 2024

TORRES, OFFICER STEVEN GIL, AND

CITY OF PASSAIC, NEW JERSEY,

Defendants.

WIGENTON, District Judge.

Before this Court is Sergeant Michelle Merced, Officer Roberto Cancel, Officer Joshua

Torres, Officer Steven Gil, and the City of Passaic New Jersey’s (collectively “Defendants”)

Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 56 (“Rule”). (D.E.

82) and Plaintiff’s Cross Motion for Summary Judgment.1 Subject matter jurisdiction is proper

pursuant to 28 U.S.C. § 1331. Venue is proper pursuant to 28 U.S.C. § 1391. This opinion is

issued without oral argument pursuant to Rule 78. For the reasons stated herein, Defendants’

motion is GRANTED; and Plaintiff’s motion is DENIED.

I. BACKGROUND AND PROCEDURAL HISTORY2

1 Plaintiff did not file opposition to the instant motion but instead filed a cross motion for summary judgment. (see

D.E. 83.) Notwithstanding, this Court considers Plaintiff’s submission an opposition and a cross motion for summary

judgment.

2 This Court has received and reviewed the USB drive that contained the officers’ body-camera footage of the incident.

The footage supplements the facts outlined in this section.

In the early hours of February 24, 2020, Defendant Sergeant Michelle Merced (“Sgt. Merced”)

saw a double-parked car in front of City Hall at 330 Passaic Street and decided to run a check on

the license plates. Her search revealed that the car owner, Destiny Centano’s (“Centano”) license

was suspended. This prompted Sgt. Merced to approach the car to investigate the scene further.

As she approached the car, she saw Plaintiff, a front seat passenger, “jerk forward in her seat”

which led her to conclude “that something may have been put under the seat.” (D.E. 82-1 at 3.)

Sgt. Merced instructed the driver, Centano, to roll down the window which released the strong and

unmistakable smell of marijuana, a then illegal substance. Officer Roberto Cancel arrived at the

scene, also smelled marijuana, and asked Centano about the smell to which Centano admitted to

having smoked marijuana at some earlier time. Officer Cancel approached the passenger side,

where Plaintiff was seated, and smelled marijuana there as well. He asked Plaintiff to confirm her

identity. Plaintiff responded that because she is a passenger, she should not be questioned. (D.E.

1. at 5.) She refused to disclose her identity, claimed that she did not know the last four digits of

her social security number, and did not respond to any further questioning. Plaintiff alleges that

Sgt. Merced threatened to arrest her and threatened to file a “false report” if she did not identify

herself. (D.E. 1 at 5.)

Centano and Plaintiff were asked to step out of the vehicle so it could be searched, and they

were informed that the car would be towed. Officer Cancel recovered a bag of marijuana from

under the front passenger seat that Centano admitted belonged to her and Centano was placed

under arrest. Plaintiff alleges that the other white substance found in the car was a “bag of salt”

that Centano had for her “nose ring.” (D.E. 37 at 3.) The officers determined that because Plaintiff

also smelled of marijuana and refused to identify herself, they had probable cause to arrest and

search Plaintiff as well. Plaintiff objected to being detained and searched and alleges that she was

forcefully arrested. (D.E. 1 at 8.) The search of Plaintiff was captured on the officers’ bodycam

and revealed the recovery of a crack cocaine pipe found in her jacket pocket. Once at the police

station, Plaintiff disclosed her identity, and it was discovered that she had outstanding warrants for

her arrest. (D.E. 82-1 at 3.)

Plaintiff, pro se, filed her Complaint along with her application to proceed in forma pauperis

on May 26, 2021, pursuant to 42 U.S.C. § 1983. (D.E. 1.) She alleges that Defendants violated

her Fourth and Fourteenth Amendment rights during her search and subsequent arrest. Defendants

filed their Answer on October 19, 2021, summarily denying the allegations and raised the

affirmative defense of qualified immunity. (D.E. 20.) Plaintiff amended her Complaint on March

10, 2022, (D.E. 37), and Defendants filed their Answer, renewing their affirmative defenses on

October 14, 2022. (D.E. 58.) All discovery was completed and on January 19, 2024, Defendants

filed the instant motion. Plaintiff did not file opposition, but instead filed her own motion for

summary judgment. (D.E. 83.)

II. LEGAL STANDARD

“Summary judgment is proper if there is no genuine issue of material fact and if, viewing the

facts in the light most favorable to the non-moving party, the moving party is entitled to judgment

as a matter of law.” Tse v. Ventana Med. Sys., Inc., 297 F.3d 210, 218 (3d Cir. 2002); see

Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d

265 (1986). “The judge's function at the summary judgment stage is not to weigh the evidence

and determine the truth of the matter, but to determine whether there is a genuine issue for trial.”

Id.; see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

III. DISCUSSION

a. 42 U.S.C. § 1983

The Civil Rights Act of 1871 provides for a private right of action under 42 U.S.C. § 1983

for any citizen of the United States who can establish: (1) that their “rights, privileges, or

immunities secured by the Constitution and laws” have been violated; and (2) by any person who

was acting under the color of state or federal law.

An action under the color of state law “requires that one liable under § 1983 [has] exercised

power possessed by virtue of state law and made possible only because the wrongdoer is clothed

with the authority of state law.” Abbott v. Latshaw, 164 F.3d 141, 146 (3d Cir.1998) (internal

quotation and citation omitted). Setting aside the City of Passaic, Defendants here are all police

officers, and the offending conduct is alleged to have happened during a traffic stop, an activity

that is within their authority and duty as police officers. See e.g., Harvey v. Plains Twp. Police

Dep't, 635 F.3d 606 610 (3d Cir. 2011). Thus, Defendants were acting under the color of state law

at the time of the traffic stop and subsequent search and arrest.

Plaintiff alleges that Defendants violated her Fourth and Fourteenth Amendment rights

when the officers asked her to verify her identity, step out of the car, conducted a search of her

person, and arrested her. The Fourth Amendment protects a person against unreasonable searches

and seizures. “[A] person has been seized within the meaning of the Fourth Amendment only if,

in view of all the circumstances surrounding the incident, a reasonable person would have believed

that [she] was not free to leave.” Schneyder v. Smith, 653 F.3d 313, *322 (3d Cir. 2011) (quoting

United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980)) (internal

quotation marks omitted); see United States v. Hester, 910 F.3d 78 (3d Cir. 2018) (explaining that

a seizure is a seizure whether the car is moving or parked). There is no dispute that Plaintiff was

seized and subsequently searched. Therefore, the focus for this Court is whether the search and

seizure were unreasonable and thus unlawful under the Fourth Amendment.

“Warrantless searches and seizures are presumptively unreasonable and are therefore

prohibited under the Fourth Amendment, unless an exception applies.” Hester, 910 F.3d at 84

(quoting United States v. Mundy, 621 F.3d 283, 287 (3d Cir. 2010)). To determine the

reasonableness of a seizure, this Court considers “whether a reasonable, trained officer standing in

[Sgt. Merced]’s shoes could articulate specific reasons justifying the stop.” Id. at 87. “The

Supreme Court has repeatedly recognized that a reasonable suspicion may be the result of any

combination of one or several factors including specialized knowledge and investigative inferences

as well as observation of suspicious behavior.” United States v. Brown, 448 F.3d 239, 247 (3d

Cir. 2006); see also Illinois v. Wardlow, 528 U.S. 119, 124 S. Ct. 673, 145 L. Ed. 2d 570 (2000)

(noting that “nervous, evasive behavior is a pertinent factor in determining reasonable suspicion”).

Here, Sgt. Merced saw the car double parked in front of City Hall in the early hours of the

morning, well outside of business hours, with two occupants seated inside. The circumstance

appeared unusual and properly generated curiosity as to what was taking place. Sgt. Merced ran

a search on the car’s registration and found that Centano’s license had been suspended. This

prompted reasonable suspicion that the car was being operated unlawfully. Sgt. Merced then

approached the car and conducted a lawful seizure. Both Sgt. Merced and Officer Cancel

encountered the clear and unmistakable smell of marijuana emanating from both Centano and

Plaintiff at a time when marijuana was an illegal substance in the state of New Jersey. This gave

the officers probable cause to search the car as well as its passengers. See United States v. Jackson,

682 F. App'x 86 (3d Cir. 2017); see also United States v. Ramos, 443 F.3d 304, 308 (3d Cir. 2006)

(“[I]t is well settled that the smell of marijuana alone can be enough to establish probable cause

for an arrest.”) (internal quotation marks omitted). Plaintiff refused to disclose her true identity

and rejected questioning. The search revealed a bag of marijuana, a crack pipe, and a white

substance. Plaintiff and Centano were arrested and brought to the police station where it was

determined that Plaintiff had outstanding arrest warrants. Neither the search nor the subsequent

arrest of Plaintiff was unreasonable or unlawful. The body camera footage does not reveal any

unreasonable or excessive use of force beyond what was necessary during the arrest.3 Thus,

Plaintiff’s Fourth Amendment rights were not violated.

Plaintiff further alleges an equal protection violation under the Fourteenth Amendment.

However, she has not alleged any supporting facts, nor does she proffer any evidence or brief this

issue in any way. Consequently, Plaintiff’s equal protection claim is deemed waived.4 Because

Plaintiff has not articulated any other constitutional rights or violations, her claims arising under

42 U.S.C. § 1983 are unsupported.

This Court need not reach the question of qualified immunity because there are no other

surviving claims or genuine issues of material fact in this case. Tse, 297 F.3d at 218.

Notwithstanding, qualified immunity would attach because, based on the foregoing, there was no

violation of a clearly established right. See e.g. Mirabella v. Villard, 853 F.3d 641, 648 (3d Cir.

2017) (“Qualified immunity shields federal and state officials from money damages unless a

3 “The test of reasonableness under the Fourth Amendment is whether, under the totality of the circumstances, ‘the

officers’ actions are “objectively reasonable” in light of the facts and circumstances confronting them, without regard

to their underlying intent or motivations.’” Est. of Smith v. Marasco, 318 F.3d 497, 515 (3d Cir. 2003) (quoting

Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 1872, 104 L.Ed.2d 443 (1989)); see O'Keefe v. Lehigh Univ.,

No. 23-1235, 2024 WL 138578 *1 (3d Cir. Jan. 12, 2024) (affirming that officers did not use unreasonable force when

conducting a lawful arrest nor was it unreasonable to breathalyze the plaintiff under the circumstances).

4 “It is well settled that an appellant's failure to identify or argue an issue in his opening brief constitutes waiver of

that issue on appeal.” United States v. Pelullo, 399 F.3d 197, 222 (3d Cir.2005). Even when liberally construing pro

se litigants’ briefs, only arguments “actually presented” may be considered. Id.; see Poku v. Himelman, 448 F. App'x

217 (3d Cir. 2011). District courts have adopted this standard as well. See Hoffmann-La Roche Inc. v. Apotex Inc.,

No. CIV.A. 07-4417 SRC, 2013 WL 323335 *2 (D.N.J. Jan. 25, 2013) (finding that an issue not properly articulated

in a summary judgment brief is deemed waived).

plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and

(2) that the right was ‘clearly established’ at the time of the challenged conduct.”) (internal citation

omitted).

IV. CONCLUSION

For the foregoing reasons, Defendant’s Motion for Summary Judgment is GRANTED; and

Plaintiff’s cross motion is DENIED. An appropriate order follows.

s/ Susan D. Wigenton______________________

SUSAN D. WIGENTON, U.S.D.J.

Orig: Clerk

cc: Parties

Jose R. Almonte, U.S.M.J.