Anne Arundel County v. Chu, 511

• Decision Date: 01 September 1986
• Docket Number: No. 511,511
• Citation: 518 A.2d 733,69 Md.App. 523
• Parties: ANNE ARUNDEL COUNTY, Maryland v. Peter CHU, et al. ,
• Court: Court of Special Appeals of Maryland

Page 523

69 Md.App. 523

518 A.2d 733

ANNE ARUNDEL COUNTY, Maryland v. Peter CHU, et al.

No. 511, Sept. Term, 1986.

Court of Special Appeals of Maryland.

Jan. 6, 1987.

Ronald M. Levitan, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., Mark D. McCurdy, Asst. Atty. Gen., Baltimore, and Philip Caroom, Asst. State's Atty. for Anne Arundel County, Annapolis, Md., on brief), for appellant.

Daniel F. Goldstein (Elizabeth M. Kameen, Andrew Radding and Blades & Rosenfeld, P.A., on brief), Baltimore, for appellees.

Argued before MOYLAN, BELL (ROSALYN B.) and POLLITT, JJ.

MOYLAN, Judge.

The decision of the Circuit Court for Anne Arundel County, which we hereby reverse, went wrong in many different ways. The three appellees, Nancy Chu, Peter Chu, and the Odenton Dental Care Clinic, succeeded in having the trial judge impose sanctions for the violation of a statute, Article 27, § 551, when the terms of the statute had never been violated. The statute was treated as tantamount to the Fourth Amendment to the United States Constitution, the provisions of which were not yet ripe for invoking quite aside from the fact that they bore little relationship to the Maryland statute. The appellant, Anne Arundel County, has brought the present appeal.

The Anne Arundel County Police Department was investigating the possibility that the appellees were perpetrating a fraud on the State of Maryland by billing Maryland Blue Cross/Blue Shield for dental work which had, in fact, never been done. In furtherance of that investigation, Detective David H. Cordle applied for a search and seizure warrant to seize various records in the possession of the appellees. There is no question but that the application for the warrant, detailing initial complaints about improper billing from the Massachusetts Mutual Life Insurance Company and the results of an extensive audit of the appellees conducted by Maryland Blue Cross/Blue Shield, contained abundant probable cause to believe that evidence of crime would be found in the records of the dental care clinic. The warrant was signed by Judge Bruce C. Williams and the search was executed.

On the very day that the search took place, before a grand jury had considered any of the evidence and before any criminal charges were brought against any of the appellees, the appellees moved for a return of the seized property under the provisions of § 551.

Although redress was formally sought under the very specific and very limited provisions of a Maryland statute, all parties charged pell-mell into an utterly inappropriate constitutional battle over the provisions of Fourth Amendment search and seizure law. The argument put forth by the appellees took no note of the many opinions of the Court of Appeals and of this Court over the last four years that have discussed at great length the minimal resemblance between § 551 and the Fourth Amendment. State v. Intercontinental, Ltd., 302 Md. 132, 486 A.2d 174 (1985); Director of Finance v. Cole, 296 Md. 607, 647, 465 A.2d 450 (1983) (concurring and dissenting opinion by Eldridge, J.); In Re Special Investigation No. 228, 54 Md.App. 149, 458 A.2d 820 (1983); Howell v. State, 60 Md.App. 463, 483 A.2d 780 (1984).

The appellees brought a civil suit for the return of personal property. At the trial below and in both brief and argument before us, however, their argument and their supporting authority deal exclusively with the doctrine of excluding evidence from a criminal case because of a violation of the Fourth Amendment. In scrambling two essentially distinct problems, each with its own distinct remedy, the appellees neglected what we pointed out in In re Special Investigation No. 228, supra, to be:

"[T]he frequently neglected point that personal property law is not coterminous with constitutional law--that the entitlement to have personal property (which may coincidentally be evidence) returned is not coterminous with the right to have excluded from one's criminal trial evidence (which may coincidentally be one's personal property)."

54 Md.App. at 152, 458 A.2d 820. We pointed out, at the very outset of that opinion, that "the property right and the constitutional right have available separate avenues of vindication." Id. We repeat here what we said there, "This appeal arises from a blurring of that distinction." Id.

We turn our attention initially to what should have been the only issue in this case--whether, under the explicit provisions of § 551, the appellees were entitled to the return of the seized records. In looking only at the unambiguous terms of the statute and not at the vast and extrinsic baggage of Fourth Amendment law, we are conscious of the distinction we sought to draw so carefully in In re Special Investigation No. 228, supra:

"[A] close reading of § 551 side by side with the Fourth Amendment yields dozens of major and minor distinctions that are heedlessly plastered over by the slapdash assumption that the Maryland statute is neither more nor less than a legislative embodiment of Mapp v. Ohio. What emerges from the analysis is that the federal Exclusionary Rule and the Maryland statute, though overlapping minimally as they touch probable cause and possibly particularity of description, are totally divergent remedies, with vastly diverse histories, serving completely different purposes, utilizable at significantly different stages of legal proceedings, available to different classes of litigants with different problems, and emanating from separate sovereigns." (Footnote omitted).

54 Md.App. at 176-177, 458 A.2d 820.

Subsection (a) of § 551 deals with the sanction of ordering that the seized property "be restored to the person from whom it was taken" in certain instances of noncompliance with the requirements of the section. Three times, it spells out with exactitude the three situations that will trigger its sanction of causing the property to be restored. Two of those situations, not here pertinent, deal with flaws not in the issuance of a warrant but in the execution of the warrant. ¹ The only triggering condition for the sanction remotely applicable in this case is:

"If, at any time, on application to a judge of the circuit court of any county ... it appears ... that there is no probable cause for believing the existence of the grounds on which the warrant was issued, ... said judge must cause it to be restored to the person from whom it was taken."

Probable cause is substantive in nature. Its measurement is unaffected by the propriety or impropriety of the methods employed to gather the probable cause. In this case, it is beyond dispute that the application for the search and seizure warrant established bountiful probable cause to believe that the records of the dental care clinic might well contain evidence of fraud. The application recited a number of instances of demonstrated false claims for work that was never done. Indeed, the appellees do not argue here and did not argue below that probable cause, as a quantitative thing, was not established. The trial judge neither found nor obliquely indicated that probable cause was not established. The trial judge nonetheless ordered the seized property to be restored to the appellees, and this appeal has been taken from that order. At the simplest level, we reverse the decision of the trial court because the only pertinent condition spelled out by § 551(a) for applying its sanction of restoring the seized property was not remotely satisfied.

The future guidance of bench and bar, however, compels us to attempt some analysis of how this litigation went so far astray. Everyone treated the § 551 motion in this case as tantamount to an invocation of the Fourth Amendment's Exclusionary Rule of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). In grafting the whole body of Supreme Court law dealing with that subject onto the Maryland statute, the theory was advanced that the probable cause set out in the application for the warrant was the "fruit of the poisonous tree." Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920). It was argued that the audit of the appellees by Blue Cross/Blue Shield was a subterfuge undertaken at the request of the Anne Arundel County Police Department and that the consent ostensibly given by the appellees to the Blue Cross/Blue Shield auditors was vitiated by the failure of the auditors to inform the appellees of the true purpose of the audit. With the support somehow of Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the trial court found that the search warrant was the tainted product or exploitation of the primary illegality. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). What everyone neglected to notice was that none of this has anything to do with § 551.

Section 551 does not remotely involve, explicitly or implicitly, the Exclusionary Rule of evidence. It is not in pari materia with either the Federal Fourth Amendment or Article 26 of the Maryland Declaration of Rights. In tracing its history and development exhaustively in In re Special Investigation No. 228, at 54 Md.App. 159-177, 458 A.2d 820, we pointed out that it was first enacted by the General Assembly in 1939, as a specific provision of law under the subtitle "Gaming." Its purpose was not to vindicate constitutional liberties but to determine who got to keep the cash following police raids on bookmaking parlors and lottery headquarters.

The divergences between the Exclusionary Rule and § 551 are legion. The Exclusionary Rule deals exclusively with matters of constitutional dimension; § 551 deals in significant part with infractions that are of less than constitutional stature. The Exclusionary Rule concerns only improper searches and seizures; two of the three situations in which § 551 requires the return of seized property concern proper searches and seizures. The Exclusionary Rule deals...