Cahill v. Montgomery County

• Decision Date: 01 September 1986
• Docket Number: No. 1680,1680
• Citation: Cahill v. Montgomery County, 528 A.2d 527, 72 Md.App. 274 (Md. App. 1986)
• Parties: Judith A. CAHILL v. MONTGOMERY COUNTY, Maryland, et. al
• Court: Court of Special Appeals of Maryland

Page 274

72 Md.App. 274

528 A.2d 527

Judith A. CAHILL v. MONTGOMERY COUNTY, Maryland, et. al.

No. 1680 Sept. Term, 1986.

Court of Special Appeals of Maryland.

July 16, 1987.

C. Christopher Brown (Elizabeth M. Kameen and Brown & Goldstein, on brief), Baltimore, for appellant.

Linda D. Berk, Associate Co. Atty. (Paul A. McGuckian, Co. Atty. and Bruce P. Sherman, Sr. Asst. Co. Atty., on brief), Rockville, for appellees.

Argued before MOYLAN, KARWACKI and ROBERT M. BELL, JJ.

ROBERT M. BELL, Judge.

This appeal arises out of a civil rights action, filed pursuant to 42 U.S.C. § 1983, in the Circuit Court for Montgomery County by Judith Cahill, appellant, against Montgomery County, Maryland, Thomas B. Ferguson and Laurie A. Roberts, appellees. ¹ The complaint alleged that appellant's Fourth Amendment rights had been violated by appellees' entry upon and search of her premises pursuant to an administrative search warrant. Appellant sought compensatory and punitive damages, an injunction against further violations of the law, a declaration that appellees' actions were unlawful, and attorney's fees and expenses pursuant to 42 U.S.C. § 1988 ². The parties having filed cross-motions for summary judgment, the court granted appellees' motion, entered judgment in their favor, and dismissed appellant's complaint. ^2a From this judgment, appellant appeals, raising the following issues:

1. Did appellees deprive appellant of her Fourth Amendment rights when they applied for an administrative search warrant without probable cause?;

2. Are the policies and customs of Montgomery County consistent with Fourth Amendment requirements?; and

3. Do appellees enjoy an immunity which shields their actions?

For the reasons that follow, we will hold that no probable cause existed for the search of appellant's premises, but that the individual appellees enjoyed a qualified immunity precluding an award of monetary damages. We will also hold that summary judgment was improperly granted in favor of appellee Montgomery County since a dispute of material fact existed as to whether it maintained a policy or custom of initiating search procedures in violation of the Fourth Amendment. ³

The facts surrounding this appeal may be summarized briefly. Appellant, the President and sole Director of Rescue, Inc., a non-profit, non-stock corporation formed exclusively for charitable and educational purposes, in her corporate capacity, picks up stray or unwanted dogs. The dogs are kept in her home and cared for while attempts are made to place them in private homes. Appellant also owns three dogs in her individual capacity. These dogs are lawfully licensed and are also kept in her home.

In December 1984, appellee Roberts received a complaint from "a confidential reliable informant" that "approximately 40 dogs were being kept on [appellant's] premises." Having learned from the records of the Department of Animal Control and Humane Treatment (the "Department") that only three dogs were licensed at the premises, Roberts posted a Notice of Complaint and Corrective Action on the premises. Later, she gave appellant notice pursuant to § 5-18(b) of the Montgomery County Code ⁴ of her request to enter and inspect appellant's premises. When that request was refused, Roberts made observations of appellant's property from a public street on two occasions. On those occasions, she saw dogs on the premises which did not fit the description of the dogs licensed at that address. Thereafter, Roberts filed in the Circuit Court for Montgomery County a Petition for Order Permitting Entry and supporting affidavit, for the purpose of conducting a physical inspection of appellant's property to determine whether unvaccinated dogs were on the premises in violation of § 5-45 of the Montgomery County Code. ⁵

In addition to the information set out above, the affidavit described the premises to be searched and described the confidential informant as a resident of the county and a personal friend of Roberts' for many years who has provided Roberts with accurate information in the past.

Roberts' immediate supervisor and appellee Ferguson were kept fully abreast of the investigation. When Roberts was unable to confirm directly through appellant that the dogs on the premises had been vaccinated, it was Ferguson, who, after consulting with the County Attorney's Office, made the decision to seek an administrative search warrant.

Before authorizing the search, the circuit court held an adversary hearing on appellee's petition for entry. It was learned during the hearing that Roberts was aware that appellant operated Rescue, Inc. out of her home. The hearing also revealed that one of the dogs Roberts observed on the premises had been vaccinated just two days before the hearing. With these exceptions, the information developed at the hearing was cumlative to that contained in the petition for entry and the accompanying affidavit. The court found "probable cause to believe that unvaccinated dogs may be present" on appellant's premises, and, therefore, issued an order authorizing the entry and search. ⁶ The search uncovered no violations of the animal control laws.

1.

In reviewing the propriety of the lower court's grant of summary judgment, we determine only whether, viewing the pleadings, depositions, answers to interrogatories, admissions, and affidavits, Md.Rule 2-501(e), disputed issues of material fact, or the reasonable inferences deducible therefrom, exist. Coffey v. Derby Steel Company, 291 Md. 241, 246, 434 A.2d 564 (1981); Berkey v. Delia, 287 Md. 302, 304, 413 A.2d 170 (1980); May Department Stores Company v. Harryman, 65 Md.App. 534, 538, 501 A.2d 468 (1985), aff'd, 307 Md. 692, 517 A.2d 71 (1987). We neither try the issues presented nor determine their credibility. Harryman, 65 Md.App. at 538, 501 A.2d 468. Only if but one inference may be deducible from the undisputed facts will we affirm the granting of a motion for summary judgment. Smith v. Warbasse, 71 Md.App. 625, 627, 526 A.2d 991 (1987).

The parties concede that there are no disputed issues of material fact presented by this issue. Although we agree that there are no disputed issue of material fact, we do not agree that summary judgment was properly entered in favor of appellees. On the contrary, we hold that summary judgment should properly have been entered in favor of appellant. Accordingly, we reverse.

It is now well-settled that "administrative searches generally require warrants." Michigan v. Clifford, 464 U.S. 287, 291, 104 S.Ct. 641, 645, 78 L.Ed.2d 477 (1984). See also Marshall v. Barlow's, Inc., 436 U.S. 307, 312-13, 98 S.Ct. 1816, 1820-21, 56 L.Ed.2d 305 (1978); Camara v. Municipal Court, 387 U.S. 523, 528-29, 534, 87 S.Ct. 1727, 1733, 18 L.Ed.2d 930 (1967); See v. City of Seattle, 387 U.S. 541, 543, 545, 87 S.Ct. 1737, 1739, 1740, 18 L.Ed.2d 943 (1967); Fred W. Allnutt, Inc. v. Commissioner, 289 Md. 35, 43, 421 A.2d 1360 (1980). Similarly, "privacy interests are especially strong in a private residence." Michigan v. Clifford, 464 U.S. at 296-97, 104 S.Ct. at 648. It follows, therefore, that an administrative search of a private residence must comport with Fourth Amendment principles. Camara, 387 U.S. at 534, 87 S.Ct. at 1733; Allnutt, 289 Md. at 42, 421 A.2d 1360; See, 387 U.S. at 546, 87 S.Ct. at 1741. This requires that, before private residential premises may be subjected to an administrative search, a search warrant demonstrating probable cause for the search must be obtained. See, 387 U.S. at 545-46, 87 S.Ct. at 1740-41.

Concerning the quantum of evidence necessary to establish probable cause, Barlow's, Inc., supra, makes clear that probable cause in an administrative context is not the same as that required in a criminal context. Id., 436 U.S. at 320, 98 S.Ct. at 1824. Furthermore, "[f]or purposes of an administrative search such as this, probable cause justifying the issuance of a warrant may be based not only on specific evidence of an existing violation but also on a showing that 'reasonable legislative or administrative standards for conducting an ... inspection are satisfied with respect to a particular [establishment].' " Id., quoting Camara, 387 U.S. at 538, 87 S.Ct. at 1735. See also Allnutt, Inc., 289 Md. at 51, 421 A.2d 1360. Thus, probable cause for the issuance of an administrative search warrant may be established in at least two ways. ^6a Appellees did not contend below that they relied upon an area wide inspection, based upon established standards, to justify the search of appellant's home and they do not do so on appeal. Rather, they concede that their petition was based upon specific information, acquired from a confidential informant, that violations existed on appellant's property. Consequently, we must review appellees' petition and the supporting affidavit in light of the information known to them to determine if probable cause for the search existed.

The portions of Officer Roberts' affidavit which are pertinent to the issue of probable cause are:

3. A confidential reliable informant has informed me that approximately 40 dogs were being kept on the premises. The informant has been a personal friend of mine for many years, resides in the County, and has provided me with accurate information in the past.

4. Information contained within records maintained by the Department of Animal Control indicates that there are only three licensed dogs at the premises.

5. On January 7, 1985 at approximately 1500 hours and again on January 8, 1985 at approximately 1200 hours, I observed a number of dogs on the premises which do not match the description of the dogs licensed at the premises.

The only other information received from the informant, as revealed in Roberts' deposition, was that the 40 odd dogs were being kept in cages in appellant's living room; the informant did not report that the dogs were being mistreated or abused, not to mention that they were...