Davis v. DiPino

• Decision Date: 01 September 1996
• Docket Number: No. 1855,1855
• Citation: 121 Md.App. 28,708 A.2d 357
• Parties: Wayne Nelson DAVIS v. Bernadette DiPINO, et al. ,
• Court: Court of Special Appeals of Maryland

Page 28

121 Md.App. 28

708 A.2d 357

Wayne Nelson DAVIS v. Bernadette DiPINO, et al.

No. 1855, Sept. Term, 1996.

Court of Special Appeals of Maryland.

April 16, 1998.

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Peter Ayers Wimbrow, III, Ocean City, for appellant.

Guy R. Ayres, III, (Ayres, Jenkins, Gordy & Almand, P.A., on the brief), Ocean City, for appellees, DiPino and Moyer and City Council of Ocean City.

Julia M. Freit, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on the brief), Baltimore, for appellee Turner.

Argued before MURPHY, C.J., WENNER, CATHELL, ^* DAVIS, HARRELL, HOLLANDER, SALMON, EYLER, THIEME, SONNER, KENNEY and BYRNES, JJ., and ROBERT F. FISHER, Judge (retired, Specially Assigned).

HOLLANDER, Judge.

This case pits a citizen's constitutional rights to free speech, due process, and freedom from unreasonable seizures against an undercover police officer's interests in concealing her occupation and identity. Wayne Nelson Davis, appellant, brings his second appeal to this Court arising out of litigation that he initiated in 1991 in the Circuit Court for Worcester County against Ocean City Police Officer Bernadette DiPino, the Mayor and City Council of Ocean City ("Ocean City"), and District Court Commissioner Donald E. Turner, appellees. ¹

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The suit challenged appellant's arrest and incarceration in July 1991 on charges that, in May 1991, he hindered two undercover police officers in the performance of their duties. The hindering charges resulted from appellant's public disclosure that DiPino and Alice Brumbley were undercover narcotics officers.

In his amended complaint, appellant lodged claims against appellees pursuant to the Civil Rights Act of 1871, 42 U.S.C. § 1983, claiming violations of his rights under the First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States Constitution. Additionally, Davis sued DiPino and Ocean City for violations of his rights under Articles 21, 24, 25, 26, and 40 of the Maryland Declaration of Rights. Appellant also presented intentional tort claims against DiPino and Ocean City for false arrest, false imprisonment, malicious prosecution, and abuse of process. Further, Davis sought to lodge a class action and an individual claim against Turner, claiming, inter alia, that he repeatedly violated Maryland Rule 4-212(d)(1) by issuing arrest warrants when summonses were appropriate. Appellant sought compensatory and punitive damages from DiPino and Ocean City and injunctive and declaratory relief against Turner.

DiPino and Ocean City jointly answered and asserted affirmative defenses of sovereign immunity, qualified immunity, good faith immunity, and statutory immunity. Turner moved to dismiss the amended complaint for failure to state a claim, and the court granted his motion. Eventually, in December 1995, the case against DiPino and Ocean City was tried to the court. At the close of appellant's case, the court denied DiPino's motion for judgment, granted judgment in favor of Ocean City on the federal § 1983 claims and the State intentional tort claims, and reserved as to the State constitutional tort claims against Ocean City. At the close of all the evidence, the circuit court heard argument only from appellant and, thereafter, it orally granted judgment in favor of "the Defense."

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Appellant timely noted the instant appeal and presents the following issues for our en banc review, which we have rephrased slightly:

I. Was there probable cause to believe that appellant committed the crime of hindering?

II. Even if there was probable cause to believe that appellant committed the offense of hindering, did his arrest violate his constitutional right to free speech?

III. Did the trial court err when it granted Ocean City's Motion for Judgment at the conclusion of appellant's case on the intentional tort claims?

IV. Did the trial court err in admitting the testimony of Trooper Alice J. Brumbley when appellees did not supply her address or telephone number in discovery when it was available to them?

V. Did the trial court err in admitting testimony regarding a prior investigation of appellant?

VI. Did the trial court err in granting Commissioner Turner's motion to dismiss?

We hold that appellant was unlawfully arrested for the crime of hindering. In this regard, the circuit court erred in concluding that Officer DiPino had probable cause to believe that Davis had committed the offense of hindering. In our view, appellant's arrest in July 1991 also violated his State and federal constitutional rights to free speech. Accordingly, we shall vacate the judgments in favor of DiPino on the federal and State constitutional claims and remand the matter for further proceedings, including a consideration of appellees' immunity defenses.

As Davis was arrested without probable cause, we shall also vacate the judgments in favor of DiPino and Ocean City with regard to the malicious prosecution claim, and remand for further proceedings. We shall, however, affirm the judgments in favor of Ocean City with respect to the constitutional claims and the remaining intentional tort claims. Because the class action claim against Turner has not been preserved for our review, and appellant has failed in his individual capacity to

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state a claim against Turner, we shall also affirm the judgments in favor of Turner. In light of our holdings, we need not consider appellant's discovery contention. Moreover, we decline to consider whether the court erred in admitting testimony about DiPino's original investigation of Davis.

Factual Summary

In May 1991, DiPino and Brumbley were employed by the Ocean City Police Department as undercover narcotics detectives. ² Approximately one year earlier, when DiPino and Brumbley were attempting to make contact with possible narcotics suspects, they met Davis, a long-time Ocean City resident who was then in his mid-forties, as he was riding his bicycle along the boardwalk. According to the officers, appellant expressed an interest in purchasing marijuana. Although appellant denied this allegation, the parties nonetheless agree that, as a result of the encounter on the boardwalk, Davis became the target of a "reversal," whereby an undercover officer tries to sell a controlled dangerous substance to someone suspected of involvement with drugs.

Soon thereafter, Davis met DiPino, Brumbley, and Gary Holtzman at the Inlet Lodge, where Davis had been working for many years as a bartender, and at the Embers Restaurant. Davis recognized Holtzman, an Ocean City police sergeant, because Davis's child and Holtzman's child were schoolmates. He then informed DiPino and Brumbley that Holtzman was actually a police officer. DiPino testified: "I went around to talk to Mr. Davis, and Mr. Davis warned me about Sergeant Holtzman. He said he believed that he was ... a police officer and to be careful."

As a result of the disclosure concerning Holtzman, DiPino assumed that Davis knew that she, too, was a police officer, and that the sanctity of her cover had been jeopardized. Consequently, DiPino decided to abandon her investigation of Davis because it was "pretty moot." She explained: "At that

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point, I really felt we didn't have anywhere else to go in this case, because trust, and not believing that you're a police officer, is a key to a narcotics investigation."

By happenstance, about a year later, during the late evening hours of Sunday, May 11, 1991, or the early morning hours of Monday, May 12, 1991, DiPino and Brumbley encountered appellant, who was with his friend, Frederick King, in the vicinity of Wicomico Street and the boardwalk. According to the police officers, Wicomico Street is heavily populated with drug users, drug sellers, and "biker gangs." The officers had just left The Cork Bar where, in their undercover capacities, they had met with two "targets."

Appellant testified that, on the night in question, he met King, a purveyor of such items as cotton candy and funnel cakes, when King was closing the family store, known as "Kingie's." At around 1:00 a.m., appellant and King were chatting at appellant's car, on the north side of Wicomico Street, when appellant saw DiPino and Brumbley emerge from a sandwich shop on the south side of Wicomico Street, which was located between The Cork Bar and The Bearded Clam, about 65 feet away. After Davis made eye contact with DiPino and Brumbley, Davis testified that he said to King, in a normal conversational tone:

"Look, those were the two girls that were going to come in last year and give me some pot and have Mr. Holtzman bust me", right? And Mr. King said, "What are they? Narcs?" And I says, "I don't know what they are." I says, "They could be under cover or anything." ³

Appellant testified further that the two women then walked across the street, and the following colloquy ensued:

Mrs. DiPino said to me, she said, "What are you talking about? Us?" And I said, "No, I'm not talking about you. I was talking about business." She said, "Well, that's what

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I'm interested in is your business." And I said to her, I said, "You know what my business is?" She said, "What is that?" I said, "None of your business." That was the only conversation taken [sic] between me and Mrs. DiPino.

According to appellant, there was little activity on the street at that time. After the conversation, the officers entered a white Mustang and drove away. Thereafter, Davis went to The Bearded Clam, which had about 14 patrons in it at the time.

King corroborated that he met with appellant after he closed his store. He explained that he sells the kind of food that people eat when it is late, so he usually is among the last persons to close a store on the boardwalk. As it was early in May, he stated that "[t]here wasn't hardly anybody around." He added: "I think we were the only ones on Wicomico Street."

While King and Davis were talking, King said that "Mr. Davis nodded over and he said, 'There's two girls in...