Fop v. Manger

Decision Date25 May 2007
Docket NumberNo. 1280, September Term, 2006.,1280, September Term, 2006.
Citation175 Md. App. 476,929 A.2d 958
PartiesFRATERNAL ORDER OF POLICE MONTGOMERY COUNTY LODGE 35, INC. et al. v. J. Thomas MANGER et al.
CourtCourt of Special Appeals of Maryland

Martha L. Handman of Gaithersburg, MD and James F. Shalleck of Montgomery Village, for appellant.

Karen L. Federman Henry (Edward G. Lattner, Marc P. Hansen, Acting County Attorney on the brief), Rockville, for appellee.

DAVIS, KRAUSER and BARBERA, JJ.

DAVIS, J.

Appellant John Doe,1 a sworn officer in the Montgomery County Police Department (MCPD), is facing administrative charges which are to be heard by an alternative administrative hearing board (Board) pursuant to 3-107 of the Law Enforcement Officers' Bill of Rights (LEOBR).2 Md.Code, Public Safety § 3-101 through § 3-113.3 Before the Board convened, Doe filed pre-hearing motions to suppress evidence and to sever the charges. On December 23, 2005, the Board declined to rule on the motions, stating that it lacked authority to interpret constitutional and state statutory provisions.

On December 28, 2005, Doe and appellant, Fraternal Order of Police, Montgomery County Lodge 35, Inc. (FOP), brought suit against appellees J. Thomas Manger and the MCPD in the Circuit Court for Montgomery County pursuant to LEOBR § 3-105, seeking to require the Board to consider and rule on Doe's pre-hearing motions to sever the charges and suppress evidence. In the alternative, appellants requested that the court order that the charges be severed and the evidence suppressed. The circuit court issued a show cause order on December 28, 2005.

On January 10, 2006, appellants filed an amended complaint and, on February 6, 2006, they filed a motion for summary judgment. After hearing argument on April 17, 2006, the motions judge4 denied the Motion for Summary Judgment, but did not enter judgment.

When the parties appeared for trial on the Petition for Show Cause Order on May 25, 2006, the trial judge found that the matter was "moot" because of findings that the motions judge had made at the hearing on the Motion for Summary Judgment. The trial judge directed the parties to submit an order to the motions judge, which they did. On July 6, 2006, the motions judge issued an order, which was entered on July 13, 2006, denying appellant's motion for summary judgment and ordering judgment for appellees.

Appellants timely appealed to this Court, presenting the following issues for our review:

I. Whether the trial judge erred by denying appellants a trial when no judgment had been entered after the motions judge denied their motion for summary judgment.

II. Whether the motions judge and the trial judge denied appellants the right to present evidence by failing to review the evidence they had submitted in support of their motion for summary judgment and by subsequently denying them the opportunity to present evidence at a trial.

III. Whether the motions judge erred by ordering summary judgment for appellees, when the undisputed material facts gave rise to conflicting inferences.

IV. Whether the MCPD violated the Fourth Amendment and Article 26 of the Maryland Declaration of Rights when its officers, in the absence of a warrant or an exception to the warrant requirement, seized Doe's files from his home.

V. Whether the motions judge erred in deciding that Doe voluntarily produced his files, when he gave the files to MCPD officers pursuant to an express order by his commander to produce them from his home immediately and under threat of disciplinary action.

VI. Whether evidence that the MCPD illegally seized from Doe's home and evidence derived from the illegally seized evidence is admissible against him at an administrative hearing conducted pursuant to LEOBR § 3-107.

VII. Whether the motions judge erred in failing to order severance of administrative charges against Doe, when those charges were based on seven separate, unrelated incidents which had occurred over a six month period, and each incident involved the arrest of a different individual.

VIII. Whether the MCPD violated Doe's LEOBR rights when its officers interrogated him about his files.

For the reasons that follow, we conclude that a determination of whether the LEOBR was triggered by an investigation was never an issue presented to the trial court, that the recovery of police files from appellant's residence did not violate Fourth Amendment proscriptions against unreasonable seizures and that the court did not abuse its discretion in refusing the request of appellant's counsel to present argument on his motion for severance ex parte or to discuss the basis of his motion with the court in private. Accordingly, we shall affirm judgment of the circuit court.

FACTUAL BACKGROUND

On or about July 18, 2004, the MCPD's Internal Affairs Division (IAD) received a complaint from a woman whom Doe had arrested in June 2004 for alcohol-related driving offenses and IAD opened a formal investigation. The crux of the complaint was that Doe had taken photographs of the defendant's upper and lower body when he processed her following her arrest. On August 19, 2004, IAD investigators Sergeant Teena Lee and MPO Anthony M. Chuckerel went to the Bethesda District Station to obtain Doe's case files. Their purpose was to obtain photographs of women that Doe had arrested. After they searched a file cabinet at the station without finding any of Doe's case files, they assumed that the files were either in Doe's cruiser or at his home and notified Captain Darryl McSwain, the TAD director. At Captain McSwain's direction, Commander Betsy Davis, the commander of the Bethesda District, then issued a written "Administrative Order" to Doe, which stated:

This is a direct order to produce all case files pertaining to all arrests that you have made in the last twenty[-]four months (August 2002-August 19, 2004) in their entirety to include police reports, photographs, tickets/citations, notes and any file evidence.

You are hereby ordered to produce these items immediately, without any delay to myself. Failure to comply with this order may result in disciplinary action against you as a result of failing to obey a direct order which is in violation of Department Rules, Function Code 300, Rule 3A.

At approximately 6:30 p.m., Doe's immediate supervisor, Sergeant Cathleen Lapsley, contacted him on the road and directed him to report to the Bethesda District station. When he arrived, Sergeant Lapsley, Commander Davis, Sergeant Lee and Officer Chuckerel were waiting for him in the parking lot. They escorted Doe to a conference room where Commander Davis told Doe that IAD was investigating him. She then delivered the written "Administrative Order" to Doe, immediately thereafter reading it out loud and telling Doe that, if he failed to produce the files immediately, he would be charged with failing to obey a lawful direct order. Commander Davis asked Doe where his case files were and was told that they were at his home. Commander Davis, Sergeant Lapsley and the two IAD detectives then accompanied Doe to the evidence room where he obtained some boxes, after which Commander Davis advised Doe that the case files would have to be retrieved immediately from his house.

Commander Davis directed Doe to drive to his house in his cruiser accompanied by Sergeant Lapsley. Commander Davis followed them in her police vehicle and the two IAD detectives followed. Inside his condominium, Doe retrieved the files from a cabinet and, with Sergeant Lapsley's assistance, boxed them up, carried them outside and counted them. Sergeant Lee recorded the number of boxes retrieved— three boxes which contained a total of 183 case files. After the boxes were placed in Sergeant Lee's car and a receipt for them was given to Doe by Commander Davis, the IAD detectives left with the files and Sergeant Lapsley told Doe to go back in service.

After retrieving the case files, IAD investigators searched the files for evidence of wrongdoing. They examined the file contents and used information in the files to identify and contact women Doe had arrested. This investigation ultimately resulted in a five-count administrative charge against Doe for which the MCPD is seeking his dismissal.

On July 14, 2005, after the investigation concluded, Doe was charged with violating the five administrative rules. These charges emanated from seven arrests that occurred between January 8, 2004 and June 8, 2004 and were based on evidence from the files, as well as on information derived from that evidence.

Each of the seven incidents which gave rise to the administrative charges against Doe occurred on a different date between January 8, 2004 and June 8, 2004 and involved the arrest of a different individual at a different location. According to IAD Officer Chuckerel, none of these defendants was a witness to any of the incidents that gave rise to the administrative charges related to the other defendants. "They were all separate."5

Allegation 1, which arose out of Doe's arrest of subject No.7 on June 8, 2004, accuses Doe of violating department directives in connection with the storage of false identifications cards he had seized. That is the only allegation arising out of this arrest.

Allegation 2 accuses Doe of violating department directives by failing to search subject No. 5, subject No. 2, subject No. 4, and subject No. 1 before transporting them following their arrests on March 29, 2004, February 12, 2004, March 20, 2004 and January 8, 2004, respectively.

Allegation 3 accuses Doe of violating department directives by escorting subject No. 2, subject No. 3, and subject No. 6 to the restroom on February 12, 2004, March 6, 2004 and April 9, 2004, respectively.

Allegation 4 accuses Doe of violating the department rule on courtesy by making a rude comment to subject No. 5 on March 29, 2004.

Allegation 5 accuses Doe of a variety of inappropriate...

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