Pinkley v. City of Frederick, s. 96-1447

Citation191 F.3d 394
Decision Date03 June 1997
Docket Number96-1448,Nos. 96-1447,s. 96-1447
Parties(4th Cir. 1999) PINKLEY, INCORPORATED, t/a Bradley Books, Plaintiff-Appellee, v. CITY OF FREDERICK, MARYLAND, a Body Politic, Defendant-Appellant, and ROBERT A. SERVACEK, Individually and in his official capacity as Detective in Frederick City Police Department and City of Frederick, Maryland; RICHARD J. ASHTON, Major, Individually and in his official capacity as Chief, Frederick City Police and Agent, Servant, Employee and Policymaker of City of Frederick, Maryland; THE MAYOR AND BOARD OF ALDERMAN OF FREDERICK, MARYLAND, CONSTITUTING AND ACTING AS THE CITY OF FREDERICK MARYLAND, a Body Politic; DAVID S. GEARINGER, Officer, Individually and in his official capacity as agent of Frederick City, Maryland; JOHN LAMMERS, Officer, Individually and in his official capacity as agent of Frederick City, Maryland; SHAWN MARTYAK, officer, Individually and in her official capacity as agent of Frederick City, Maryland, Defendants. PINKLEY, INCORPORATED, t/a Bradley Books, Plaintiff-Appellant, v. CITY OF FREDERICK, MARYLAND, a Body Politic; ROBERT A. SERVACEK, Individually and in his official capacity as Detective in Frederick City Police Department and City of Frederick, Maryland; RICHARD J. ASHTON, Major, Individually and in his official capacity as Chief, rederick City Policy and Agent, Servant, Employee, and Policy maker of City of Frederick, Maryland; DAVID S. GEARINGER, Officer, Individually and in his official capacity as agent of Frederick City, Maryland; JOHN LAMMERS, Officer, Individually and in his official capacity as agent of Frederick City, Maryland, Defendants-Appellees, and THE MAYOR AND BOARD OF ALDERMAN OF FREDERICK, MARYLAND, CONSTITUTING AND ACTING AS THE CITY OF FREDERICK MARYLAND, a Body Politic; SHAWN MARTYAK, Officer, Individually and in her official capacity as agent of Frederick City, Maryland, Defendants. Argued:
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

COUNSEL ARGUED: Howard J. Schulman, SCHULMAN & KAUFMAN, L.L.C., Baltimore, Maryland, for Appellant. William Edward Seek-ford, Towson, Maryland, for Appellee.

Before WIDENER and WILLIAMS, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

Affirmed in part and vacated and remanded in part by published opinion. Judge Widener wrote the opinion, in which Judge Williams and Senior Judge Phillips joined.

OPINION

WIDENER, Circuit Judge:

On February 7, 1990 police officers of the Frederick, Maryland Police Department executed a search warrant at Pinkley, Inc.'s store known as Bradley Books, an adult bookstore. They confiscated allegedly obscene press and speech materials and relevant audio-visual devices and temporarily closed down the establishment.

Pursuant to 42 U.S.C. § 1983 Pinkley brought a three-count complaint in the United States District Court for the District of Maryland alleging that the seizure had deprived Pinkley of its constitutional rights under the First, Fourth, and Fourteenth Amendments, and had caused a "loss of property and profit" through"wrongful unconstitutional conduct". The district court found that Pinkley's constitutional rights were not violated by the seizure, but entered judgment against the City for the stipulated value of the property, $20,775.41. The parties appeal that decision.1 We vacate the judgment for conversion against the city and affirm the district court's denial of Pinkley's constitutional claims.

I. Background

On September 19, 1989 Terri Heger, a resident of Frederick, Maryland, filed a complaint with the City of Frederick Police Department alleging Bradley Books was selling obscene materials. The State's Attorney for Frederick authorized an investigation under the auspices of Corporal Servacek, a detective in the Department's Criminal Investigation Division. Sometime around December 26, 1989 Detective David S. Gearinger began undercover operations at the bookstore.

Based on that investigation, by February 1, 1990 Corporal Servacek had drafted an application and affidavit for a search warrant of Bradley Books, which averred that there was probable cause to believe that Pinkley was displaying and distributing obscene materials, primarily magazines and videos, in violation of the Maryland Criminal Code. The application, fifteen pages in length, described the investigation and the adult nature of the materials and activities at Bradley Books. Both Police Chief Ashton and State's Attorney Dorsey reviewed the application, and on February 5, 1990 Corporal Servacek presented the application to a judge of the District Court of Maryland for Frederick County. The judge reviewed the warrant application and issued a search warrant.

Corporal Servacek executed the warrant on February 7, 1990 with a search and seizure team of the Frederick City Police Department, which included defendant Officer Lammers. It was Corporal Servacek who determined which materials were to be seized by assessing whether each item fell within the definition of obscene as set forth in the warrant application. The other officers assisted in the removal of the materials, but did not participate in the selection of items. In conjunction with the seizure, Corporal Servacek prepared an inventory sheet and a property record form for the police department, itemizing the property seized. The store was closed by the officers, for they arrested the sole employee present at the time, bookstore manager Paul G. Sobus.

That same day Sobus was charged with violating 27 Md. Ann. Code § 416D (knowingly displaying for advertising purposes pictures, photographs, drawings, etc. depicting sadomasochistic abuse, sexual conduct and sexual excitement), 27 Md. Ann. Code § 418 (knowingly exhibiting, distributing and offering to distribute obscene matter), and 27 Md. Ann. Code § 421 (promoting the sale and distribution of obscene material). To these charges was added, on February 21, 1990, the charge of maintaining a bawdy house in violation of 27 Md. Ann. Code § 15(a).

On February 9, 1990 Bradley Books through its counsel sent a letter to Police Chief Ashton demanding the return of the seized materials and equipment. The letter requested an adversary hearing and advised plaintiff would "seek redress" if the materials were not returned by February 12, 1990. Chief Ashton relayed the letter to the State's Attorney's Office. Mayor Paul Gordon received an identical letter, which he forwarded to Chief Ashton. Plaintiff's counsel did not seek any formal hearing in a court, and no such hearing was ever scheduled or held.

On June 18, 1990 Sobus pleaded guilty both to violating § 418 -knowingly exhibiting, distributing and offering to distribute obscene matter -and to maintaining a bawdy house. During that plea Sobus and his counsel agreed with the State's proffer that the following would have been proven by the State:

Materials that were taken on that day included magazines and books and video tapes which portrayed sexual conduct in what would be seen as a patently offensive manner to the average person buying (sic) contemporary community standards. In addition Your Honor it would be found that in viewing these materials that they appeal to the prurient interest in sex and that they do not in any way serve a serious literary, artistic, political, or scientific purpose.

Although no obscenity charges were filed against Pinkley or Bradley Books, as the district court noted "[d]uring his plea, Mr. Sobus acknowledged that Bradley Books was a bawdy house where men engaged in sodomy and unnatural sexual acts in violation of State criminal laws." That appeared to be the end of the matter as far as the City was concerned. No other charges were filed against Pinkley connected with the bookstore, and within a few days it had reopened. The magazines, videos, VCRs and other materials were retained in the police department's evidence room.

At all relevant times the Frederick Police Department's practice regarding evidence was to provide notice to property owners of seized property after the conclusion of a case or investigation. The notice served to alert the owners that the police department had possession of the property, and that if the property was not claimed within six months of receipt of the notice, the department would consider the property to be unclaimed and subject to disposal. Additionally, subject to the approval of the police chief, the department allowed its officers to acquire unclaimed property.

In late 1990 Sergeant Steven Tuel was assigned the duty of Identification Section assistant, pursuant to which he was to assist Lieutenant Alice Moore in cataloging and purging the various articles of evidence and property which had accumulated over time in the department's custody. In the process of cataloging he encountered the evidence seized from Bradley Books, which included magazines, books, videotapes, video players, televisions, and like equipment. Sgt. Tuel consulted with Cpl. Servacek regarding the status of the case. In turn, Cpl. Servacek asked the State's Attorney Shelly Barrett, who had assisted in the prosecution of Sobus, whether the materials could be disposed. Upon receiving no response, Sgt. Tuel advised Lt. Moore that he had not received an answer. Subsequently, Lt. Moore prompted Chief Ashton to make a similar inquiry to State's Attorney Dorsey, which met with a like result. A month later the matter again went up the chain of command in the police department. Finally, after about a year, Sgt. Tuel visited the Office of the State's Attorney and spoke with Assistant State's Attorney Don Grossnickle regarding the disposal of the Bradley Books property. Shortly thereafter, State's Attorney Dorsey called Sgt. Tuel and advised him that he could dispose of the evidence.

On October 14, 1991 Corporal Servacek sent a memorandum to Chief Ashton requesting permission to take possession for his personal use some of the Bradley Books property that had not been...

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