Smith v. Danielczyk

Decision Date25 July 2007
Docket NumberNo. 133, Sept. Term, 2006.,133, Sept. Term, 2006.
Citation400 Md. 98,928 A.2d 795
PartiesRobert Leo Donald SMITH, et al. v. Scott DANIELCZYK, et al.
CourtCourt of Special Appeals of Maryland

Clarke F. Ahlers, Columbia, for appellants.

Jordan V. Watts, Jr., Deputy Legal Counsel (Karen Stakem Hornig, Chief Counsel, Baltimore Police Dept. of Baltimore, George Nilson, City Solicitor, Baltimore City Law Dept. of Baltimore, on brief), for appellees.

Argued before BELL, C.J., RAKER, CATHELL, HARRELL, BATTAGLIA, GREENE, and ALAN M. WILNER, (Retired, Specially Assigned), JJ.

WILNER, J.

The principal issues in this case are what, if any, privilege or immunity police officers have (1) for making allegedly false defamatory statements in an application for a search warrant, and (2) for voluntarily disclosing those statements to the news media.1 We shall hold that, to the extent they may apply under the particular factual circumstances, police officers have the common law qualified immunity enjoyed generally by public officials and the statutory protection afforded by the State Tort Claims Act or the Local Government Tort Claims Act, but that they do not enjoy any absolute privilege or immunity.

BACKGROUND

On May 5, 2006, appellants, Robert Smith and Vicki Mengel, filed in the Circuit Court for Baltimore City a one-count complaint for defamation against Scott Danielczyk and John Jendrek, appellees. That complaint was dismissed on motion, with prejudice. Ordinarily, in reviewing the dismissal of a complaint on motion, we look only to the allegations in the complaint and any exhibits incorporated in it and "assume the truth of all well-pled facts in the complaint as well as the reasonable inferences that may be drawn from those relevant and material facts." Ricketts v. Ricketts, 393 Md. 479, 491-92, 903 A.2d 857, 864 (2006), quoting from Porterfield v. Mascari II, Inc., 374 Md. 402, 414, 823 A.2d 590, 597 (2003); see also Debbas v Nelson, 389 Md. 364, 372, 885 A.2d 802, 807 (2005).

Maryland Rule 2-322(c) provides, however, that if, on a motion to dismiss for failure of the complaint to state a claim upon which relief can be granted, "matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 2-501 [which governs motions for summary judgment]." Rule 2-322(c) adds that, in that event, the parties "shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 2-501."

Three defenses were raised in the motion to dismiss, but they all fit, at least in a general way, within the ambit of an assertion that the complaint failed to state a claim upon which relief could be granted.2 Although no extraneous material was attached to either the complaint or the motion to dismiss in this case, appellees made certain factual averments in the memorandum they filed in support of their motion and attached as exhibits to that memorandum copies of applications for certain search warrants, the warrants themselves, and an undated and unsigned document that purports to be a return identifying material seized pursuant to one of the warrants. In their response to the motion, appellants alleged additional facts that were not mentioned in the complaint.

Because the court dismissed the complaint without explanation, it is not clear whether any of that material was, in fact, considered. The record does not indicate that the extraneous documents or averments were "excluded" by the court, however, so we must assume that they were considered. Ordinarily, therefore, we would be obliged to treat the court's ruling as the grant of summary judgment for appellees and review it in that light. Under Maryland Rule 2-501(f), summary judgment may properly be entered only if "the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law." In making that determination, all facts set before the court and all inferences that may fairly be drawn from those facts must be considered in the light most favorable to the non-moving party, in this case the appellants. See United Servs. Auto Ass'n v. Riley, 393 Md. 55, 66-67, 899 A.2d 819, 825-26 (2006); Haas v. Lockheed Martin, Corp., 396 Md. 469, 478-79, 914 A.2d 735, 740-41(2007).

Regrettably, some of the relevant facts are not presented with the greatest clarity or even in the proper manner.3 Because there seems to be no dispute regarding the extraneous material appended to appellees' motion to dismiss and none of the relevant factual averments by appellees in their memorandum or made by appellants in response to the motion were controverted, we shall regard the exhibits and the additional averments as simply supplementing the allegations in the complaint and consider the relevant facts pled in the complaint, as so supplemented. See Pension Ben. Guar. Corp. v. White Consol. Ind., 998 F.2d 1192, 1196 (3rd Cir.1993).

Appellants Robert Smith and Vicki Mengel were Baltimore City police officers assigned to a seven-member "Flex Squad" in the Southwest District. Smith, a sergeant, was the supervisor of the squad. Mengel was an investigator. The Flex Squad came under scrutiny when a woman claimed that she had been raped by a police officer in the Flex Squad office.4 On December 29, 2005, in furtherance of an investigation into the rape charge and pursuant to applications made by appellees, who were police officers assigned to that investigation, warrants were issued to search the office of the Flex Squad and certain lockers located in the office. In the execution of those warrants, which occurred at about 2:00 that same afternoon, controlled dangerous substances were discovered in a duffel bag under one officer's desk, in a second officer's desk drawer, and in a third officer's jacket pocket. On the wall of the office, a vial with white residue was discovered. No contraband was discovered from Smith or Mengel, who were not present at the office that day, or, apparently, from their desks, lockers, or other property.

Promptly after the search was conducted, appellees prepared an application for another warrant to search the Flex Squad office and various lockers and containers located there. It is the affidavit accompanying the application for that warrant that forms the basis of this lawsuit. In their affidavit, appellees recited the execution of the initial warrants, described the contraband that was discovered, and stated that the office was used by the entire Flex Squad, including Officers Smith and Mengel. They expressed the belief that probable cause existed that the narcotics laws of the State "have been violated by each of the above named officers, and that it is reasonable that additional contraband may be concealed within their individual lockers." (Emphasis added). The affiants noted that, "[a]s of now," only the lockers belonging to Officers Hatley, Jones, Nagovich, and Ali "have been identified." They added, however, that "[a]ffiant Danielczyk also has prior knowledge that Officers Jones and Mengel have been implicated in the theft of cellular phones belonging to arrestees" and that "allegations against Officers Jones and Mengel have been made as to the planting of controlled dangerous substances on citizens in an effort to knowingly make false arrests." The affidavit gives no details with respect to the allegations regarding the theft of cell phones or the planting of CDS on citizens, or as to the basis of Danielczyk's "prior knowledge."

Upon those allegations, appellees stated that there was probable cause to believe that all seven officers, including Smith and Mengel, were violating the controlled dangerous substance laws and were using the Southwest District Flex Office and the lockers of Officers Hatley, Jones, Nagovick, and Ali "to facilitate their illegal activity." Curiously, although the affidavit clearly alleged, and, indeed, was largely based on, information discovered as a result of the search conducted earlier that afternoon, on December 29, 2005, the judge to whom it was presented stated that it was "[s]worn to before me and subscribed in my presence this 27th day of September, 2005." (Emphasis added). There is no explanation in this record of why the affidavit is dated more than two months before most of the information on which it is based was received.

Appellees attached as an exhibit to their motion to dismiss an unsigned, undated, unwitnessed, unattested Return, indicating that a warrant was issued and was executed at or about 5:00 p.m. on December 29, 2005, and listing the items allegedly seized from "the office described in the warrant." Among those items were ziploc bags containing pills, white powder, and green leafy substance, cellular phones, electric scales, counterfeit CDs and DVDs, and pornographic magazines. The purported return does not indicate whether any of that material was discovered in the desk, locker, or other property of Smith or Mengel.

In their complaint, appellants alleged, in relevant part, that:

(1) prior to December 29, 2005, they had not observed any member of the Flex Squad unlawfully possessing or distributing any controlled dangerous substances and were not, themselves, involved in such activity,

(2) appellees "acted in reckless disregard of the truth and falsely accused the Plaintiffs of committing crimes while employed as Baltimore City Police Officers,"

(3) appellees falsely stated, on the "scant evidence set forth in the affidavit," that they believed there was sufficient probable cause to believe that Smith was violating the CDS laws and was using the Flex Office to facilitate illegal activity,

(4) they falsely stated that Mengel had been implicated in the theft of cell phones and had planted CDS on citizens in order to knowingly make false arrests,

(5) they knew or should have known that Smith and Mengel were...

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