Special Investigation No. 228, In re, 318

• Decision Date: 07 April 1983
• Docket Number: No. 318,318
• Citation: 458 A.2d 820,54 Md.App. 149
• Parties: In re a SPECIAL INVESTIGATION NO. 228.
• Court: Court of Special Appeals of Maryland

Page 149

54 Md.App. 149

458 A.2d 820

In re a SPECIAL INVESTIGATION NO. 228.

No. 318.

Court of Special Appeals of Maryland.

April 7, 1983.

Deborah K. Handel, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen. and Stefan D. Cassella, Asst. Atty. Gen., on brief, for appellant.

David R. Addis, Washington, D.C., with whom were Dickstein, Shapiro & Morin, Albert H. Turkus and Dow, Lohnes & Albertson, Washington, D.C., on brief, for appellees.

Argued before MOYLAN, LOWE and ADKINS, JJ.

MOYLAN, Judge.

a. A wealthy art connoisseur is charged with manslaughter. Dried blood of the victim's blood type and the victim's fingerprint are found on an invaluable Ming vase in the art collector's home. Prior to trial, the art collector objects to the police seizure of the Ming vase, not upon constitutional grounds but on the grounds that it is his property. He is unsuccessful. Following his conviction, the art collector moves for the restoration of his Ming vase, which is still being retained in the property room.

b. A pawnbroker is acquitted of having received stolen goods after it is determined that the police seizure of the goods was flagrantly unconstitutional. Notwithstanding the acquittal, the true owners request the police to restore the stolen chattels directly to them. The pawnbroker counterclaims that the finding of an unconstitutional seizure automatically entitles him to a restoration of the chattels that were unconstitutionally seized.

c. A wealthy cocaine dealer, following his acquittal, moves for the return of $100,000 worth of high-grade "coke" seized from his yacht. Does the acquittal make a difference? Will the outcome hinge on whether the cocaine was seized constitutionally or unconstitutionally?

d. A bookmaker is acquitted when the money from his wall safe is determined to have been unconstitutionally seized. Notwithstanding the exclusion of the evidence and the subsequent acquittal, the IRS seeks the forfeiture of the funds.

e. A 17-year-old hot-wires a $75,000 Rolls Royce for an evening of elitist "joyriding," is apprehended behind the wheel, is promptly indicted, and just as promptly "jumps bail." The police, hoping for his eventual recapture, feel compelled to hold onto the evidence. The owner, reduced to taking the bus, insists upon the repossession of his Rolls Royce pending possible recapture and trial.

The purpose in posing the hypothetical problems is to illustrate the frequently neglected point that personal property law is not coterminous with constitutional law--that the entitlement to have personal property (which may coincidentally be evidence) returned is not coterminous with the right to have excluded from one's criminal trial evidence (which may coincidentally be one's personal property). A property right in a chattel (which may become, is now, or once was evidence) did not arise from the first promulgation of the Exclusionary Rule. A property right in a chattel (which may become, is now, or once was evidence) would not expire if the Exclusionary Rule were to be abolished tomorrow.

The property right and the constitutional right have available separate avenues of vindication. The troubling problem is that those avenues are for a part of their respective courses deceivingly parallel, even share briefly a common roadbed, but then diverge dramatically. Our statutory law and our case law have sadly failed to keep the distinction clean.

This appeal arises from a blurring of that distinction. It concerns whether Md.Ann.Code Art. 27, § 551 (1982 Repl.Vol.) was intended by its framers to be a statutory scheme to settle, in part at least, possessory rights or was designed to settle constitutional questions, or is a formless muddle of both.

§ 551

In A Nutshell

Section 551, in pertinent part, provides:

"(a)

[The Issuance of the Warrant]

Whenever it be made to appear to any judge ... by written application signed and sworn to by the applicant, accompanied by an affidavit containing facts within the personal knowledge of the affiant ... that there is probable cause, the basis of which shall be set forth in said affidavit ... to believe that any misdemeanor or felony is being committed by any individual or in any building, apartment, premises, place or thing within the territorial jurisdiction of such judge, or that any property subject to seizure under the criminal laws of the State is situated or located on the person of any such individual or in or on any such building, apartment, premises, place or thing, then the judge may forthwith issue a search warrant directed to any duly constituted policeman ... authorizing him to search such suspected individual, building, apartment, premises, place or thing, and to seize any property found liable to seizure under the criminal laws of this State, provided that any such search warrant shall name or describe, with reasonable particularity, the individual, building, apartment, premises, place or thing to be searched, the grounds for such search and the name of the applicant on whose written application as aforesaid the warrant was issued,

[The Execution of the Warrant]

and provided further that any search or seizure under the authority of such search warrant, shall be made within 15 calendar days from the date of the issuance thereof and after the expiration of the 15-day period said warrant shall be null and void.

[The Sanction for Certain Non-Compliances]

If, at any time, on application to a judge ... it appears

that the property taken is not the same as that described in the warrant or that there is no probable cause for believing the existence of the grounds on which the warrant was issued,

or that the property was taken under a warrant issued more than 15 calendar days prior to the seizure,

said judge must cause it to be restored to the person from whom it was taken..."

[Restoration of Property Where the Criminal Case Is

Terminated Prior to Trial or By Acquittal]

"(b) If the criminal case in which property of a person was seized pursuant to a search warrant issued under subsection (a) of this section is disposed of because of (i) an entry of nolle prosequi, (ii) dismissal, or (iii) acquittal, or if the State does not appeal such a criminal case or if the time for appeal has expired, all property of the person, except contraband or any property prohibited by law from being recoverable, may be returned to the person to whom it belongs without the necessity of that person instituting an action for replevin or any other legal proceeding against the agency having custody of the property.

[Restoration of Property Wrongfully Withheld When It Is No

Longer Needed]

(c)(1) If, at any time, on application to a judge ... it is found that property rightfully taken under a search warrant is being wrongfully withheld after there is no further need for retention of the property, the judge must cause it to be restored to the person from whom it was taken."

The Present Case

Beginning in August, 1981, the Baltimore City Grand Jury began an investigation of large-scale fraud in the Medical Assistance Program run by the State of Maryland. The investigation was conducted by the Medicaid Fraud Control Unit of the Office of the Attorney General of Maryland. The particular investigation now in issue was of a here-undesignated nursing home (the Nursing Home) and a here-undesignated hospital (the Hospital) in a large suburban county somewhere in Maryland, ¹ and the owners, administrators, and employees of both.

During the period between August, 1981 and February, 1982, numerous witnesses were called before the Grand Jury to testify or to produce documents. As of February 4, 1982, the Attorney General developed probable cause to believe that certain documents previously subpoenaed by the Grand Jury, but not turned over to it, were being kept in a boiler room at the Hospital. Acting pursuant to a lawfully issued search warrant, agents of the Attorney General conducted a search of the boiler room on February 4 and seized numerous books and records which had previously been subpoenaed by the Grand Jury. There is no dispute as to the propriety of that search of February 4.

As productive as the search may have been, it was presumably not as productive as it might have been. When an undercover agent informed the Attorney General of the frantic and highly suspicious scurrying about that immediately preceded the search of February 4, the predicate was laid for a follow-up search on February 5. A courtesy call from the Attorney General to counsel for the suspect Hospital had alerted the Hospital that the February 4 search team was on the way. Within the hour or so preceding the arrival of the searching party, six or more employees of the Hospital were observed hastily removing boxes of records from the administrative office of the Hospital, loading them onto a pickup truck, and moving them to a barn some distance away. On February 5, armed with a new search warrant, the Attorney General searched the barn and seized thirty-five boxes of books and records, these being the boxes which had been removed in great frenzy from the administrative office of the Hospital just prior to the arrival of the original searching team on the day before.

The Holding in a Nutshell

Before beginning the painful parsing of the almost hopelessly tangled series of orders, amendments to orders, and injunctions involved in this case, we will state in advance "the bottom line." The package of orders required the State to return the property seized on February 5, 1982 to counsel for various suspects and forbade the State, even prior to the physical return, to examine and to inspect the property and to use the information thereby gained even in a derivative way. The State has appealed this denial of the right to use, directly or indirectly, the evidence seized on February 5. Because of multitudinous substantive and procedural errors all working to the detriment of the State, we...