Thompson v. Anderson

• Decision Date: 27 December 1977
• Docket Number: Civ. No. K-76-697.
• Citation: 447 F. Supp. 584
• Parties: Barbara THOMPSON v. Sergeant Kenneth ANDERSON.
• Court: U.S. District Court — District of Maryland

447 F. Supp. 584

Barbara THOMPSON v. Sergeant Kenneth ANDERSON.

Civ. No. K-76-697.

United States District Court, D. Maryland.

December 27, 1977.

S. Michael Floam, Baltimore, Md., for plaintiff.

Robert C. Verderaime, Baltimore, Md., for defendant.

FRANK A. KAUFMAN, District Judge.

Plaintiff, seeking damages against defendant¹ for violating her rights by unconstitutionally ordering a search of her house and by unconstitutionally arresting her, proceeds herein under 42 U.S.C. § 1983. Plaintiff also asserts a similar claim (for false imprisonment) under Maryland law and pursuant to pendent jurisdiction.²

FACTS

After a non-jury trial on liability issues only,³ this Court makes the following findings of fact:

On January 31, 1976, defendant, a Baltimore City policeman with the rank of Sergeant, was acting as shift commander for the day watch of the Northwest District of the Baltimore City Police Department. In response to a report from Officer Nicholson, also of the Northwest District, defendant drove to the scene of an investigation of a robbery which had just occurred. On arrival he conferred with Nicholson and ascertained that Nicholson had been chasing two boys who had been pointed out to him by the robbery victim, and that two witnesses (of the chase only) had identified one of the two boys Nicholson was chasing as Keith Thompson. The two witnesses were young, but their identifications were positive. They stated that they had known Keith for a year and had played with him in the neighborhood. Furthermore, they were able to direct Nicholson to Keith's home.

Anderson was already acquainted with Keith Thompson, and knew where he lived, that he was about 16 years old, and that the crime and the chase were in the vicinity of the Thompson home. After conferring with Nicholson, Anderson, using police radio, informed a number of officers under his command that Keith Thompson was a robbery suspect and ordered them to "try up" the Thompson house. The term "try up" (which is sometimes called "try out" and/or "turn-up") means to search a dwelling (or other premises) in order to ascertain if a specified wanted person is on the premises.⁴

Neither Anderson nor any other officer sought a warrant to search the Thompson house, or to arrest Keith. At trial Anderson stated that there were several reasons why he did not seek any warrant:

First, the brief period of time between the offense and the time of the investigation gave rise, in his opinion, to a situation of "fresh pursuit." The Baltimore City Police Department considers a "fresh pursuit" as the pursuit of a person believed to have been involved in the commission of a felony, which pursuit takes place reasonably promptly after the occurrence of the crime.⁵ The practice of the Baltimore City Police Department with respect to ordering "try ups" without seeking a search warrant is that, in a case of "fresh pursuit," no such warrant need be sought. That practice, however, is not set forth in any document or manual. In ordering his officers to "try up" the Thompson house without seeking a warrant, Anderson believed that he was following the Baltimore City Police Department's approved, though unwritten, practice.

Additionally, Anderson did not seek either an arrest or search warrant because he believed that there was no need to do so in view of the apparent reliability of the identifications; the fact that the suspect had been chased in an area not far from his home;⁶ Anderson's own knowledge that in the past Keith Thompson, when in trouble, had fled home;⁷ and Anderson's belief, based upon his experience as a police officer, that most people whose arrest is being sought for violent crimes are located by police in their homes.

Several officers preceded Anderson to the Thompson home. They included Officer Grove, who was the "officer in charge" of the sector in which the incident occurred. Pursuant to the order received from Anderson, Grove approached the entrance to the Thompson house and informed plaintiff, the mother of Keith, that her son was suspected of a serious crime and that her house would be searched if she did not surrender her son. Plaintiff stated that the officers could search the house if they so desired, but that they would not find her son, because he was at the Maryland State Training School. The officers then conducted a full and thorough search of the house, but did not find Keith.

Defendant arrived at the Thompson house while the search was in progress. Plaintiff told him, as she had previously stated to the officers, that Keith was at the Training School. Plaintiff, at trial, testified that she showed Anderson a letter from the school. Anderson and other officers testified that they did not recall any such letter. Nor was such a letter offered as evidence at trial. In any event, Anderson decided to check with the school, left the Thompson house, went to a nearby police call box, called the desk sergeant and requested him to call the school and ask if Keith Thompson was there. Anderson also gave the desk sergeant Keith's home address to pass on to the school as further identifying information. The desk sergeant reported to Anderson that the school had no resident named Keith Thompson. Anderson instructed the desk sergeant to call back, and to check again. The sergeant's second call produced no further information. Anderson thereupon returned to the Thompson home and informed plaintiff that there was no Keith Thompson at the school. Believing that plaintiff was lying, Anderson gave her a final opportunity to tell him where Keith was. When she still insisted that Keith was at the Training School, Anderson placed her under arrest for "hindering a police officer." In doing so he relied on § 7.65, at page 169, of the Baltimore City Police Department's Digest of Criminal Law and Procedure. That section provides:

It is unlawful for any person to resist or in any manner to hinder or prevent a public officer in the lawful execution of his duty, knowing him to be such officer. Penalty, fine or imprisonment, or both (Common Law offense). Desty, Criminal Law, sec. 76. The District Court has jurisdicition sic in such cases.

Plaintiff was handcuffed and escorted to the police transport wagon in the presence of certain of her children, neighbors and bystanders. After arrival at the station, she continued to insist that Keith was at the Training School. As a result, before proceeding to "book" her, Anderson personally called the school, spoke to the supervisor on duty at the time, and asked if there was anyone at the school named Thompson, mentioning, as well, the street on which the Thompsons lived. After a long pause, the response came back that a Samuel Keith Thompson, of that address, was at the School. Anderson, after checking with plaintiff to make certain that the person was Keith, then released plaintiff, drove her home and apologized.

When asked at trial to explain why he made the call after arrest and transportation to the station, rather than before, Anderson stated that generally the scene of an investigation is not conducive to a complete and competent investigation, and that therefore the "backup investigation" of an offense often occurs at the station. Nicholson's report of the incident states that the transportation of Mrs. Thompson to the station was "for further investigation." Plaintiff contends that her arrest was an excuse or subterfuge to get her to the police station. While it is true that Anderson desired to continue the investigation, it is also clear that, if his trial testimony is deemed reliable and credible (and this Court so considers it), Anderson also believed that a crime was being committed in his presence and that he had a right to arrest for the same.⁸

ISSUES

The questions arise as to whether Anderson violated any of plaintiff's rights by the search or the arrest and, if so, whether Anderson has established the good faith defense asserted by him as to both the search and the arrest.

Probable Cause for Arrest

Under all of the circumstances, it was reasonable for defendant to believe that plaintiff was lying when she told him, at her home, that Keith was in the training school. Accordingly, if lying to the police regarding the whereabouts of a fleeing robber is a crime in Maryland, defendant had probable cause to arrest plaintiff. Conversely, if such lying is not a crime in Maryland, such probable cause did not exist. See Ralph v. Pepersack, 335 F.2d 128 (4th Cir. 1964), cert. denied, 380 U.S. 925, 85 S.Ct. 907, 13 L.Ed.2d 811 (1965), in which the Court stated (at 135): "The law of the place of the arrest determines its validity."

There is a paucity of Maryland law as to whether such lying is a crime.⁹ However, Md.Ann.Code art. 27, § 150 does provide:

Any person who makes a false statement, report or complaint, or who causes a false statement, report or complaint to be made, to any peace or police officer of this State, or of any county, city or other political subdivision of this State, knowing the same, or any material part thereof, to be false and with intent to deceive and with intent to cause an investigation or other action to be taken as a result thereof, shall be deemed guilty of a misdemeanor and upon conviction shall be subject to a fine of not more than five hundred dollars ($500.00), or be imprisoned not more than six (6) months, or be both fined and imprisoned, in the discretion of the court.

The statute's inclusion of the element of intent to cause an investigation or the like may have been intended to restrict its application solely to false reports of crimes.¹⁰ The only cases interpreting the statute are consistent with that reading.¹¹ In any event, it is not an overstatement to conclude that whether lying to the police is, in and of itself, a crime in Maryland is an open question. Neither the common law nor the Maryland statute clearly excludes or includes such a crime. It is possible that under...