Bord v. Baltimore County

REED, J. This appeal involves litigation arising from the execution of a search and seizure warrant of David Bord’s (“Appellant”) home in which Corporal Anthony Kidwell (“Cpl. Kidwell”) and Detective Socha (“Det. Socha”) of the Baltimore County Police ⁵³⁷ Department recovered twenty-eight firearms and a 30mm cannon. Appellant alleges that the officers mishandled the firearms, causing damages to his firearms.

The primary issue before us is whether appellant is entitled to statutory damages under Criminal Procedure Article (“C.P.”) § 1-203 of the Maryland Code. Appellant filed suit against both officers and the County Police in the Circuit Court for Baltimore County. The circuit court granted the two officers’ motions to dismiss, finding that the police officers were immune from civil liability in the absence of malice. The circuit court also held appellant’s claims were common law tort claims, and thus, granted Baltimore County’s motion for judgment on the basis of government immunity.

Appellant filed this timely appeal, and presented five questions for our review, which we rephrased into four questions 1 : 1. Does C.P. § l-203(d) provide a civil cause of action for money damages where property is damaged during the execution of a search and seizure warrant? ⁵³⁸ 2. Did the circuit court err in granting the individual officers’ motion to dismiss and Baltimore County’s motion for judgment on the basis of governmental immunity? 3. Did the circuit court abuse its discretion in refusing to allow appellant to amend the pleadings? 4.

Did the circuit court abuse its discretion in refusing to impose sanctions against appellee Baltimore County under the discovery rules? For the following reasons, we answer all questions in the negative, and affirm the judgment of the circuit court. Facts and Procedural Background The facts are from the parties’ respective factual submissions and trial testimony: Appellant is a licensed gun collector, and has an extensive collection of firearms that were fully registered and documented. All weapons were securely stored in safes within his basement of his residence, and a 30mm cannon was stored within his automobile repair shop.

Appellant testified that most of the firearms were at least “50 years old, [in] excellent condition, superbly maintained and ... the cream of the crop.” In 2009, agents from the ATF Baltimore and Phoenix Field Offices approached Det. Socha, a Baltimore County Police Detective, concerning an investigation of illegal machine guns being transported into Maryland. The ATF agents informed Det. Socha that they interviewed appellant in 2008 and seized an illegally manufactured machine gun from appellant at that time.

The ATF agents also told Det. Socha that there was “possibly another machine gun that was in his possession.” Based upon this information, Det. Socha applied for a search warrant for appellant’s home at 9 Springbriar Lane and his business at 6303 Blair Hill Lane, in Baltimore County. The search warrant was based on a violation of the Maryland Code, Criminal Law Article (“C.L.”) § 4 — 405(a)(l)(iii). 2 ⁵³⁹ On December 8, 2009, while appellant was staying with friends in California after attending a gun show in Arizona, appellant received a phone call from Cpl.

Kidwell. The corporal explained that a police team was present at appellant’s residence with a warrant, and that they intended to open the door and drill open appellant’s gun safes. Appellant called his adult children, who proceeded over to the residence, and opened the door and gun safes for the officers. The police officers executed the search and seizure warrant, as the ATF seized certain weapons they determined would require further investigation.

Det. Socha testified that the weapons were placed on top of a wool blanket in a Baltimore County vehicle, and appellant’s children requested that towels be used to cover them for protection. Upon the request of appellant’s children, Det. Socha testified that the firearms were “laid flat down in the bed of the ... evidence truck” and towels were used “as ... [they] laid more guns down for protection” Det.

Socha testified that nothing was laid on top of the 30mm cannon when it was seized from appellant’s auto repair shop. Appellant’s neighbor testified that the firearms were loaded into a mobile lab “one on top of the other” in “no particular order, [with] no particular care taken,” and it appeared as if the police officers were building a “bonfire.” Appellant later testified that, during the execution of the warrant, the police had “broken open” all of his firearms and removed the slides, and “all the mags were thrown on the floor, and every gun was taken out of its box and disassembled to make sure that it wasn’t loaded.” A total of twenty-eight weapons were seized ⁵⁴⁰ from appellant’s residence and a 30mm cannon was seized from appellant’s place of business. On about December 12 or 13, 2009, appellant met with the Baltimore County Police and an ATF agent, and allowed the officers to examine his paperwork for the firearms, but the police refused to return the firearms at that time. Appellant alleged in his complaint that, when he presented his paperwork during this meeting, Det.

Socha and Cpl. Kidwell responded he should “save it for court,” that his paperwork was “ ‘wrong’ or ‘bull_t’ ” and that they did not believe in its accuracy. At a March 15, 2011, motions hearing, appellant testified that the officers were “ill-mannered” and “ill-tempered” during that meeting and, when he asked for the return of his firearms, they told him “that’s not going to happen[ ] today,” and also stated words to the effect that “plaintiff would never get his property back.” On August 27, 2010, after several unsuccessful attempts to recover his firearms, appellant filed his complaint, which consisted of three counts: (1) demand for return of property, (2) detinue, and for (3) trover and conversion against Baltimore County, Det. Socha, and Cpl.

Kidwell. Appellant subsequently requested a temporary restraining order, which was granted on August 31, 2010, followed by a request for preliminary injunction enjoining appellee from selling, destroying or damaging the property seized from appellant, which was granted on September 16, 2010. In November of 2010, the State charged appellant for possession of a banned assault pistol, which was placed on the stet docket. Appellant was not charged under any federal criminal statutes.

The appellees moved to dismiss the complaint, and after the March 25, 2011, hearing, the circuit court granted the motion to dismiss as to the two officers because the civil liability of police officers in the ordinary course of employment requires allegations of actual malice, which appellant did not sufficiently allege. The circuit court, however, denied appellee Baltimore County’s motion to dismiss. In that same order, the circuit court granted appellant leave to amend ⁵⁴¹ the complaint. Subsequently, appellant filed a motion for summary judgment, which was denied.

On August 10, 2010, appellee Baltimore County released eighteen of the twenty-eight firearms to the ATF. The remainder of the firearms were released to the ATF on March 31, 2011, and May 5, 2011. At this point, appellee possessed only the 30mm cannon. As of the March 19, 2013, hearing, appellee returned the 30mm cannon to appellant.

By the date of trial, appellee was no longer in possession of any of appellant’s firearms. The circuit court conducted a trial on the merits on March 19, 20, and 21, 2013. At trial on March 20, 2013, appellant rested his case, and the County made a motion for directed verdict primarily based on governmental immunity. The circuit court reserved its ruling on appellee’s motion for directed verdict to allow the parties to brief the issue on governmental immunity.

During trial on March 21, 2013, Det. Socha testified that entry and exit photos were taken during the execution of the search warrant. Counsel for appellant stated that he had previously made numerous requests for those photos to no avail. In light of this development, the circuit court continued the trial by agreement to allow appellant to obtain copies of the photos, and also to brief the issue on governmental immunity.

On April 12, 2013, appellant filed a motion to reconsider order of dismissal against the officers, and a motion for leave to amend pleadings. At the hearing on April 29, 2013, the court denied both motions on the basis that appellant had previously received leave to amend and failed to amend the complaint against the officers during the two years that had passed. The circuit court also held that it would be unfair to allow appellant to amend after appellant had already rested his case. At the conclusion of trial, the circuit court granted appellee Baltimore County’s motion for judgment.

Relying on DiPino v. Davis, 354 Md. 18 , 729 A.2d 354 (1999), the circuit court found that appellant’s causes of actions were common law torts. As a result, appellee Baltimore County was not liable ⁵⁴² for common law torts committed while acting in a governmental capacity. The circuit court held that “executing a search and seizure warrant and confiscating property during that search and seizure warrant is a governmental function,” and therefore, governmental immunity protected appellee from liability. Appellant moved for a new trial on June 28, 2013, and the circuit court denied that motion on July 30, 2013.

The circuit court explained that, although appellee failed to provide the photos taken during the search and seizure, a new trial was not warranted because appellant failed to explain “how [] [appellee]’s failure to provide the photographs during discovery prejudiced [appellant] or is relevant to [] [appellee]’s defense of immunity, or establishes that ‘no reasonable officer could have believed that the conduct complained of was lawful.’ ” Discussion I. Statutory Interpretation A. Contentions Appellant contends that the circuit court erred in holding that appellant’s causes of action are common law torts, and that appellee Baltimore County is entitled to government immunity from such actions. Appellant argues that a violation of the C.P. § 1 — 203(d) provides a private cause of action for statutory damages. Appellant argues that the circuit court’s holding has the effect of immunizing all county or local police agencies from having to return property, rendering C.P. § 1-203(d)(1) useless. In addition, although all the weapons have been returned to appellant, appellant now converts his action to one for compensation for damages caused to his property.

He contends that this Court should remand to the lower court, so that it can interpret the meaning of “restore” in C.P. § 1 — 203(d)(1). Appellant argues that the General Assembly’s use of the word “restore” as opposed to “return” in the statute is significant, ⁵⁴³ because it reveals the General Assembly’s intention to provide for compensation for damages to property. Appellee contends that appellant’s Count 1 Claim titled “Demand for Return of Property” for a violation of C.P. § 1-203(d) was moot at the time of trial, because his property was returned before trial. In addition, that claim did not request damages.

Appellee contends that although Counts II and III request damages, a civil cause of action for money damages cannot be based on C.P. § l-203(d), and thus, appellant cannot be awarded damages under that statute. Appellee argues that the use of the word “restore” means return of property, which is consistent with the use of “restore” in other Maryland statutes. Specifically, the General Assembly did not include a right to pursue payment for property as it did in other statutes, which shows the statute’s intent is solely to allow the court to order the return of property. Finally, appellee contends that assuming, arguendo, that the statute provided a right to pursue damages, appellant’s claims are consistent with a tort action, to which government immunity would be applicable.

B. Standard of Review & Law “Whether the [circuit] court applied the correct standard of proof in adjudging its grant of appellees’ motion for judgment is a question of law that we review de novo.” Lowery v. Smithsburg Emergency Med. Serv., 173 Md.App. 662, 682-83 , 920 A.2d 546 (2007) (internal citations omitted). “We review the grant of a motion for judgment under the same standard as we review grants of motions for judgment notwithstanding the verdict.” Tate v. Bd. of Educ. of Prince George’s Cnty., 155 Md.App. 536, 544 , 843 A.2d 890 (2004) (internal citation omitted). The Court assumes the truth of all credible evidence on the issue and any inferences therefrom in the light most favorable to appellants, the non-moving parties. Id.

(internal citation omitted). “Consequently, if there is any evidence, no matter how slight, that is legally sufficient to generate a jury question, the case must be submitted to the jury for its consideration.” Id. at 545 , 843 A.2d 890 (citing ⁵⁴⁴ Washington Metro. Area Transit Auth. v. Reading, 109 Md.App. 89, 99 , 674 A.2d 44 (1996)). This case also presents a question of statutory interpretation, and therefore, we review the circuit court’s disposition through summary judgment under a non-deferential standard of review. Breslin v. Powell, 421 Md. 266, 277 , 26 A.3d 878 (2011) (internal citation omitted).

Accordingly, “we must determine whether the [circuit] court’s conclusions are legally correct under a de novo standard of review.” Jackson v. 2109 Brandywine, LLC, 180 Md.App. 535, 567 , 952 A.2d 304 , cert. denied, 406 Md. 444 , 959 A.2d 793 (2008) (internal quotation marks and citation omitted). C. Analysis In Count I of appellant’s complaint, appellant demanded the return of his firearms. The record reflects that all firearms in appellee’s possession were returned to appellant. Appellant now contends that because the firearms were damaged while in appellee’s possession, appellee is liable for the damages.

Appellant unpersuasively argues that C.P. § l-203(d)(l) provides a civil cause of action for money damages, because the statute’s use of the term “restore” encompasses damages, and not merely the “return” of property. The appellant did not request the circuit court directly to interpret the term “restore,” but after having reviewed the record, it appears that appellant raised the substance of this argument before the circuit court. Thus, we will address this issue. We also affirm the circuit court’s holding that appellant’s claims constitute a tort action, and the officers are entitled to immunity absent malice.

It is well established that “[t]he cardinal rule of statutory interpretation is to ascertain and effectuate the real and actual intent of the Legislature.” Lockshin v. Semsker, 412 Md. 257, 274 , 987 A.2d 18 (2010). The Court of Appeals explained: To ascertain the intent of the General Assembly, we begin with the normal, plain meaning of the language of the ⁵⁴⁵ statute. If the language of the statute is unambiguous and clearly consistent with the statute’s apparent purpose, our inquiry as to legislative intent ends ordinarily and we apply the statute as written, without resort to other rules of construction. We neither add nor delete language so as to reflect an intent not evidenced in the plain and unambiguous language of the statute, and we do not construe a statute with “forced or subtle interpretations” that limit or extend its application.

We, however, do not read statutory language in a vacuum, nor do we confine strictly our interpretation of a statute’s plain language to the isolated section alone. Rather, the plain language must be viewed within the context of the statutory scheme to which it belongs, considering the purpose, aim, or policy of the Legislature in enacting the statute. We presume that the Legislature intends its enactments to operate together as a consistent and harmonious body of law, and, thus, we seek to reconcile and harmonize the parts of a statute, to the extent possible consistent with the statute’s object and scope. Where the words of a statute are ambiguous and subject to more than one reasonable interpretation, or where the words are clear and unambiguous when viewed in isolation, but become ambiguous when read as part of a larger statutory scheme, a court must resolve the ambiguity by searching for legislative intent in other indicia, including the history of the legislation or other relevant sources intrinsic and extrinsic to the legislative process.

In resolving ambiguities, a court considers the structure of the statute, how it relates to other laws, its general purpose, and the relative rationality and legal effect of various competing constructions. In every case, the statute must be given a reasonable interpretation, not one that is absurd, illogical, or incompatible with common sense. Id. at 275-77 , 987 A.2d 18 (internal quotation marks and citations omitted). ⁵⁴⁶ i. Plain Language Accordingly, we look first to the text of the statute.

C.P. § l-203(d) provides: Application or motion for restoration of property (d)(1) A circuit court judge or District Court judge shall cause property rightfully taken under a search warrant to be restored to the person from whom it was taken if, at any time, on application to the judge, the judge finds that the property is being wrongfully withheld after there is no further need for retention of the property. (2) The judge may receive an oral motion made in open court at any time making application for the return of seized property if the application for return is based on the ground that the property, although rightfully taken under a search warrant, is being wrongfully withheld after there is no further need for retention of the property. (3) If the judge grants the oral motion described in paragraph (2) of this subsection, the order of the court shall be in writing and a copy of the order shall be sent to the State’s Attorney. (4) Court costs may not be assessed against the person from whom the property was taken if: (i) the judge denies the oral motion and requires the person from whom the property was taken to proceed for return of the seized property by petition and an order to show cause to the police authority wrongfully withholding the property; and (ii) it is later ordered that the property be restored to the person from whom it was taken.

(Emphasis added.) C.P. § l-203(d) does not define the term “restore.” Webster’s New Collegiate Dictionary defines “restore” as: “1: to give back: RETURN 2: to put or bring back into existence or use 3: to bring back to or put back into a former or original state: RENEW 4: to put again in possession of something.” Webster’s New Collegiate Dictionary 987 (1973). Here, the ⁵⁴⁷ definition is consistent with the return of property. Although, one definition provides “to bring back to or put back into a former or original state[,]” it is followed by “RENEW.” The language of the statute does not contain the word “renew” or any language that requires property to be restored to its former or original condition. Thus, review of the plain meaning of that term supports the conclusion that the statute only provided for the return of property.

We also note that the statute is found in the Article entitled “Search Warrants” and section entitled “Application or motion for restoration of property.” It is clear that this statute created a criminal, and not, civil remedy, for the physical return of property. Section 1 — 203(d)(1) directs the circuit court or district court judge to “cause property rightfully taken under a search warrant to be restored to the person from whom it was taken if, at any time, on application to the judge, the judge finds that the property is being wrongfully withheld after there is no further need for retention, of the property. ” (Emphasis added.) Subsection (d)(2) directs the court to “return” property rightfully taken under a search warrant upon receiving an “oral motion ... on the ground that the property is being wrongfully withheld after there is no further need for retention of the property.” Here, appellant made no application or oral motion to a judge for the return of property, as required under the statute. Thus, appellant did not follow the proper methods to seek return of his property. Furthermore, appellant’s contention that § l-203(d)(l) provides for money damages would result in an illogical conclusion in which persons making a claim under subsection (d)(1) would be entitled to collect damages while those claiming under subsection (d)(2) would only be entitled to the return of possession of the property seized. ii.

Legislative History “Nevertheless, we may resort to legislative history to ensure that our plain language interpretation is correct.” ⁵⁴⁸ Bd. of Educ. of Baltimore Cnty. v. Zimmer-Rubert, 409 Md. 200, 215 , 973 A.2d 233 (2009) (internal citation omitted). “We avoid a construction of the statute that is unreasonable, illogical, or inconsistent with common sense.” Id. (internal quotation marks and citations omitted). The term “restore” has been used in the statute since it was enacted in 1939 under Article 27, Chapter 749, section 306 (1939). 3 Since then, the statute was amended, which this Court discussed in great detail in In re Special Investigation No. 228, 54 Md.App. 149, 458 A.2d 820 (1983). Thus, review of that case is instructive to our analysis.

In that case, this Court thoroughly analyzed and explained the purpose of the former Article 27, § 551, predecessor to C.P. § 1-203: Prior to 1975, § 551 had directed that property “be restored to the person from whom it was taken” only in cases where that taking had been somehow improper, at least illegal if not actually unconstitutional. Chapter 704 of the Acts of 1975 added an additional set of circumstances when property should be returned, one where the initial search and seizure had been perfectly proper but where the criminal case had since been nol-prossed or dismissed or had resulted in an acquittal. Under such circumstances, all property “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.” This set of circumstances does not remotely involve the Exclusionary Rule or any other rule of evidence. It is ⁵⁴⁹ substantive law, not procedural law.

It only comes into play after the trial is over or the prosecution otherwise terminated. A prophylactic rule, moreover, aimed (as is the Exclusionary Rule) at deterring future police misbehavior, would have no utility in circumstances such as these where there has been no police misbehavior. This aspect of § 551, furthermore, directs that the property be returned not “to the person from whom it was taken” but rather “to the person to whom it belongs.” Here is a significant difference. Here, the rightful owner of stolen property could invoke the benefit of § 551, even following the possible acquittal of the thief.

The earlier provisions of § 551, on the other hand, seemed to direct the return of unlawfully seized property to the thief himself (assuming he was the person from whom the stolen goods had been unlawfully seized). The 1976 amendment added yet a third set of circumstances under which property should be returned. This newly created subsection (c) also dealt with circumstances where initially the property had been “rightfully taken under a search warrant” but where it subsequently “is being wrongfully withheld after there is no further need for retention of the property.” Strangely and perhaps inadvertently, this third subsection of the law directs the judge to cause the property “to be restored to the person from whom it was taken,” and not, as in subsection (b), “to the person to ivhom it belongs. ” Applied literally, this subsection would seem to confer a right upon a convicted thief which would not be available to the rightful owner of the stolen goods. Id. at 164-65, 458 A.2d 820 (emphasis added).

This Court concluded that “Subsections (b) and (c) deal exclusively with possessory rights separate and apart from any question of unconstitutional or otherwise unlawful searches. 4 They are easy to understand and to apply.” Id. at 167 , 458 A.2d 820 . ⁵⁵⁰ Similarly in Dail v. Price, 184 Md. 140 , 40 A.2d 334 (1944), the Court of Appeals also explained that Section 306 of Article 27 of the Maryland Code (1939), which was another predeees ⁵⁵¹ sor to C.P. § 1-203, “was not designed as a substitute for an action of replevin, or other appropriate proceeding, for the determination of the right to possession of property after it has served its purpose as real evidence in a criminal case.” 5 Id. at 144, 40 A.2d 334 . The Supreme Court of Oregon’s opinion in Emery v. State, 297 Or. 755 , 688 P.2d 72 (1984), is instructive. That court dealt with the issue of the definition of “restore.” That court examined a similar statute, Or.Rev.Stat. Ann. § 133.633 (West 2014), which provides: (1) Within 90 days after actual notice of any seizure, * * *: (a) An individual from whose person, property or premises things have been seized may move the appropriate court to return things seized to the person or premises from which they were seized. (b) Any other person asserting a claim to rightful possession of the things seized may move the appropriate court to restore the things seized to the movant.

Id. at 75 (alterations and emphasis in original). In that case, the court considered whether the statute entitled plaintiff to damages to his pickup truck that was seized by the state as evidence on a warrant. Id. at 73-74. The plaintiffs contended that the Oregon “legislature intended that in addition to restoring possession of the seized property to the owner, the state is also required to restore the property to its previous condition.

In other words, they argue[d] that the defendants are required to give the 1977 pickup truck ⁵⁵² back to them in the same condition it was at the time of the seizure or pay damages.” Id. at 75. The Emery court determined that the legislature used the term “return” in § 133.633(l)(a) and the term “restore” in § 133.633(l)(b) “because it perceived a distinction in the classes of people moving to reclaim the possession of property that had been seized.” Id. at 76. The Emery court explained that the legislature: placed a tight and limited definition on the term “return” and in effect used it to mean that property could only be “returned” to people and premises from whence it came. Having used a tight definition of “return” in [§] 133.633(l)(a) then the legislature needed a broader term to define the giving back of property to other persons claiming the right to possession under subdivision (b) and chose the word “restore.” People in the latter category include the owners of stolen property — their “rightful possession of the things seized” may be “restored.” Id.

That court further explained that “[t]o hold otherwise and follow the plaintiffs’ contention would mean that persons claiming under [§] 133.633(l)(a) would be entitled only to the return of possession of the property seized while those qualifying under [§] 133.633(l)(b) would be able to collect damages. There is no logical basis for such a distinction and we hold that the legislature did not so intend.” Id. As discussed earlier, this Court also recognized this distinction between the possessory rights of those owners holding legal title and those in mere possession of the property. In re Special Investigation No. 228, 54 Md.App. at 165 , 458 A.2d 820 (noting that the statute’s language that “property [ ] ‘be restored to the person from whom it was taken’ ” had the effect of returning stolen goods to a thief, although they do not have rightful ownership of the stolen goods).

We find guidance in both cases and agree that a broad definition of the term “restore” is inappropriate. Thus, we cannot interpret the language of the statute in favor of appellant’s reading that C.P. § l-203(d) provides a statutory right to money damages. ⁵⁵³ “[T]he presence or absence of an indication of legislative intent to create a private remedy is a very important factor to be considered by a court in determining whether to recognize a tort duty or a new private right of action, it is not the only factor.” Erie Ins. Co. v. Chops, 322 Md. 79, 90 , 585 A.2d 232 (1991) (internal citations omitted). Other factors include “whether the plaintiff is one of the class for whose special benefit the statute was enacted, and whether it is consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff.” Id. at 91 , 585 A.2d 232 (citations omitted).

The statute in question is titled the “Criminal Procedure Article.” The prefatory purpose statement of Senate Bill 1, which recodified the Criminal Procedure Article in 2001, clarified that the purpose of the new article was “to revise, restate, and recodify the laws pertaining to law enforcement procedures, the arrest process, warrantless arrests, [ ] fresh pursuit both in-State and out-of-state[,] ... the forfeiture of property involved in controlled dangerous substance violations and violations of gambling and gun laws; defining certain terms; providing for the construction and application of this Act; ... and generally relating to laws of the State relating to criminal procedure.” It is apparent that the statute was not substantively changed to benefit a special class of person. Rather, the statute’s principal focus remained the same: to guide the courts and police forces in performing their duties relating to criminal procedure, and not to provide remedies for those claiming police officers violated the statute. It is also apparent that the underlying purpose of subsection (d)(1) of § 1-203 is to permit a judge to allow persons to seek the return of their property after the police have executed a search and seizure warrant, rather than to compensate for damages that arise from the execution of a search warrant. See In re Special Investigation No. 228, 54 Md.App. at 160 , 458 A.2d 820 (“The central purpose ... was to set out the requirements for obtaining a search warrant.”).

Given the legislative history of the statute, and the absence of ⁵⁵⁴ legislative intent to create a private remedy, it is apparent that § 1 — 203(d) does not provide an implied private right of action. As a result, appellant’s claims for damages to his firearms are grounded in tort law, and not § 1-203. Our case law supports the circuit court’s conclusion that appellant’s claims for “return of property” and damages to his firearms are tort claims. In Novak v. State, 195 Md. 56 , 72 A.2d 723 (1950), the Court of Appeals considered a case where the petitioner, who was convicted for violating gambling laws, filed an action to recover monies seized during the execution of a search and seizure warrant.

Id. at 59-60 , 72 A.2d 723 . The Court of Appeals considered the petition to be filed appropriately in the criminal case as “an equivalent of an action of replevin (if the money was still held in specie) or of trespass or trover for the determination of title (so far as necessary) or right of possession to the money.” Id. at 64 , 72 A.2d 723 . In the present case, appellant demanded the return of property, which is equivalent to a replevin action. In addition, the plaintiffs other counts were titled detinue, trover and conversion, which are also tort claims. 6 Therefore, we affirm the circuit court’s holding that appellant’s claims were tort actions.

Having made this determination, we next address whether appellees were entitled to the enjoyment of governmental immunity. ⁵⁵⁵ II. Motion to Dismiss A. Contentions Appellant contends that the circuit court erred in dismissing his claims against Cpl. Kidwell and Det. Socha.

Appellant contends that there was ample pleading and showing of malice. Specifically, appellant points to the allegations in the complaint: • The defendants caused “extensive damage” to both locations searched and “items seized as well as property not seized.” • The defendants acted to “intimidate [appellant], to cause economic injury to [appellant], and for gratuitous sport rather than for proper law enforcement purposes[,]” discussed infra. • “Det. Socha [and] Cpl. Kidwell and other members of the [Baltimore County Police Department (“BCPD”) ] ... had actual knowledge that such allegations were false and/or misleading....” • The defendants made numerous derogatory comments to his employees and family members regarding his character, discussed infra. • That Appellant had yet to be charged with any crime by the appellee at the date of the Complaint. • The BCPD was “in the custom of overly aggressive conduct, under the pretense of enforcing various firearms statutes.” Appellant asserts that these allegations easily met the requirement of raising a reasonable inference that the two officers intentionally performed an act without legal justification or excuse, but with an evil or rancorous motive influenced by hate, the purpose being to deliberately and willfully injure appellant.

Appellee counters that the circuit court did not abuse its discretion in dismissing claims against the two officers. Appellee contends that the circuit court considered appellant’s allegations in comparison with the case law concerning quali ⁵⁵⁶ fied immunity for public officials and correctly ruled that the actions of both officers were not malicious. Appellee argues that the officers are shielded by immunity under Md.Code., Cts. & Jud. Proc.

(“C.J.P.”) § 5-507(a)(l) for public officials engaging in a discretionary capacity. B. Standard of Review A motion to dismiss for failure to state a claim tests the sufficiency of the pleadings. Maryland Rule 2-322(b)(2). Therefore, when reviewing the circuit court’s grant of a motion to dismiss, the reviewing court “must assume the truth of, and view in a light most favorable to the non-moving party, all well-pleaded facts and allegations contained in the complaint,” as well as reasonable inferences that may be drawn from them.

RRC Ne., LLC v. BAA Md., Inc., 413 Md. 638, 643 , 994 A.2d 430 (2010) (internal citations omitted). We will affirm the circuit court’s grant of a motion to dismiss “only if the allegations and permissible inferences ... would not afford relief to the plaintiff.” Id. A reviewing court may look only to the facts and allegations contained in the original complaint. See id.

(citing Converge Servs. Grp., LLC v. Curran, 383 Md. 462, 475 , 860 A.2d 871 (2004)). C. Analysis Because appellee Baltimore County can only be held liable for Cpl. Kidwell and Det.

Socha’s actions if they acted with actual malice or committed an intentional tort, we address appellant’s claim against the officers first. Common law public official immunity applies when the actor is (1) a public official, (2) the tortious conduct occurred in the course of the actor’s performance of discretionary, rather than ministerial acts, and (3) those acts were within the scope of the actor’s official duties. See Houghton v. Forrest, 412 Md. 578, 585 , 989 A.2d 223 (2010). Policemen are “public officials.” Robinson v. Bd. of Cnty.

Comm’rs for Prince George’s Cnty., 262 Md. 342, 346-47 , 278 A.2d 71 (1971) (“It is clear that policemen are ‘public ⁵⁵⁷ officials,’ and that when they are within the scope of their law enforcement function they are clearly acting in a discretionary capacity.”) (internal citation omitted). No dispute has been raised as to whether Cpl. Kidwell and Det. Socha’s actions were discretionary or ministerial.

As they were executing a search warrant — a function well-within the scope of their law enforcement duties — it is apparent that Cpl. Kidwell and Det. Socha were empowered with the discretionary “freedom to act according to one’s judgment in the absence of a hard and fast rule.” Schneider v. Hawkins, 179 Md. 21, 25 , 16 A.2d 861 (1940). Thus, both