Cahill v. Montgomery County

ROBERT M. BELL, Judge. This appeal arises out of a civil rights action, filed pursuant to 42 U.S.C. § 1983 , in the Circuit Court for Montgomery County by Judith Cahill, appellant, against Montgomery County, Maryland, Thomas B. Ferguson and Laurie A. Roberts, appellees. 1 The complaint alleged that appellant's Fourth Amendment rights had been violated by appellees’ entry upon and search of her premises pursuant to an administrative search warrant. Appellant sought compensatory and punitive damages, an injunction against further ²⁷⁷ violations of the law, a declaration that appellees’ actions were unlawful, and attorney’s fees and expenses pursuant to 42 U.S.C. § 1988 2 . The parties having filed cross-motions for summary judgment, the court granted appellees’ motion, entered judgment in their favor, and dismissed appellant’s complaint. 2a From this judgment, appellant appeals, raising the following issues: 1.

Did appellees deprive appellant of her Fourth Amendment rights when they applied for an administrative search warrant without probable cause?; 2. Are the policies and customs of Montgomery County consistent with Fourth Amendment requirements?; and 3. Do appellees enjoy an immunity which shields their actions? For the reasons that follow, we will hold that no probable cause existed for the search of appellant’s premises, but that the individual appellees enjoyed a qualified immunity precluding an award of monetary damages.

We will also hold that summary judgment was improperly granted in favor of appellee Montgomery County since a dispute of material fact existed as to whether it maintained a policy or ²⁷⁸ custom of initiating search procedures in violation of the Fourth Amendment. 3 The facts surrounding this appeal may be summarized briefly. Appellant, the President and sole Director of Rescue, Inc., a non-profit, non-stock corporation formed exclusively for charitable and educational purposes, in her corporate capacity, picks up stray or unwanted dogs. The dogs are kept in her home and cared for while attempts are made to place them in private homes. Appellant also owns three dogs in her individual capacity.

These dogs are lawfully licensed and are also kept in her home. In December 1984, appellee Roberts received a complaint from “a confidential reliable informant” that “approximately 40 dogs were being kept on [appellant’s] premises.” Having learned from the records of the Department of Animal Control and Humane Treatment (the “Department”) that only three dogs were licensed at the premises, Roberts posted a Notice of Complaint and Corrective Action on the premises. Later, she gave appellant notice pursuant to § 5—18(b) of the Montgomery County Code 4 of her request to enter and inspect appellant’s premises. When that request was refused, Roberts made observations of appellant’s property from a public street on two occasions.

On those occasions, she saw dogs on the premises which did not fit the description of the dogs licensed at that address. ²⁷⁹ Thereafter, Roberts filed in the Circuit Court for Montgomery County a Petition for Order Permitting Entry and supporting affidavit, for the purpose of conducting a physical inspection of appellant’s property to determine whether unvaccinated dogs were on the premises in violation of § 5-45 of the Montgomery County Code. 5 In addition to the information set out above, the affidavit described the premises to be searched and described the confidential informant as a resident of the county and a personal friend of Roberts’ for many years who has provided Roberts with accurate information in the past. Roberts’ immediate supervisor and appellee Ferguson were kept fully abreast of the investigation. When Roberts was unable to confirm directly through appellant that the dogs on the premises had been vaccinated, it was Ferguson, who, after consulting with the County Attorney’s Office, made the decision to seek an administrative search warrant. Before authorizing the search, the circuit court held an adversary hearing on appellee’s petition for entry.

It was learned during the hearing that Roberts was aware that appellant operated Rescue, Inc. out of her home. The hearing also revealed that one of the dogs Roberts observed on the premises had been vaccinated just two days before the hearing. With these exceptions, the information devel ²⁸⁰ oped at the hearing was cumlative to that contained in the petition for entry and the accompanying affidavit. The court found “probable cause to believe that unvaccinated dogs may be present” on appellant’s premises, and, therefore, issued an order authorizing the entry and search. 6 The search uncovered no violations of the animal control laws. 1.

In reviewing the propriety of the lower court’s grant of summary judgment, we determine only whether, viewing the pleadings, depositions, answers to interrogatories, admissions, and affidavits, Md.Rule 2-501(e), disputed issues of material fact, or the reasonable inferences deducible therefrom, exist. Coffey v. Derby Steel Company, 291 Md. 241, 246 , 434 A.2d 564 (1981); Berkey v. Delia, 287 Md. 302, 304 , 413 A.2d 170 (1980); May Department Stores Company v. Harryman, 65 Md.App. 534, 538 , 501 A.2d 468 (1985), aff'd, 307 Md. 692 , 517 A.2d 71 (1987). We neither try the issues presented nor determine their credibility. Harry-man, 65 Md.App. at 538 , 501 A.2d 468 .

Only if but one inference may be deducible from the undisputed facts will we affirm the granting of a motion for summary judgment. Smith v. Warbasse, 71 Md.App. 625, 627 , 526 A.2d 991 (1987). The parties concede that there are no disputed issues of material fact presented by this issue. Although we agree that there are no disputed issue of material fact, we do not agree that summary judgment was properly entered in favor of appellees.

On the contrary, we hold that summary judgment should properly have been entered in favor of appellant. Accordingly, we reverse. It is now well-settled that “administrative searches generally require warrants.” Michigan v. Clifford, 464 U.S. 287, 291 , 104 S.Ct. 641, 645 , 78 L.Ed.2d 477 (1984). See ²⁸¹ also Marshall v. Barlow’s, Inc., 436 U.S. 307, 312-13 , 98 S.Ct. 1816, 1820-21 , 56 L.Ed.2d 305 (1978); Camara v. Municipal Court, 387 U.S. 523, 528-29, 534 , 87 S.Ct. 1727, 1733 , 18 L.Ed.2d 930 (1967); See v. City of Seattle, 387 U.S. 541, 543, 545 , 87 S.Ct. 1737, 1739, 1740 , 18 L.Ed.2d 943 (1967); Fred W. Allnutt, Inc. v. Commissioner, 289 Md. 35, 43 , 421 A.2d 1360 (1980).

Similarly, “privacy interests are especially strong in a private residence.” Michigan v. Clifford, 464 U.S. at 296-97 , 104 S.Ct. at 648 . It follows, therefore, that an administrative search of a private residence must comport with Fourth Amendment principles. Camara, 387 U.S. at 534 , 87 S.Ct. at 1733 ; Allnutt, 289 Md. at 42 , 421 A.2d 1360 ; See, 387 U.S. at 546, 87 S.Ct. at 1741. This requires that, before private residential premises may be subjected to an administrative search, a search warrant demonstrating probable cause for the search must be obtained.

See, 387 U.S. at 545-46, 87 S.Ct. at 1740-41. Concerning the quantum of evidence necessary to establish probable cause, Barlow’s, Inc., supra, makes clear that probable cause in an administrative context is not the same as that required in a criminal context. Id., 436 U.S. at 320 , 98 S.Ct. at 1824 . Furthermore, “[f]or purposes of an administrative search such as this, probable cause justifying the issuance of a warrant may be based not only on specific evidence of an existing violation but also on a showing that ‘reasonable legislative or administrative standards for conducting an ... inspection are satisfied with respect to a particular [establishment].’ ” Id., quoting Camara, 387 U.S. at 538 , 87 S.Ct. at 1735 .

See also Allnutt, Inc., 289 Md. at 51 , 421 A.2d 1360 . Thus, probable cause for the issuance of an administrative search warrant may be established in at least two ways. 6a ²⁸² Appellees did not contend below that they relied upon an area wide inspection, based upon established standards, to justify the search of appellant’s home and they do not do so on appeal. Rather, they concede that their petition was based upon specific information, acquired from a confidential informant, that violations existed on appellant’s property. Consequently, we must review appellees’ petition and the supporting affidavit in light of the information known to them to determine if probable cause for the search existed.

The portions of Officer Roberts’ affidavit which are pertinent to the issue of probable cause are: 3. A confidential reliable informant has informed me that approximately 40 dogs were being kept on the ²⁸³ premises. The informant has been a personal friend of mine for many years, resides in the County, and has provided me with accurate information in the past. 4. Information contained within records maintained by the Department of Animal Control indicates that there are only three licensed dogs at the premises. 5.

On January 7, 1985 at approximately 1500 hours and again on January 8, 1985 at approximately 1200 hours, I observed a number of dogs on the premises which do not match the description of the dogs licensed at the premises. The only other information received from the informant, as revealed in Roberts’ deposition, was that the 40 odd dogs were being kept in cages in appellant’s living room; the informant did not report that the dogs were being mistreated or abused, not to mention that they were unvaccinated. Moreover, Roberts’ deposition confirms that she was aware that Rescue, Inc., an incorporated benevolent society, which is not required by law to license animals kept on its premises, was operated from appellant’s home. In refutation of appellant’s contention that they had insufficient probable cause for a search, appellees proffer the following argument: The property in question is residential property owned by the Appellant.

The Department was aware from its own records that there were only three licensed dogs at that address. From these facts the inference may be drawn that privately—owned dogs were kept at Appellant’s residence. Officer Roberts personally observed dogs on the property which did not fit the description of the licensed dogs. From this fact the inference may be drawn that there were unlicensed dogs on the property.

While it is true that the animals would not have to be licensed if they belonged to the incorporated benevolent society headed by the Appellant, the animals did have to be licensed if they were owned by the Appellant personally. Since the Department already had knowledge of facts ²⁸⁴ indicating that Appellant did keep personally-owned dogs at that address, it was reasonable to believe that the dogs seen by Officer Roberts were also personally owned and thus required to be licensed. In any event, the dogs were required to be vaccinated against rabies regardless of whether they belonged to Appellant or to her organization. While we find this argument creative, we also find it to be without merit.

Where probable cause is purported to be based upon specific information of existing violations on specific property, rather than on an area wide inspection pursuant to reasonable legislative or administrative standards, it is axiomatic that the information relied upon must relate to an existing violation on that property. In other words, the information possessed must render probable the conclusion that a violation exists on the premises about which complaint is made. In the context of this case, this means that appellees, to show probable cause, would have had to have possessed information from which it could be concluded that it was probable that unlicensed or unvaccinated dogs were illegally on appellant’s premises. The only information contained in the affidavit or presented at the hearing which tended to establish a violation, was the number of dogs reportedly kept on appellant’s premises and the fact that only three dogs were licensed at appellant’s residence.

Neither of these facts suffices. Appellees knew that appellant operated a non-profit benevolent society for the care of stray dogs and that such a society is not required to license its dogs. Therefore, the probability that unlicensed dogs were illegally on the premises could not be inferred solely from the number of dogs there. Similarly, the mere keeping of a large number of dogs by a non-profit benevolent society, even though it is required to vaccinate its dogs, does not, without more, tend to establish probable cause for believing that unvaccinated dogs are illegally on the premises.

Conspiciously absent from the affidavit, the court hearing, and Roberts’ deposition is an allegation that any of the dogs on appellant’s premises were ²⁸⁵ unvaccinated. Moreover, even though it is relevant to a determination of whether § 5-45(a) has been violated, 7 no information regarding the ages of the dogs was presented or even alluded to. Nor does appellant’s ownership of three licensed dogs provide any additional evidentiary support for a finding of probable cause to believe that unvaccinated dogs were illegally on the premises. Because appellant’s dogs were licensed, they were, of necessity, vaccinated.

An inference that some of the remaining dogs were not is no more probable than that they were. In this regard, we once again note the absence of any information as to the age of any of the dogs on the premises. We reject appellees’ attempt to establish probable cause from inferences drawn from non-violations of the law. Applying the totality of the circumstances test, see Illinois v. Gates, 462 U.S. 213 , 103 S.Ct. 2317 , 76 L.Ed.2d 527 (1983), we hold that the information on which appellees proceeded, even as supplemented by the information presented at the court hearing, did not amount to probable cause sufficient to justify the administrative search of appellant’s home.

Appellees make the alternative argument, that whether probable cause existed or not, “[t]he doctrine of collateral estoppel ... bars the Appellant from relitigating the issue of probable cause for the search.” They proffer, relying upon Allnutt, Inc., supra, that the circuit court order authorizing the search was a final, appealable order. When appellant did not appeal that order, the probable cause determination inherent in it became binding upon the parties to the action. Consistent with appellant’s rebuttal, we reject this argument. First, as appellant points out, “[t]he fact issue involved in this case is what factual bases, if any, supported appellees’ warrant application, not what supported the circuit court ²⁸⁶ judge’s issuance of a warrant.” Thus, the issues which would have been involved on an appeal of the judge’s probable cause determination are quite different from those presented in this § 1983 action.

Moreover, to hold that the doctrine of collateral estoppel applies in circumstances such as this would significantly undermine the Supreme Court’s decision in Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092 , 89 L.Ed.2d 271 (1986). In Malley , as a result of a criminal investigation, a State Trooper applied for, and obtained a warrant for the plaintiff’s arrest. When the Grand Jury refused to return an indictment against him the plaintiff filed a § 1983 action against the trooper, alleging that his Fourth and Fourteenth Amendment rights had been violated. Although, unlike the instant case, the arrest warrants were obtained in an ex parte proceeding, at which the plaintiff was neither present nor a participant, one of the clear holdings of Malley is that state officials may not avoid the consequences of their illegal behavior by invoking the shield of a judicial finding of probable cause.

Id., 475 U.S. at 344-346 , 106 S.Ct. at 1098-99 . Second, although we acknowledge that Allnutt, Inc. does stand for the proposition for which appellees cite it, we believe it to be inapposite. There, an administrative search warrant permitting the search of Allnutt’s headquarters and maintenance shop was issued by the District Court of Maryland for Howard County. Allnutt's motion to quash the warrant was denied by the district court and Allnutt appealed to the circuit court, which dismissed the appeal.

The Court of Appeals granted certiorari and reversed, holding that the district court order was final and appealable. Id., 289 Md. at 41 , 421 A.2d 1360 . No where in the case, however, is there a suggestion that, prior to resolution of the issue on appeal, the search warrant had been executed. Here, on the other hand, the search occurred within three hours of the issuance of the warrant.

Although it was possible for appellant, prior to the search, to have noted an appeal from the order authorizing the search, unless the ²⁸⁷ execution of the order were stayed, her appeal would have been moot. A question presented on appeal is moot “if, at the time it is before the court, there is no longer an existing controversy between the parties, so that there is no longer any effective remedy which the court can provide.” Attorney General v. A. A. School Bus, 286 Md. 324 , 327, 407 A.2d 749 (1979). See Mercy Hospital v. Jackson, 306 Md. 556, 561 , 510 A.2d 562 (1986); Williams v. Williams, 63 Md.App. 220, 225 , 492 A.2d 649 (1985). Such is the situation with regard to the probable cause determination in this case: since the search occurred within hours of the issuance of the search warrant and may not have been stayed even if a request for a stay had been made, appellant had no meaningful opportunity to appeal.

Under the circumstances here presented, we hold the doctrine of collateral estoppel to be inapplicable. 2. In light of our holding that there was no probable cause for the search, it is logical that we next address appellees’ immunity defense. Before deciding whether, and to what extent, if any, appellees are entitled to that defense, an observation concerning the scope of any immunity is in order. In her complaint, appellant sought injunctive,