Chu v. Anne Arundel County

RODOWSKY, Judge. Maryland Code (1957, 1982 Repl. Yol., 1987 Cum. Supp.), Art. 27, § 551 comprises the subtitle on “Search Warrants” and, according to the codifier’s catch line, deals with “[i]ssuance; contents; time of search, etc.; disposition of property seized.” Section 551(a) provides, inter alia, for a civil proceeding for the return of property taken under a search warrant if “there is no probable cause for believing the existence of the grounds on which the warrant was issued----” The petitioners in this case, Peter and Nancy Chu (the Chus), brought a § 551 civil action in which they advanced the theory that the statute incorporates, and expands with, judicial interpretations and applications of the ⁶⁷⁵ fourth amendment to the Constitution of the United States.

This expanding construction, the Chus submit, includes the federal exclusionary rule applicable to the states as promulgated in Mapp v. Ohio, 367 U.S. 643 , 81 S.Ct. 1684 , 6 L.Ed.2d 1081 (1961). The Circuit Court for Anne Arundel County ordered the return of records seized from the Chus. In Anne Arundel County v. Chu, 69 Md.App. 523 , 518 A.2d 733 (1987), the Court of Special Appeals reversed and we granted the Chus’ petition for certiorari. We shall hold that the intermediate appellate court correctly rejected the construction of § 551 advanced by the Chus.

Peter and Nancy Chu are dentists who practice their profession together from an office building in Odenton where they display a sign, “Odenton Dental Care.” On November 1, 1985, an investigator for the State’s Attorney for Anne Arundel County applied for a warrant to search the Chus’ office premises for designated types of records relevant to an investigation which involved possible fraud on insurers of the costs of dental care. In his affidavit supporting the application the investigator first presented certain information received from the representative of a commercial insurer. The affidavit then stated: Based upon the above information and the assumption that a Maryland dentist would make substantial dental insurance claims to Maryland Blue Cross/Blue Shield, your affiant requested Maryland Blue Cross/Blue Shield to conduct an audit of the Odenton Dental Care, which was and is operated by Drs. Nancy and Peter Chu in September of 1985.

Thereafter the affiant set forth information received from Maryland Blue Cross/Blue Shield. The warrant was issued and executed on the day of the request. Approximately two months later the Chus moved for return of the seized records pursuant to § 551. No criminal proceedings which the parties consider relevant to this case have ever been brought against the Chus, or either of them.

Nor is there any contention that, if all of the information contained in the affidavit in support of the search warrant ⁶⁷⁶ is considered, there is any want of probable cause to support the warrant. As presented to us the argument in support of return of the property involves a number of steps. The first step requires a legal determination that the reference to probable cause contained in § 551 embraces the exclusionary rule applied to deter state agents from violating the fourth and fourteenth amendments. Next, it is submitted that the “requested” audit of the Chus by Maryland Blue Cross/Blue Shield was performed by an agent of the State of Maryland and that any purported consent to that audit had no legal effect.

Since the audit is said to have infringed the Chus’ fourth and fourteenth amendment rights, all information obtained through the “requested” audit must be excised from the affidavit when reviewing it for probable cause. The final step requires concluding that, in redacted form, the affidavit fails to present probable cause to support issuance of the search warrant. Because we do not accept the first step of the Chus’ submission we do not reach the factual and legal issues of the remaining steps in the argument. This case is one of statutory construction.

The Chus do not argue that in proceedings under a § 551 petition for the return of seized property any federal constitutional exclusionary rule operates directly on evidence offered to justify the seizure or retention. Rather, their position is that where the § 551 petition is predicated on an alleged want of probable cause to support the search warrant the concept of probable cause contained in § 551(a) must be regarded “as requiring interpretation in the light of evolving Fourth Amendment decisional law.” To present and evaluate this argument more fully, we must first review the history of exclusionary rules at the federal level and in Maryland. In Lawrence v. State, 103 Md. 17 , 63 A. 96 (1906), the defendant argued for the exclusion of certain evidence obtained in the warrantless search of a satchel he had left at a public hotel. 103 Md. at 32 , 63 A. at 101 . This Court interpreted the objection to be predicated on the manner in ⁶⁷⁷ which the evidence was obtained.

The evidence seized in Lawrence included certificates for shares of stock in a gold mining company and was relevant to the scienter element of the false pretenses charge. Quoting from Commonwealth v. Tibbetts, 157 Mass. 519 , 32 N.E. 910 (1893), this Court said that “ ‘[ejvidence which is pertinent to the issue is admissible although it may have been procured in an irregular or even an illegal manner.’ ” 103 Md. at 36 , 63 A. at 103 . In 1914 the Supreme Court first clearly espoused a rule excluding property seized in an unlawful search and seizure. The rule applied only to federal law enforcement officials.

See Weeks v. United States, 232 U.S. 383 , 34 S.Ct. 341 , 58 L.Ed. 652 . In 1928 this Court was urged to apply the Weeks’s exclusionary rule to Maryland law enforcement officers but declined to do so in a four to three decision. See Meisinger v. State, 155 Md. 195 , 142 A. 190 . The next year the General Assembly by Ch. 194 of the Acts of 1929 enacted an exclusionary rule limited to misdemeanors.

This statute was known as the Bouse Act. As amended from time to time in particulars not here relevant, this statutorily based Maryland exclusionary rule remained part of the Maryland Code in Art. 35, “Evidence,” until the Bouse Act was repealed in 1973. The statute with which we are concerned, § 551 of Art. 27, had its genesis in Ch. 749 of the Acts of 1939. Its “central purpose ... was to set out the requirements for obtaining a search warrant.” In re Special Investigation No. 228, 54 Md.App. 149, 160 , 458 A.2d 820, 826 (1983).

The 1939 enactment went on to provide circumstances, including the lack of probable cause, under which property that had been seized under a warrant should be restored to the person from whom it was taken. Section 551 in relevant part today reads: (a) Whenever it be made to appear to any judge ... by written application signed and sworn to by the applicant, accompanied by an affidavits] containing facts within the personal knowledge of the affiant[s], that there is proba ⁶⁷⁸ ble cause, the basis of which shall be set forth in said affidavits], 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, or police officer authorizing him to search ... and to seize____ If, at any time, on application to a judge ... it appears ... that there is no probable cause for believing the existence of the grounds on which the warrant was issued ... said judge must cause it to be restored to the person from whom it was taken. In the discretion of the judge, an oral motion made in open court may be received at any time making application for the return of seized property if the application for return is based on the grounds ... that there is no probable cause for believing the existence of the grounds on which the warrant was issued____ If the judge grants the oral motion, the order of the court shall be in writing and a copy of the order shall be sent to the State’s Attorney. If the judge rejects the proffer on an 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 seizing the property and it is subsequently ordered that the property be restored to the person from whom it was taken, court costs shall not be assessed against the petitioner.

After Wolf v. Colorado, 338 U.S. 25 , 69 S.Ct. 1359 , 93 L.Ed. 1782 (1949) had held that the fourteenth amendment did not require the states to adopt an exclusionary rule applicable to evidence derived from an illegal search and seizure, the Legislature amended § 551 by Ch. 74 of the Acts of 1958. As discussed, infra, the introductory form of that legislation would have provided an exclusionary rule ⁶⁷⁹ which was unlimited with respect to the nature of the offense involved. The General Assembly struck that proposed exclusionary rule from the bill before enactment. The 1961 landmark decision in Mapp v. Ohio, supra, overruled Wolf and extended to the states the requirement that evidence obtained by an unconstitutional search and seizure must be excluded from criminal prosecutions.

As a result of Mapp the Maryland Legislature repealed the Bouse Act by Ch. 2 of the Acts of the First Special Session of 1973, as part of the project to revise the Maryland Code. 1 This chronological review brings into sharp focus the initial hurdles which the Chus must clear for their argument to prevail. 2 The Chus have brought a civil action against Anne Arundel County to regain possession of their records. The county’s defense is that the seizure was made pursuant to a search warrant based on probable cause. Faced with the investigator’s affidavit which contains ample information to constitute probable cause, the Chus find themselves in need of a legal scalpel to excise masses of information from the body of the affidavit. But § 551 was enacted before the federal constitutional exclusionary rule to deter illegal searches and seizures became applicable to the states.

At the time of enactment the Maryland statutorily based exclusionary rule applied only to criminal trials of persons charged with misdemeanors. 3 When the Chus ⁶⁸⁰ moved for the return of property under § 551 the Bouse Act had long since been repealed but the United States Constitution had been interpreted to require an exclusionary rule for illegal searches and seizures applicable to the states. Within these constraints the proposition urged by the Chus is that § 551 produces the desired result by expanding to accommodate evolving fourth amendment law, including Mapp and its progeny. We disagree. The process of statutory construction cannot be stretched to accommodate the result sought here.

Section 551 contains no clear textual support for the Chus’ position. They seem to rest their incorporation of federal law into § 551 on the statute’s provision that a lack of probable cause is one instance warranting the return of seized property. It is true that in § 551 cases this Court has looked to decisions applying the fourth amendment to determine whether information presented in support of a search warrant qualitatively measures up to probable cause.* ** 4 That use of fourth and fourteenth amendment cases, however, is not what is proposed here. We are being asked to import into the concept of probable cause in § 551, as a matter of Maryland statutory law, the federally created exclusionary rule in order to redact information from an affidavit supporting a warrant prior to determining probable cause in an action for the return of seized property. ⁶⁸¹ The Chus present no historical evidence that a legislative purpose of § 551 was to absorb any later adopted federal exclusionary rule.

Section 551 clearly did not embrace the then-existing rule of Weeks which this Court had rejected in Meisinger and which the General Assembly in 1929 had accepted only as to misdemeanors. Had the law been otherwise prior to Mapp , § 551, in and of itself, would have