Doe v. Commander, Wheaton Police Department

Murphy, C. J., delivered the opinion of the Court. The appellant was arrested by a security guard at a Montgomery Ward Department Store in Wheaton, Montgomery County, Maryland on March 21, 1973, and later charged with committing an unnatural and perverted sexual act in violation of Maryland Code (1971 Repl. Vol.) Art. 27, § 554. On July 19, 1973, the State entered a nolle prosequi in. the case, thereby terminating all criminal proceedings-against the appellant.

On August 27, 1973, the appellant filed a “Petition to Expunge Arrest Records” in the Circuit Court for Montgomery County, in equity, naming Montgomery County and State and County law enforcement officers as defendants. Appellant alleged in the petition that the criminal charges filed against him were “unfounded” and had been dismissed “after a complete explanation” of the circumstances; that appellant had no criminal record “save this erroneously placed charge”; that appellant was employed in a position of trust and confidence at Georgetown University Law Center; that because of his criminal arrest record, he will be irreparably damaged “in that his opportunities for future employment will be adversely affected, and his constitutional right to privacy infringed upon”; that a suit for money damages could not compensate him “for the damage he has suffered and will continue to suffer in the future and cannot correct the harm done . . .”; and that his criminal arrest record “creates a permanent scar on . . . [his] totally exemplary, hardworking and law-abiding mode of living in the community.” The petition contained a prayer for the following equitable relief: (1) An order restraining further dissemination of appellant’s criminal arrest records; (2) The return to him of all such original records and copies; (3) An accounting in writing for all copies not ²⁶⁴ returned and securing of these copies for return to appellant; (4) Removal of all references to appellant in any computer data banks; (5) Notification to the court of all recipients of computer information; (6) The placing of certain explanations of the circumstances of the case in court files; (7) An order directing the defendants to seek return or removal of materials relating to appellant from FBI files and,computer data banks; (8) A certification by defendants of compliance with the court’s order; and (9) Any other additional relief the court deemed just and proper. The defendants Brown, Watkins, 1 and Montgomery County demurred to the petition, claiming that it contained insufficient facts to state a cause of action against them; that a suit for false arrest and malicious prosecution provided appellant with an adequate legal remedy; that absent statutory authority the court was without power to order expungement of arrest records; that appellant did not allege any facts to establish that the arrest and subsequent identification process were improper or invalid; and that the expungement and destruction of validly made arrest records was contrary to public policy and to the need for accurate information of criminal activity regardless of the ultimate disposition of the prosecution. Defendants Kavanaugh and Burch, 2 in a motion raising preliminary objection (Maryland Rule 323), urged the court to dismiss the case for lack of jurisdiction over the subject matter of the petition; they claimed that the only statutory authority for expungement of arrest records is contained in § 292 of Article 27; that it is limited in application to certain cases involving controlled dangerous substances, and that in the absence of any other ²⁶⁵ statute making it compulsory for the police to expunge or return records of an arrested person upon his release without being tried or convicted, a bill in equity to compel such action would not lie.

In a brief order granting both the demurrer (without leave to amend) and the motion raising preliminary objection, the court said: “It is apparent that the legislature intended to grant the Courts authority to expunge arrest records in one specific instance, to-wit, drug abusers who are first offenders, (Article 27, Section 292, Annotated Code of Maryland). While the powers of an Equity Court are quite general, an Equity Court may not create a right where none exists. Accordingly, the relief sought by the plaintiff must, at this juncture, be denied. . . .” From this order, appellant filed an appeal to the Court of Special Appeals. Because it was of importance that the question presented be promptly decided, we granted certiorari on our own motion prior to argument and decision in the Court of Special Appeals.

See Maryland Code (1974) Courts and Judicial Proceedings Article, § 12-201. Appellant argues on appeal, as he did below, that an equity court in Maryland is empowered to order expungement or limit dissemination of criminal arrest records in instances where there is no evidence of any kind that the arrested person committed any criminal offense. He maintains that the factual averments of his petition show an invasion of his constitutional right to privacy — a right recognized by the Supreme Court of the United States in Griswold v. Connecticut, 381 U. S. 479 , 85 S.Ct. 1678 , 14 L.Ed.2d 510 (1965). He asserts that as a person acquitted of criminal conduct, the continuing inclusion of his name among the defendants’ criminal arrest records, in violation of his constitutional right to privacy, causes him irreparable injury, which cannot be compensated by money damages, and that because an equity court will not suffer a wrong without a remedy, the lower court erred in concluding that it ²⁶⁶ lacked subject matter jurisdiction to grant the relief requested in the petition.

The appellant contends that the magnitude and effect of the wrong perpetrated against him is substantial; that present day technology and modern police investigatory procedures have combined to produce a situation in which the arrested individual has a criminal record on file in at least one or more law enforcement centers; that it is widely known that local and state law enforcement agencies forward their data pertaining to arrests to the Federal Bureau of Investigation and that the number of people affected by these practices is staggering; that there is incalculable economic and personal harm to an individual that results if his arrest becomes known to employers, credit agencies or even neighbors; and that notwithstanding the absence of a conviction, the mere record of arrest often works as a serious impediment and basis of discrimination in the search for employment, in securing professional, occupational or other licenses, and in subsequent relations with the police and the courts. Appellant asserts that most employers and employment agencies inquire whether an applicant has been arrested and that an affirmative answer to this question, regardless of whether a conviction resulted, is often sufficient to deny the applicant further consideration, and that where there are two or more, applicants for the same job, those with previous arrest records clearly stand in less favorable position than do other applicants. I. To “expunge” a record, in common parlance, is “to strike out, obliterate, or mark for deletion ... to cause the physical destruction of . . .” Webster’s Third New International Dictionary. Although courts have not been uniform in their usage of the term in cases involving criminal arrest records, it appears that “expungement” at least in a general sense may also consist of the return of the record to the person accused or the sealing or segregation of the record in a ²⁶⁷ secure place to prevent public or private access.

See 57 Op. Att. Gen. 518 (1972); 58 Op. Atty.

Gen. 340 (1973). Cases dealing with the right of an exonerated arrestee to have fingerprints, photographs, or other criminal identification or arrest records expunged or their dissemination restricted are collected in an exhaustive annotation appearing at 46 A.L.R.3d 900 -33 (1972). The cases fall generally into four groups. Some courts reaching the merits of the issue weigh heavily the need for public safety and effective law enforcement and classify the problem as one for the legislature.

Herschel v. Dyra, 365 F. 2d 17 (7th Cir. 1966) cert. denied 385 U. S. 973 , 87 S. Ct. 513 , 17 L.Ed.2d 436 (1966); Sterling v. City of Oakland, 208 Cal.App.2d 1 , 24 Cal. Rptr. 696 (1962); Walker v. Lamb, 254 A. 2d 265 (Del. Ch. 1969), affd 259 A. 2d 663 (Del. Supr. 1969); Kolb v. O’Connor, 14 Ill.App.2d 81 , 142 N.E.2d 818 (1957); Weisberg v. Police Dept. of Lynbrook, 46 Misc. 2d 846 , 260 N.Y.S.2d 554 (1965). 3 For example, in Kolb v. O’Connor, supra, the Illinois court said: “In considering the right of the public we must take into consideration the increasing incidence of crime, particularly crimes of violence and crimes involving sex, as indicated by well publicized statistics, and the fact that the automobile, affording mobility to the criminal, has rendered the detection and identification of criminals more difficult than it has ever been in the history of the ²⁶⁸ world, all of which is particularly true in all of the metropolitan centers of the United States, as is shown by the newspaper reports of unsolved and unsolvable crimes of the last few years.

Interposed against this is the right of the individual to privacy, which in this case would mean that a person who has been arrested, photographed and fingerprinted should have such records of identification destroyed or returned to him. It is true that under our system of jurisprudence no person is guilty of a crime until he has been convicted thereof. However, as is said in an article of Sidney M. DeAngelis, 27 Temple Law Quarterly 441: ‘The extent of the actual harm which may befall the injured citizen, is at most, conjectural. On the other hand, the extent of the possible danger to an effective system of law enforcement is considerable.

The innocent person of today, unfortunately, may be tomorrow’s criminal. The day before some poor soul kills his fellow man, he is an innocent person. The minute possibility that his previously obtained identification records may help to apprehend him and prevent further tragedy is, it is submitted, substantial enough to outweigh the alleged invasion of his right of privacy.’ ” 142 N.E.2d at 822 . A second group of cases would deny traditional expungement relief, i.e., the return, removal, destruction or sealing of records, but would place certain restrictions on dissemination of arrest record information or the contents of such records.

Menard v. Mitchell, 328 F. Supp. 718 (D.D.C. 1971), remanded with instructions, Menard v. Saxbe, 162 U.S. App. D.C. 284 , 498 F. 2d 1017 (1974); Spock v. District of Columbia, 283 A. 2d 14 (D.C. App. 1971); 4 State ex rel. Mavity v. Tyndall, 224 Ind. 364 , 66 N.E.2d 755 (1946); State ²⁶⁹ ex rel. Reed v. Harris, 348 Mo. 426 ,153 S.W.2d-834 (1941). 5 In addition, other cases denying expungement relief suggest that a cause of action might be stated in connection with improper dissemination of arrest records. United States v. Rosen, 343 F. Supp. 804 , (S.D.N.Y. 1972): Sterling v. City of Oakland, supra.

The older cases in which the court restricted the dissemination of criminal arrest records are based on the power of courts of equity to restrain an invasion of the arrestee’s privacy. State ex rel. Mavity v. Tyndall, supra. Cf.

Itzkovitch, v. Whitaker, 115 La. 479 , 39 So. 499 (1905) and 117 La. 708 , 42 So. 228 (1906). Menard, borrowing from language applicable to the constitutional right of privacy, holds: “Where the Government engages in conduct, such as the wide dissemination of arrest records, that clearly invades individual privacy by revealing episodes in a person’s life of doubtful and certainly not determined import, its action cannot be permitted unless a compelling public necessity has been clearly shown.” 328 F. Supp. at 726 . 6 A third group of decisions would permit expungement relief in “extreme circumstances,” e.g., in instances of an arrest without probable cause or in cases of police misconduct. See Sullivan v. Murphy, 156 U.S. App. D.C. 28 , 478 F. 2d 938 (1973) (mass arrests where procedures rendered judicial determination of probable cause impossible); United States v. McLeod, 385 F. 2d 734 (5th Cir. 1967) (arrests made for sole purpose of harassing civil rights ²⁷⁰ workers); Kowall v. United States, 53 F.R.D. 211 (W.D. Mich. 1971) (petitioner’s arrest, conviction and sentence for failure to report for induction were declared invalid); United States v. Kalish, 271 F. Supp. 968 (D.P.R. 1967) (prosecutor’s attempt to keep photographs and fingerprints amounted to a form of spite); Bilick v. Dudley, 356 F. Supp. 945 (S.D.N.Y. 1973) (arrests without probable cause and harassment); Wheeler v. Goodman, 306 F. Supp. 58 (W.D.N.C. 1969), remanded on other grounds, 401 U. S. 987 (1971), affd on remand, 330 F. Supp. 1356 (W.D.N.C. 1971) (extreme misbehavior of police in making arrests without probable cause); Hughes v. Rizzo, 282 F. Supp. 881 (E.D. Pa. 1968) (arrests made for purpose of harassing “hippies”). See also United States v. Rosen, supra, and United States v. Dooley, 364 F. Supp. 75 (E.D. Pa. 1973) for the converse of this position — that expungement relief is not warranted in the typical case.

The basis for the expungement remedy in these cases is that such relief is “necessary and appropriate in order to preserve basic legal rights.” Sullivan v. Murphy, supra, 478 F. 2d at 968 . However, it is not clear whether the relief in most of these cases is predicated solely on the inherent power of an equity court, Wheeler v. Goodman, supra, at 65, or constitutional considerations aside from a constitutional right of privacy, Menard v. Mitchell, 139 U.S. App. D.C. 113, 118-19 , 430 F. 2d 486, 491-92 (1970). Finally, there are those cases that hold that without regard to legislative action, or to the presence of special circumstances justifying relief, expungement may be ordered. Davidson v. Dill, Colo., 503 P. 2d 157 (1972); Eddy v. Moore, 5 Wash.

App. 334 , 487 P. 2d 211 (1971). These cases say: “We believe the right of an individual, absent a compelling showing of