Fraternal Order of Police Montgomery County Lodge 35, Inc. v. Manger

DAVIS, J. Appellant John Doe, 1 a sworn officer in the Montgomery County Police Department (MCPD), is facing administrative charges which are to be heard by an alternative administrative hearing board (Board) pursuant to 3-107 of the Law Enforcement Officers’ Bill of Rights (LEOBR). 2 Md.Code, Public Safety § 3-101 through § 3-113. 3 Before the Board convened, Doe filed pre-hearing motions to suppress evidence and to sever the charges. On December 23, 2005, the Board declined to rale on the motions, stating that it lacked authority to interpret constitutional and state statutory provisions. On December 28, 2005, Doe and appellant, Fraternal Order of Police, Montgomery County Lodge 35, Inc. (FOP), brought suit against appellees J. Thomas Manger and the MCPD in the Circuit Court for Montgomery County pursuant to LEOBR § 3-105, seeking to require the Board to consider and rule on Doe’s pre-hearing motions to sever the charges and suppress evidence. In the alternative, appellants requested that the court order that the charges be severed and the evidence suppressed.

The circuit court issued a show cause order on December 28, 2005. On January 10, 2006, appellants filed an amended complaint and, on February 6, 2006, they filed a motion for summary judgment. After hearing argument on April 17, 2006, the ⁴⁸³ motions judge 4 denied the Motion for Summary Judgment, but did not enter judgment. When the parties appeared for trial on the Petition for Show Cause Order on May 25, 2006, the trial judge found that the matter was “moot” because of findings that the motions judge had made at the hearing on the Motion for Summary Judgment.

The trial judge directed the parties to submit an order to the motions judge, which they did. On July 6, 2006, the motions judge issued an order, which was entered on July 13, 2006, denying appellant’s motion for summary judgment and ordering judgment for appellees. Appellants timely appealed to this Court, presenting the following issues for our review: I. Whether the trial judge erred by denying appellants a trial when no judgment had been entered after the motions judge denied their motion for summary judgment.

II

Whether the motions judge and the trial judge denied appellants the right to present evidence by failing to review the evidence they had submitted in support of their motion for summary judgment and by subsequently denying them the opportunity to present evidence at a trial.

III

Whether the motions judge erred by ordering summary judgment for appellees, when the undisputed material facts gave rise to conflicting inferences.

IV

Whether the MCPD violated the Fourth Amendment and Article 26 of the Maryland Declaration of Rights when its officers, in the absence of a warrant or an exception to the warrant requirement, seized Doe’s files from his home. V. Whether the motions judge erred in deciding that Doe voluntarily produced his files, when he gave the files to MCPD officers pursuant to an express order by his commander to produce them from his home immediately and under threat of disciplinary action. ⁴⁸⁴ VI. Whether evidence that the MCPD illegally seized from Doe’s home and evidence derived from the illegally seized evidence is admissible against him at an administrative hearing conducted pursuant to LEOBR § 3-107.

VII

Whether the motions judge erred in failing to order severance of administrative charges against Doe, when those charges were based on seven separate, unrelated incidents which had occurred over a six month period, and each incident involved the arrest of a different individual.

VIII

Whether the MCPD violated Doe’s LEOBR rights when its officers interrogated him about his files. For the reasons that follow, we conclude that a determination of whether the LEOBR was triggered by an investigation was never an issue presented to the trial court, that the recovery of police files from appellant’s residence did not violate Fourth Amendment proscriptions against unreasonable seizures and that the court did not abuse its discretion in refusing the request of appellant’s counsel to present argument on his motion for severance ex parte or to discuss the basis of his motion with the court in private. Accordingly, we shall affirm judgment of the circuit court. FACTUAL BACKGROUND On or about July 18, 2004, the MCPD’s Internal Affairs Division (IAD) received a complaint from a woman whom Doe had arrested in June 2004 for alcohol-related driving offenses and IAD opened a formal investigation.

The crux of the complaint was .that Doe had taken photographs of the defendant’s upper and lower body when he processed her following her arrest. On August 19, 2004, IAD investigators Sergeant Teena Lee and MPO Anthony M. Chuckerel went to the Bethesda District Station to obtain Doe’s case files. Their purpose was to obtain photographs of women that Doe had arrested. After they searched a file cabinet at the station without finding any of Doe’s case files, they assumed that the files were either in Doe’s cruiser or at his home and notified Captain Darryl McSwain, the TAD director.

At Captain ⁴⁸⁵ McSwain’s direction, Commander Betsy Davis, the commander of the Bethesda District, then issued a written “Administrative Order” to Doe, which stated: This is a direct order to produce all case files pertaining to all arrests that you have made in the last twenty[-]four months (August 2002-August 19, 2004) in their entirety to include police reports, photographs, tickets/citations, notes and any file evidence. You are hereby ordered to produce these items immediately, without any delay to myself. Failure to comply with this order may result in disciplinary action against you as a result of failing to obey a direct order which is in violation of Department Rules, Function Code 800, Rule 3A. At approximately 6:30 p.m., Doe’s immediate supervisor, Sergeant Cathleen Lapsley, contacted him on the road and directed him to report to the Bethesda District station.

When he arrived, Sergeant Lapsley, Commander Davis, Sergeant Lee and Officer Chuckerel were waiting for him in the parking lot. They escorted Doe to a conference room where Commander Davis told Doe that IAD was investigating him. She then delivered the written “Administrative Order” to Doe, immediately thereafter reading it out loud and telling Doe that, if he failed to produce the files immediately, he would be charged with failing to obey a lawful direct order. Commander Davis asked Doe where his case files were and was told that they were at his home.

Commander Davis, Sergeant Lapsley and the two IAD detectives then accompanied Doe to the evidence room where he obtained some boxes, after which Commander Davis advised Doe that the case files would have to be retrieved immediately from his house. Commander Davis directed Doe to drive to his house in his cruiser accompanied by Sergeant Lapsley. Commander Davis followed them in her police vehicle and the two IAD detectives followed. Inside his condominium, Doe retrieved the files from a cabinet and, with Sergeant Lapsley’s assistance, boxed them up, carried them outside and counted them.

Sergeant Lee recorded the number of boxes retrieved — three boxes ⁴⁸⁶ which contained a total of 183 case files. After the boxes were placed in Sergeant Lee’s car and a receipt for them was given to Doe by Commander Davis, the IAD detectives left with the files and Sergeant Lapsley told Doe to go back in service. After retrieving the case files, IAD investigators searched the files for evidence of wrongdoing. They examined the file contents and used information in the files to identify and contact women Doe had arrested.

This investigation ultimately resulted in a five-count administrative charge against Doe for which the MCPD is seeking his dismissal. On July 14, 2005, after the investigation concluded, Doe was charged with violating the five administrative rules. These charges emanated from seven arrests that occurred between January 8, 2004 and June 8, 2004 and were based on evidence from the files, as well as on information derived from that evidence. Each of the seven incidents which gave rise to the administrative charges against Doe occurred on a different date between January 8, 2004 and June 8, 2004 and involved the arrest of a different individual at a different location.

According to IAD Officer Chuckerel, none of these defendants was a witness to any of the incidents that gave rise to the administrative charges related to the other defendants. “They were all separate.” 5 Allegation 1, which arose out of Doe’s arrest of subject No.7 on June 8, 2004, accuses Doe of violating department directives in connection with the storage of false identifications cards he had seized. That is the only allegation arising out of this arrest. Allegation 2 accuses Doe of violating department directives by failing to search subject No. 5, subject No. 2, subject No. 4, and subject No. 1 before transporting them following their arrests on March 29, 2004, February 12, 2004, March 20, 2004 and January 8, 2004, respectively. ⁴⁸⁷ Allegation 3 accuses Doe of violating department directives by escorting subject No. 2, subject No. 3, and subject No. 6 to the restroom on February 12, 2004, March 6, 2004 and April 9, 2004, respectively. Allegation 4 accuses Doe of violating the department rule on courtesy by making a rude comment to subject No. 5 on March 29,2004.

Allegation 5 accuses Doe of a variety of inappropriate comments and actions in connection with his arrests of subject No. 2 on February 12, 2004, subject No. 4 on March 20, 2004, subject No. 1 on January 8, 2004, subject No. 3 on March 6, 2004 and subject No. 6 on April 9, 2004. The punishments sought by MCPD were set forth as follows: Allegation # 1: Letter of Reprimand Allegation # 2: Forty (40) Hours Suspension Without Pay Allegation # 3: Eighty (80) Hours Suspension Without Pay Allegation # 4: Letter of Reprimand Allegation # 5: Dismissal. Pursuant to LEOBR § 3-107(a), Doe demanded a hearing before an alternate administrative hearing board. On December 13, 2005, Doe filed two pre-hearing motions with the Board: a motion to sever charges and a motion to suppress evidence.

The MCPD filed an Answer dated December 21, 2005, which argued that the Board lacked authority to interpret the federal and state laws at issue. On December 23, 2005, the Board declined to rule on the motions and remanded them “for submission to an appropriate forum” because “[r]ulings on the Motions would necessarily involve the interpretation of Constitutional and Statutory provisions and are appropriately addressed in advance of the hearing by a State Court of General jurisdiction.” Appellees thereafter filed a Petition for Show Cause Order followed by a Motion for Summary Judgment. The hearing on the motion for summary judgment was held prior to the hearing on the petition for show cause order. ⁴⁸⁸ Just prior to issuing his ruling at the hearing on the motion for summary judgment, the motions judge stated that the only exhibits he had received from the court clerk were the first seven attachments to the complaint. The judge found that Commander Davis’ order to Doe to produce his files was proper, reasonable and not coercive, that Doe’s compliance was voluntary and that the MCPD had probable cause to ask for the information.

Whether the matter should be tried separately or together was determined by the motions court to rest, not upon the competency of the Board, but upon the nature of the administrative charges. After reviewing the administrative charges against Doe, the motions judge opined that there was a prejudicial overlap and the charges, in his opinion, should not be severed because “that very specific overlap” was part of the “overall charge against the officer.” Nevertheless, the judge clarified that this opinion was without prejudice to appellants’ right to raise the severance issue with the Board and left the issue “to the board to sort out.” The court issued the following ruling in denying appellants’ motion for summary judgment. All right, what’s before the [cjourt is to determine whether or not the — it’s actually a motion for summary judgment based on the [appellants’] position that the search was an unconstitutional search and, therefore, the fruits of that search cannot be used against him in an administrative procedure, and that if it is granted that the — not suppressed, that the matters should be tried as seven separate offenses rather than one. The [cjourt has listened carefully to argument.

It’s an interesting issue, but I believe that the action of the department in requesting the case files was a lawful order, that was complied with by the officer in question delivering the records to the officer who had accompanied him inside — one of the Internal Affairs Division officers. And so, therefore, the [c]ourt does not believe that the order was coercive or that the options available to the ⁴⁸⁹ officer were not appreciated one way or the other. It seems clear to me that the officer had the opportunity to do what he wanted to do and, at least, to think about it. It was not an instantaneous decision, but there is some — I do have some reservation in that the directive said, or you may suffer — may suffer administrative sanctions, if you don’t comply.

People take that different ways, but I think the directive was proper. I think it was reasonable and I think that’s the key here, whether this was reasonable or unreasonable, and I think that there was probable cause for the department to ask for the information, and it was delivered, as I take it, voluntarily. So, not having found it to be coercive, I refuse to suppress the search. Secondly, whether the matter should be tried together or separately, I don’t think rests on the competency on the trial board, but rather the nature of the charges.

But, I do find that the charges, as presented, are such that one trial board should hear all of the charges. There is no question in my mind that there’s an overlap that is prejudicial, but it is essentially that very specific overlap that is part of the basis of the overall charge against the officer. So, I*m going to leave that to the board to sort out, but the [e]ourt believes that severance should not be granted. But, I will say that that’s without prejudice to the [appellants], to raise the issue with the board if they feel it’s appropriate to do so. [Appellants’ counsel]: Your Honor, may I ask— THE COURT: Yes. [Appellants’ counsel]: In our briefs and in our motion, we raised, on the severance issue, we did raise that the — that a joinder would impair our ability to defend the charges together and we have not discussed that issue at all.

That was discussed in the brief and in the motion and the — and I would ask the [c]ourt to take a look at that issue because that is yet another prejudice that the courts have recognized. And, preparing separate defenses — there’s no conflict of separate defense in preparing one defense for all these separate charges, it does create a conflict in doing that, and the Court has not addressed that issue. ⁴⁹⁰ THE COURT: Where does that appear, in your initial brief? [Appellants’ counsel]: Yes. * * * THE COURT: Well, you say it’s confounded, but that’s a broad assertion. I don’t understand why the defense would be inconsistent if he — basically, it seems to me that the defense is (A) none of this happened, or (B) it was misunderstood, or (C) it’s a hybrid of some of the above. [Appellants’ counsel]: Your Honor, I would be happy to tell you in chambers how — the details of how our defense would be impaired, but I have no requirement under law to disclose the defense to counsel or in the presence of counsel, and I think that would be prejudicial to our case— THE COURT: I’m not going to take any ex parte in-chamber’s conference— [Appellants’ counsel]: But, I can tell you, as an officer of the court, that it would — there is significant problem for us, and conflicting defenses. THE COURT: Well, I’m going to deny your motion at this point.

I don’t doubt your position as an officer of the court, but that doesn’t necessarily mean that it’s correct in law. So, at this point, you will have to think about what you want to do. So, accordingly, the motion for summary judgment is denied. (Emphasis added.) When the parties appeared for trial on May 25, 2006, the trial judge concluded that the determinations of the motions judge were binding.

The trial judge found that the case was “moot” based on the fact that the motions judge had made findings on the issues. Appellants informed the trial judge that the motions judge did not enter judgment and that they wanted to present a complete factual record because, in their opinion, the motions judge did not have their exhibits prior to denying their motion for summary judgment, and that they ⁴⁹¹ wanted to present additional evidence. Additional facts will be provided as warranted. LEGAL ANALYSIS I SUMMARY JUDGMENT Appellants’ first question for the Court addresses whether the trial court had to entertain appellants’ “Amended Petition for Show Cause Order Under the Law Enforcement Officer’s Bill of Rights.” We have held that, according to Maryland law, the law of the case doctrine applies to decisions that finally dispose of the case.

Warfel v. Brady, 95 Md.App. 1, 6 , 619 A.2d 171 (1993) (quoting Ralkey v. Minn. Mining & Mfg. Co., 63 Md.App. 515, 521 , 492 A.2d 1358 (1985)). “ ‘There is no decision or statute which requires one nisi prius judge to accept as final and conclusive the decisions on the law before trial of another judge or court.’ ” Placido v. Citizens Bank & Trust Co. of Md., 38 Md.App. 33, 45 , 379 A.2d 773 (1977) (quoting Nat’l Liberty Ins. Co. of Am. v. Thrall, 181 Md. 19, 22-23 , 27 A.2d 353 (1942)).

In the instant case, the trial judge had the discretion to consider the matter de novo unless prohibited by statute or rule. Ralkey, 63 Md.App. at 521 , 492 A.2d 1358 (and citations therein). Appellants contend that the trial court’s conclusion that the issues were moot is erroneous because the trial court could have granted relief. Neither appellants nor appellees cite any law to support the proposition that the trial judge was required or not required to adopt the motions judge’s findings as to the issues addressed in the motion for summary judgment.

Although not moot, the motions court’s findings could be adopted by the trial judge. In Ralkey , we held that the trial judge was not required to deny a motion for summary judgment previously brought by the same party and denied in a sister court. Ralkey, 63 Md.App. at 523 , 492 A.2d 1358 . Thus, the trial judge was not required to rule on the issues ⁴⁹² previously argued before the motions judge and did not deny appellants the right to present evidence.

Appellants argue that the motions judge and trial judge denied appellants the right to present evidence because the motions judge denied the motion for summary judgment without having considered documents submitted in support thereof. We agree as to the motions judge. When the motions judge questioned appellees as to the statement of charges that Doe wished to inspect, the following exchange took place: THE COURT: Is that in the record? [Appellants’ counsel]: Your Honor, They are on Exhibit A of [appellants’] motion for summary judgment. THE COURT: Oh, motion for summary judgment— [Appellants’ counsel]: You’ll find them in there.

THE COURT: You know what, I don’t have the attachments. [Appellants’ counsel]: You didn’t get the attachments? THE COURT: No. THE COURT: I have the motion only, and then I have the first seven attachments to the complaint. I assume it’s not in that, I’m looking now. I’d like to see the charging document.

The foregoing exchange indicates that the motions judge could not have considered the evidence presented by appellants before denying the motion for summary judgment. The right to present evidence is essential to fulfill the requirements of the Due Process Clause of the United States Constitution. Jenkins v. McKeithen, 395 U.S. 411, 429 , 89 S.Ct. 1843, 1853 , 23 L.Ed.2d 404 (1969) (citing Morgan v. United States, 304 U.S. 1, 18 , 58 S.Ct. 773, 776 , 82 L.Ed. 1129 (1938); B & O R.R. Co. v. United States, 298 U.S. 349, 368-69 , ⁴⁹³ 56 S.Ct. 797, 807 , 80 L.Ed. 1209 (1936)). Our review of the record reveals that appellants submitted the motion on February 6, 2006, together with attachments.

The record is clear that the attachments were not submitted to the motions judge and, therefore, he could not have considered them before his oral ruling. Although the oral findings, as set forth supra, do not in any respect grant summary judgment to appellees, the motions judge, by his order, granted summary judgment to appellees. A court may grant summary judgment to the non-moving party absent a cross-motion for summary judgment. Cotillo v. Duncan, 172 Md.App. 29, 50 , 912 A.2d 72 (2006).

The order signed by the motions judge on July 6th, and entered July 13, 2006, stated: Upon consideration of the Motion for Summary Judgment of [appellants] and the opposition thereto, it is on this 6th day of July, 2006 hereby ORDERED, that the [appellants’] motion be and the same is hereby DENIED; and it is further ORDERED that judgment be entered for [appellees] in accordance with the [e]ourt’s oral findings on the record on April 17, 2006. (Emphasis added.) Notwithstanding that the motions judge never considered evidence appellants sought to submit on the motion for summary judgment, we are satisfied that the court’s failure should not have been fatal to appellant’s motion. We explain. We review the grant of summary judgment to determine whether the court was legally correct.

Md. Cas. Co. v. Lorkovic, 100 Md.App. 333, 354 , 641 A.2d 924 (1994)(citing Beatty v. Trailmaster Prods., Inc., 330 Md. 726, 737 , 625 A.2d 1005 (1993)). Because we review the court’s grant of summary judgment de novo, we must first decide whether a genuine dispute of material fact exists, de la Puente v. County Comm’rs of Frederick County, 386 Md. 505, 510 , 873 A.2d 366 (2005). “If no such dispute exists, we proceed to review determinations of law[,]” and examine “[t]he facts properly ⁴⁹⁴ [brought] before the court, and any reasonable Inferences that may be drawn from them [] construed in the light most favorable to the non-moving party.” Id. (citations and internal quotations omitted).

Despite the fact that they were moving parties, appellants contend that the inferences to be drawn from the facts were conflicting and, as such, should not have been ruled upon in a summary judgment proceeding, but submitted to the trial court in a full hearing on the merits. While it is true, as appellees assert, that there is a measure of inconsistency in Doe’s initially “moving for summary judgment based on the absence of a dispute of fact that arguing that a dispute in inferences prevents judgment,” we agree with appellees, although to their detriment, that “[their] arguments that follow show that any discrepancy in the inferences from the facts have no bearing on the proper application of the protections of the LEOBR.” We further agree with appellees that “the only issues for this court to consider involving whether the department violated Officer Doe’s rights under the LEOBR based on the request for the files or by combining the charges against the officer for hearing.” And, although we also agree with appellees that “... any alternative inferences from the undisputed facts have no effect on the outcome of the petition for show cause,” we differ in our view as to the legal result which should flow from the undisputed facts and inferences deducible therefrom. Summary judgment is not appropriate where undisputed facts are susceptible to multiple inferences. King v. Bankerd, 303 Md. 98, 111 , 492 A.2d 608 (1985) (Where several inferences may be drawn, summary judgment must be denied and the dispute submitted to the trier of fact).

In a footnote in their brief, regarding their claim that there were no first level material facts in dispute, appellants point out that the motions judge failed to state whether any material facts were in dispute and the factual basis for denying the motion for summary judgment. Because of the court’s failure to so find, they say, it cannot be determined whether the judge regarded ownership of the files as of material fact. Appellants further ⁴⁹⁵ assert that the court erred “by choosing among conflicting inferences in its determination of the ultimate constitutional facts regarding the reasonableness of the seizure, the legality of Davis’ order, the voluntariness of Doe’s compliance and the severance of the administrative charges.” We see it differently- At the outset, the court’s failure to consider evidence submitted by appellants on the motion for summary judgment is of no moment in our analysis, infra. With respect to the purported “conflicting inferences,” the operative word is “material.” In our view, the disposition of the issues at hand do not devolve on any perceived inferences from the first level facts developed at the motions hearing.

More specifically, we discern no disputed facts, constitutional or otherwise, regarding the reasonableness of the seizure, the legality of Davis’ order or the voluntariness of Doe’s compliance. And, we are further unable to discern the asserted conflicting inferences which may be drawn from what appellants denominate as “constitutional facts.” Rather, we are satisfied that the reasonableness of the seizure, the legality of Davis’ order and the voluntariness of Doe’s compliance are legal issues that should have been decided by the motions court, based on the undisputed facts before it. II LEOBR A. The LEOBR was enacted to assure that certain procedural guarantees 6 would be offered to police officers during an ⁴⁹⁶ investigation or interrogation and any subsequent hearing that could lead to disciplinary action, demotion or dismissal. Ocean City Police Dep’t v. Marshall, 158 Md.App. 115, 123 , 854 A.2d 299 (2004); Montgomery County Dep’t of Police v. Lumpkin, 51 Md.App. 557 , 444 A.2d 469 (1982); DiGrazia v. County Executive, 43 Md.App. 580, 584 , 406 A.2d 660 (1979), rev’d on other grounds, 288 Md. 437 , 418 A.2d 1191 (1980).

The procedural safeguards afforded to the officer during the official inquiry into his conduct constitute the heart of the Act’s protections. DiGrazia, 288 Md. at 453 , 418 A.2d 1191 (citing Abbott v. Admin. Hearing Bd., 33 Md.App. 681 , 366 A.2d 756 (1976)). An officer is then entitled to a hearing if the investigation results in a recommendation that the officer be disciplined for his conduct.

Id. (citing Moore v. Town of Fairmount Heights, 285 Md. 578 , 403 A.2d 1252 (1979)). The LEOBR is applicable when a law enforcement officer is under investigation by a law enforcement agency as a result of a disciplinary-type complaint lodged against the officer. Chief, Balt.

County Police Dep’t v. Marchsteiner, 55 Md.App. 108, 116 , 461 A.2d 28 (1983). The Marchsteiner Court held that “[t]here was no interrogation or investigation of any act alleged as a violation of any regulation, ordinance or statute” and, thus, the LEOBR was not applicable. Id. (the counseling sessions did not amount to an interrogation or investigation because they were held only to improve Marchsteiner’s job performance and not as a disciplinary procedure); see also Police Dep’t v. Day, 135 Md.App. 384 , 762 A.2d 981 (2000) (When a town began its efforts to remove Day, the officer was a law enforcement officer as defined by the LEOBR and entitled to the protection of the LEOBR); but see Moore, 285 Md. at 586 , 403 A.2d 1252 (a non-permanent officer was not entitled to a hearing under the LEOBR).

The LEOBR covers an officer under any inquiry into his conduct which could lead to disciplinary sanction. DiGrazia, 288 Md. at 452 , 418 A.2d 1191 . From the inception of a departmental disciplinary proceeding, an officer is entitled ⁴⁹⁷ to the protection of the LEOBR. Comm’r, Balt.

City Police Dep’t. v. Cason, 34 Md.App. 487, 491 , 368 A.2d 1067 (1977). Every inquiry does not necessarily implicate the LEOBR. Calhoun v. Comm’r Balt. City Police Dep’t., 103 Md.App. 660 , 654 A.2d 905 (1995) (annual polygraph examinations not an investigation); Leibe v. Police Dep’t of City of Annapolis, 57 Md.App. 317 , 469 A.2d 1287 (1984) (examination of sick leave records not an investigation).

Discussing the precursor to the LEOBR, the Calhoun Court opined: Although § 728(b) addresses an investigation or an interrogation “which could lead to disciplinary action, demotion or dismissal,” and § 730(a) addresses an investigation or an interrogation that “results in the recommendation of some action such as demotion, dismissal, transfer, loss of pay, reassignment, or similar action which would be considered a punitive measure,” we discern no meaningful difference between the investigation or the interrogation described in these two sections; nor have the cases decided by this Court. See, e.g., Cancelose, 75 Md.App. at 666-67, 542 A.2d 1288 ; Marchsteiner, 55 Md.App. at 116-17 , 461 A.2d 28 ; Town of Westernport v. Duckworth, 49 Md.App. 236, 244-45 , 431 A.2d 709 (1981). Calhoun, 103 Md.App. at 670 n. 9, 654 A.2d 905 . Thus, an investigation must precede the application of the rights pursuant to the LEOBR.

Cancelose v. City of Greenbelt, 75 Md. App. 662 , 542 A.2d 1288 (1988) (holding that “[a]t no time was any investigation or interrogation commenced against appellant,” the LEBOR was inapplicable). The Court of Appeals in, Fraternal Order of Police, Montgomery County Lodge No. 35 v. Mehrling, 343 Md. 155, 181-82 , 680 A.2d 1052 (1996), explained: The LEOBR was enacted in 1974, see 1974 Laws, ch. 722, not for the purpose of defining the scope of the Chiefs substantive authority, but in order to guarantee that police officers are afforded certain procedural safeguards during any investigation and subsequent hearing which could result ⁴⁹⁸ in disciplinary action. See Moats v. City of Hagerstown, 324 Md. 519, 526 , 597 A.2d 972, 975 (1991) (“The language and history of the Law Enforcement Officers’ Bill of Rights demonstrates an intent to establish an exclusive procedural remedy for a police officer in departmental disciplinary matters”); Andrew, 318 Md. at 12, 566 A.2d at 759 (citing Montgomery County Dept. of Police v. Lumpkin, 51 Md. App. 557, 566 , 444 A.2d 469, 473 (1982)) (“In enacting the LEOBR, the legislature sought to guarantee specified procedural safeguards to certain law enforcement officers subject to investigations that might lead to disciplinary actions”); DiGrazia v. County Executive for Montgomery County, 288 Md. 437, 452 , 418 A.2d 1191, 1200 (1980)(“The legislative scheme of the LEOBR is simply this: Any law-enforcement officer covered by the Act is entitled to its protection during any inquiry into his conduct which could lead to the imposition of a disciplinary sanction.”); Calhoun v. Commissioner, Baltimore City Police Department, 103 Md.App. 660, 672 , 654 A.2d 905, 911 (1995) (“[T]he LEOBR is intended to provide a police officer due process protection ... when the officer is investigated and/or interrogated as a result of a disciplinary-type complaint lodged against the officer”); Nichols v. Baltimore Police Department, 53 Md. App. 623, 626 , 455 A.2d 446, 448 (1983) (“The purpose of the LEOBR was to guarantee to those law enforcement officer’s embraced therein procedural safeguards during investigation and hearing of matters concerned with disciplinary actions against the officer”); Abbott v. Administrative Hearing Board, 33 Md.App. 681, 682 , 366 A.2d 756, 757 (1976) (“The purpose of [the LEOBR] was to guarantee that certain procedural safeguards be offered to police officers during any investigation and subsequent hearing which could lead to disciplinary action.... ”). It is with this purpose in mind that we must determine the meaning and scope of § 731.

B. Appellants claim that the LEOBR was applicable at the point when appellant was ordered to report to the station on ⁴⁹⁹ August 19, 2004 and questioned as to the location of the arrest files. As indicated, supra, the LEOBR requires that “[t]he investigation or interrogation by a law enforcement agency of a law enforcement officer for a reason that may lead to disciplinary action, demotion, or dismissal shall be conducted in accordance with this section.” Md.Code Ann., Pub. Safety § 3-104. In response to appellant’s assertion that there had been an interrogation when the investigators asked him as to the whereabouts of his files, the following exchange transpired: THE COURT: When you say he was questioned about his files, at what, specifically, point in time, are you saying he was questioned about the files? [APPELLANTS’ COUNSEL]: He was brought to the station.

THE COURT: Right. [APPELLANTS’ COUNSEL]: Put in the conference room, surrounded by— THE COURT: Does he have — no, don’t give me that. [APPELLANTS’ COUNSEL]: Okay. And, he was asked where are your files— THE COURT: Files, and he said they’re at home. [APPELLANTS’ COUNSEL]: Yeah. THE COURT: All right. That’s what you’re seeking to suppress? [APPELLANTS’ COUNSEL]: Then, they went and got them.

So, you’ve got— THE COURT: Yeah, yeah, okay. Now, whether they have a right, at that point, to request his files is a separate question, but the location of the files, I don’t see anything wrong with them asking where his files are. [APPELLANTS’ COUNSEL]: But, the