Miller v. Baltimore County Police Department

JAMES R. EYLER, J. This case arises from the dismissal of a “complaint and petition to show cause” filed in the Circuit Court for Baltimore County by Brian Miller, appellant, a corporal in the Baltimore County Police Department, appellee. During the course of an internal investigation of appellant concerning a charge that appellant had disobeyed the lawful order of his superior officer, appellee subpoenaed appellant’s personal cell phone records from the service provider and used the contents of the cell phone records as evidence in its investigation and interrogation of appellant. The investigation resulted in disciplinary action against appellant. After learning that his phone records had been subpoenaed, appellant filed a complaint and petition to show cause against appellee, alleging that appellee’s issuance of the subpoenas violated appellant’s rights under the Law Enforcement Officers’ Bill of Rights (“LEOBR”), Maryland Code (2003, 2007 Supp.) § 3-101, et seq., of the Public Safety Article (“P.S.”).

The circuit court held that the subpoenas were validly issued by appellee under authority granted by the LEOBR and dismissed appellant’s complaint and petition to show cause. On appeal, appellant raises the sole issue of whether the circuit court erred in dismissing his complaint and petition to show cause. Based on our conclusion that appellee did not have the power to issue subpoenas during the course of an ³⁷³ investigation of an internal disciplinary matter, and prior to charging a violation, we shall reverse. Factual Background Appellant is a police officer employed by appellee.

In the spring of 2006, an internal investigation of appellant was initiated, regarding an incident that occurred on March 27, 2006. As a result of the internal investigation, disciplinary action was taken against appellant for disobeying a lawful order of his superior officer. The disciplinary action was recorded in a “reprimand and disciplinary action report,” dated February 26, 2007. Disciplined officers, such as appellant, have a right to have the charges reviewed by a hearing board.

In that event, the disciplinary action report serves as the charging document. The facts relating to the investigation, as reported in the February 26, 2007 “reprimand and disciplinary action report,” are as follows. On or about December 5, 2005, appellant’s superior officer, Lieutenant Kevin Green, consulted appellant about fraternizing with civilians while on duty, instructed appellant that any such conduct by appellant should stop immediately, and that if it did not, appellant would be taken off of the midnight shift. On or about March 27, 2006, while appellant was on duty, Lieutenant Green observed appellant and a female named Joy Wagner meet at a 7-Eleven convenience store located at 8507 Loch Raven Boulevard, Towson, Maryland 21286.

Lieutenant Green observed appellant and Ms. Wagner drive their respective vehicles to the rear of the Silaom Church located at 8513 Loch Raven Boulevard, Towson, Maryland 21286. Lieutenant Green observed appellant’s patrol car in the parking lot behind the church and approached appellant and Ms. Wagner. Lieutenant Green observed appellant leaning into a dark colored sport utility vehicle that was occupied by a “white female with blond hair;” both appellant and the white female were smiling and giggling; and as Lieutenant Green approached the two subjects, appellant appeared surprised and apprehensive. ³⁷⁴ During the course of the internal investigation, appellee issued subpoenas in order to retrieve appellant’s personal cell phone records from Célico Partnership DBA Verizon Wireless (“Verizon”). The first subpoena was served on Verizon, by facsimile, on May 9, 2006, and contained what purported to be the signature of Major John Krach, as “Hearing Board Chairman.” The first subpoena ordered production of the records of incoming and outgoing calls for appellant’s cell phone between January 1, 2006 and March 28, 2006.

The second subpoena was served on Verizon, by facsimile, on July 25, 2006, and contained what purported to be the signature of Major Joseph E. Burris, as “Hearing Board Chairman.” The second subpoena ordered production of the records of incoming and outgoing calls for appellant’s cell phone between July 1, 2006 and July 24, 2006. Both subpoenas expressly purported to have been issued under the authority of P.S. § 3-107(d)(1), and both stated that failure to obey the subpoena “may result in a finding of contempt of court by the Circuit Court of Baltimore County.” Verizon complied with the subpoenas without complaint and produced appellant’s cell phone records. On October 11, 2006, appellant was notified that he was under investigation regarding the March 27, 2006 incident. On October 18, 2006, appellee’s representative interviewed and questioned appellant about Lieutenant Green’s sighting of appellant at the 7-Eleven and Silaom Church on March 27, 2006, and about the cell phone records.

This is when appellant first learned that his cell phone records had been subpoenaed. On February 26, 2007, appellant’s precinct commander, in a reprimand and disciplinary action report, notified appellant of a disciplinary violation, to wit, disobeying the lawful order of a superior officer on March 27, 2006, by fraternizing with Ms. Wagner while on duty. The reprimand and disciplinary action report, signed by the precinct commander, stated that appellant’s personal cell phone records revealed that appellant and Ms. Wagner had had a series of telephone conversations prior to their March 27, 2006 meeting at the 7-Eleven. The report ³⁷⁵ stated that the record of these telephone conversations indicated that the meeting “was not coincidental,” as appellant had purportedly asserted during questioning following the incident, and that the phone records corroborated Lieutenant Green’s allegation that appellant, while on duty, was fraternizing with a civilian.

On March 28, 2007, appellant requested that the matter be reviewed by a hearing board. On November 28, 2006, after the issuance of the subpoenas and prior to notification to appellant of disciplinary action, appellant filed a complaint and petition to show cause in circuit court, alleging that appellee had violated appellant’s rights under the LEOBR because appellee did not have authority to issue subpoenas during its internal investigation of the March 27, 2006 incident. Appellant sought an order requiring appellee to return the originals and all copies of documents that appellee received from the issued subpoenas, that appellee be precluded from using any information obtained from the subpoenas, and that any questions asked in reference to the phone records in interviews with appellant be stricken from the investigation. The complaint was filed pursuant to P.S. § 3-105, which permits law enforcement officers who are denied rights under the LEOBR to file in circuit court a petition for an order directing the law enforcement agency to show cause why the rights should not be granted.

On December 4, 2006, the circuit court ordered appellee to show cause on or before December 27, 2006 why appellant’s requested relief should not be granted. On December 19, 2006, appellee filed a response to appellant’s complaint and petition to show cause. On April 9, 2007, the circuit court issued a memorandum opinion and order dismissing appellant’s complaint and petition to show cause. In its memorandum opinion, the circuit court noted that P.S. § 3-104 does not place any restrictions on the method of investigation, and then held: [T]he statutory scheme [under the LEOBR] allows for a law enforcement agency to investigate and discipline “errant” ³⁷⁶ officers, and [the law enforcement agency] should have available to it the standard investigatory techniques, including the authority to subpoena, to be able to verify and track the movements, locations and activities of officers by the use of cell phone records.

Appellant then appealed to this Court. 1 Discussion The issue before us is whether appellee had the power to issue two subpoenas to Verizon to produce appellant’s personal cell phone records during its internal investigation of appellant and prior to placing charges against him. Appellant contends that appellee did not have the power to issue subpoenas, and that in issuing the subpoenas and using the cell phone records during its interrogation of appellant, appellee violated appellant’s rights under the LEOBR. Appellee disagrees and contends the subpoenas were validly issued under the LEOBR and appellant’s rights under the LEOBR were not violated. I. Police Department’s Power to Issue Subpoenas It is generally recognized that courts and legislatures have inherent power to compel the production of witnesses for the purpose of testifying and the production of documents, subject to current laws, rules and regulations regulating that power.

See Green v. United States, 356 U.S. 165, 169-70 , 78 S.Ct. 632 , 2 L.Ed.2d 672 (1958) (explaining that at English common law, disobedience of a writ under the King’s seal was treated as a contempt, that English courts used the King’s seal to enforce their own process, and that under the Judiciary Act of 1789 federal courts were granted those powers possessed at common law by English courts), overruled on other grounds by Bloom v. Illinois, 391 U.S. 194 , 88 S.Ct. 1477 , 20 L.Ed.2d 522 (1968); Pearson v. State, 28 Md.App. 464, 480 , 347 A.2d 239 (1975) (explaining that Maryland Code (2006 Repl.Vol., 2007 ³⁷⁷ Supp.) § l-202(a) of the Courts & Judicial Proceedings Article “recognizes the inherent power of a court to punish for contempt and to compel compliance with its commands” and that such power must be exercised in compliance with the Maryland Rules). See also Quinn v. United States, 349 U.S. 155, 161 , 75 S.Ct. 668 , 99 L.Ed. 964 (1955) (defining the limitations on U.S. Congressional powers to compel information, explaining “[i]t cannot be used to inquire into private affairs unrelated to a valid legislative purpose. Nor does it extend to an area in which Congress is forbidden to legislate.” (footnote omitted)). With respect to the power of courts to compel testimonial information, Wigmore on Evidence explains: Inherently and primarily, the power belongs to the judiciary, because the application of the law to the facts in litigation requires a finding of the facts, and the finding cannot be made without investigation, and the necessity of investigation imports the power to compel answers and make disclosures of every sort.

The power of the judiciary is frequently described in a statute or court rule, but no question of inherent power can ordinarily arise. 8 Wigmore on Evidence § 2195, at 78 (McNaughton rev.,1961); see also Brown v. United States, 359 U.S. 41, 50-51 , 79 S.Ct. 539 , 3 L.Ed.2d 609 (1959) (holding district court’s sentence of 15 months imprisonment for contempt for failure to make disclosures to federal grand jury was not an abuse of discretion, and explaining Rule 42 of the Federal Rules of Criminal Procedure authorizing punishment for contempt was “no innovation” and “simply makes ‘more explicit’ the long-settled usages of law ... ”), overruled on other grounds by Harris v. United States, 382 U.S. 162 , 86 S.Ct. 352 , 15 L.Ed.2d 240 (1965). With respect to the power of legislatures to compel testimonial information, Wigmore explains: In actual legislative practice, power to secure needed information by such means has long been treated as an attribute ³⁷⁸ of the power to legislate. It was so regarded in the British Parliament and in the Colonial Legislatures before the American Revolution, and a like view has prevailed and been carried into effect in both Houses of Congress and in most of the State Legislatures.... We must assume, for present purposes, that neither House will be disposed to exert the power beyond its proper bounds, or without due regard to the rights of witnesses.

But if, contrary to this assumption, controlling limitations or restrictions are disregarded.... [A] witness rightfully may refuse to answer where the bounds of the power are exceeded or the questions are not pertinent to the matter under inquiry. Wigmore on Evidence § 2195, at 83-84 (quoting McGrain v. Daugherty, 273 U.S. 135, 161, 175-76 , 47 S.Ct. 319 , 71 L.Ed. 580 (1927)); see also Quinn, 349 U.S. at 160-61 , 75 S.Ct. 668 (explaining “[t]here can be no doubt as to the power of Congress ... to investigate matters and conditions relating to contemplated legislation,” and that “[w]ithout the power to investigate-including of course the authority to compel testimony, ... Congress could be seriously handicapped in its efforts to exercise its constitutional function wisely and effectively.”) With respect to executive power to compel testimonial information, Wigmore explains: That the executive of the state has a limited inherent power, comparable to that of the legislature, to employ testimonial compulsion for aiding the executive purposes, ought not to be doubted. But the exercise of the power has rarely been attempted, and the legitimate scope of its inquiries would be difficult to define.

Wigmore on Evidence § 2195, at 87. There are no reported cases in Maryland recognizing the executive branch’s inherent power to compel testimonial information. Administrative agencies, in Maryland, have power to subpoena information but only through the express statutory grant of such power by the General Assembly. See Banach v. ³⁷⁹ State of Md. Comm’n on Human Relations, 277 Md. 502, 506 , 356 A.2d 242 (1976) (defining a threefold test for determining the validity of a subpoena issued by an administrative agency; the first step being that the inquiry is authorized by statute); see also State of Md. Comm’n on Human Relations v. Balt.

County, 46 Md.App. 45, 52-54 , 415 A.2d 856 (1980) (applying the Banach threefold test for determining the validity of an administrative subpoena and analyzing whether an agency’s investigative inquiry was authorized by statute). In Maryland, generally speaking, there are two types of agencies that have been granted broad statutory subpoena power: (1) regulatory commissions and boards that regulate for the public good, including but certainly not limited to the Maryland Commission on Human Relations, the Maryland Home Improvement Commission, and boards that regulate professions; and (2) State agencies delegated with multiple responsibilities of regulation, licensing, and administration of programs, including but certainly not limited to the Department of Health and Mental Hygiene and the Department of Labor, Licensing and Regulation. These two types of agencies are typically granted subpoena power that expressly extends to investigations of matters relevant to the duties of the agency. See, e.g., Banach, 277 Md. at 512-13 , 356 A.2d 242 (holding Maryland Commission on Human Relations possesses statutory authority to issue a subpoena duces tecum in connection with preliminary investigations regarding complaints of discriminatory practices in employment); Dr. K v. State Bd. of Physician Quality Assurance, 98 Md.App. 103, 109 , 111 n. 3, 632 A.2d 453 (1993) (explaining the investigatory power of the State Board of Physician Quality Assurance under Maryland Code (1957,1991 Repl.Vol., 1993 Supp.) § 14-401, et seq., of the Health Occupations Article, which includes the power to issue subpoenas during investigations).

A police department does not have inherent subpoena power, either in the context of civil investigations, such as employee disciplinary matters, or criminal investigations. See generally Sara Sun Beale et al., Grand Jury Law and Prac ³⁸⁰ tice § 6:1, at 6-3 (2d. ed.2005) (explaining that in “most jurisdictions, police investigations are conducted without the benefit of the subpoena power,” and noting that “the absence of that authority does not significantly impair the effectiveness of the investigation” for crimes such as murder, rape, robbery, and assault). 2 This case does not involve a regulatory commission or board regulating for the public good, or an agency delegated multiple responsibilities to administer a government program. Instead, this case concerns an employer-employee disciplinary action within a police department. While we have not conducted an extensive search, the grant of statutory subpoena power, to any agency, for the purpose of conducting an investigation in the context of an employee disciplinary matter is much less apparent than in the situations described above.

Having found no basis for any subpoena power in appellee in the context of investigating an employee disciplinary matter, aside from a statutory grant of such power, and, after review, having found no statutory grant outside the LEOBR, our analysis of appellee’s power to issue subpoenas depends on our interpretation of the LEOBR.

II

The Law Enforcement Officers’ Bill of Rights Maryland’s Law Enforcement Officers’ Bill of Rights (LEOBR) was enacted with the purpose “to guarantee that police officers are afforded certain procedural safeguards during any investigation and subsequent hearing which could result in disciplinary action.” Fraternal Order of Police v. Mehrling, 343 Md. 155, 181 , 680 A.2d 1052 (1996); see also Moats v. City of Hagerstown, 324 Md. 519, 526 , 597 A.2d 972 (1991) (“The language and history of the Law Enforcement ³⁸¹ Officers’ Bill of Rights demonstrates an intent to establish an exclusive procedural remedy for a police officer in departmental disciplinary matters.”). The law was enacted in 1974, several years after two Supreme Court cases, Garrity v. New Jersey, 385 U.S. 493 , 87 S.Ct. 616 , 17 L.Ed.2d 562 (1967), and Gardner v. Broderick, 392 U.S. 273 , 88 S.Ct. 1913 , 20 L.Ed.2d 1082 (1968), provided law enforcement officers with procedural protections under the Fifth Amendment privilege against self-incrimination and the Fourteenth Amendment due process clause of the U.S. Constitution. See Garrity, 385 U.S. at 497-98 , 87 S.Ct. 616 (holding that when police officers under investigation were given the choice either to incriminate themselves or to forfeit their jobs for refusing to incriminate themselves, and officers chose to make confessions, the confessions were coerced, and the Fourteenth Amendment due process clause prohibited their use in subsequent criminal proceedings); Gardner, 392 U.S. at 278-79 , 88 S.Ct. 1913 (holding New York city statute providing for discharge of police officers who refused to waive immunity from prosecution violated the Fifth Amendment privilege against self-incrimination, made applicable to the states through the Fourteenth Amendment due process clause, and a police officer could not be discharged for refusing to waive immunity when he appeared before the grand jury investigating conduct of police officers). Following Garrity and Gardner , and in light of continuing abuses of police officers’ privilege against self incrimination, members of Congress, between 1970 and 1977, unsuccessfully attempted to enact a federal law enforcement officers’ bill of rights.

See Byron L. Warnken, The Law Enforcement Officers’ Privilege Against Compelled Self-Incrimination, 16 U. Balt. L.Rev. 452, 458 (1987). The unsuccessful attempts served as an impetus for state statutes providing law enforcement officers’ bills of rights, however, and in 1974, Maryland became the first state to enact such a law. Id. at 458, 492.

Subpoena Powers under the LEOBR The threefold test for determining the validity of a subpoena issued by an administrative agency is: “Whether the ³⁸² inquiry is authorized by statute, the information sought is relevant to the inquiry, and the demand is not too indefinite or overbroad.” Banach, 277 Md. at 506 , 356 A.2d 242 (citing Okla. Press Publ’g Co. v. Walling, 327 U.S. 186, 208 , 66 S.Ct. 494 , 90 L.Ed. 614 (1946)). The issue in this case requires analysis of the first step only, whether the provisions of the LEOBR authorized appellee to subpoena appellant’s cell phone records during its preliminary investigation of the March 27, 2006 incident and prior to the filing of a charge of a disciplinary violation against appellant. The basic principles of statutory construction, in the context of the LEOBR, were stated succinctly by the Court of Appeals in Blondell v. Baltimore City Police Department: In construing the LEOBR provisions at issue in this case, we apply the paradigm of statutory construction developed in numerous decisions of this Court.

As we have often stated, the cardinal rule of statutory construction is to ascertain and effectuate the legislative intention. The primary indicator of the Legislature’s intent is the language of the statute. We interpret statutes to give every word effect, avoiding constructions that render any portion of the language superfluous or redundant. In addition, we construe the statute as a whole, interpreting each provision of the statute in the context of the entire statutory scheme.

If the statutory language, read in its entirety, is clear and unambiguous, and comports with the Legislature’s purpose, we need not inquire further to discern the statute’s meaning. 341 Md. 680, 690-91 , 672 A.2d 639 (1996) (internal quotations and citations omitted). Appellant contends that P.S. § 3-104 (relating to the investigation of a law enforcement officer) does not grant subpoena power, and the fact that subpoena power is expressly granted in a different provision of the statute, P.S. § 3-107 (relating to a hearing before a hearing board), is an indication of the General Assembly’s intent to not grant subpoena power for purposes of the pre-charge investigation. In reply, appellee ³⁸³ contends that P.S. § 3-104 contemplates a thorough investigation, that subpoena power is implicit in the process of investigation, and therefore, subpoena power should be implied under P.S. § 3-104. Additionally, appellee contends that the language of P.S. § 3-107 should be read to mean that subpoena power granted to the hearing board extends to the precharge investigation.

Thus, the question presented is twofold: first, whether there is an implied grant of subpoena power under P.S. § 3-104 during the pre-charge investigation of police officers, and second, whether the subpoena power expressly granted to the hearing board under P.S. § 3-107 extends to the pre-charge investigation. First, looking at the language of the LEOBR, P.S. § 3-104 sets forth an extensive statutory scheme governing the conduct of investigations and interrogations of police officers. P.S. § 3-104(b) determines who the investigating or interrogating officer shall be; subsection (c) sets forth the requirements of a complaint in which police brutality is alleged; subsection (d) provides notice requirements and identifies certain disclosures that must be made to an officer under investigation; subsection (e) identifies certain disclosures that must be made to officers under arrest; subsection (f) provides for the time of day that an interrogation shall be conducted; subsection (g) provides the location of the interrogation; subsection (h) provides how the interrogation shall be conducted, including how many interrogating officers may ask questions during interrogation, and the length of interrogations; subsection (i) prohibits threats of transfer, dismissal, or disciplinary action against an officer under interrogation; subsection (j) provides that an officer under interrogation has a right to have counsel or another representative present during interrogation, and the officer’s counsel or representative has a right to