Roshchin v. State

KEHOE, J. Appellants, Vadim Roshchin and his employer, American Sedan Service, Inc. (“American”), assert that the State of Maryland, through three of its agencies, the Maryland Transportation Authority (“MTA”), the Maryland Transportation ¹⁷² Authority Police (“MTAP”), and the Maryland Aviation Administration (“MAA”) (collectively, the “State”), orchestrated Roshchin’s arrest and the temporary confiscation of a limousine owned by American. The basis for these actions was Roshchin’s violation of a regulation requiring him to display a permit allowing him to pick up passengers from the Baltimore-Washington International Thurgood Marshall Airport (the “Airport”). According to appellants, the sanction for violating the regulation is a fine. Therefore, they assert, Roshchin’s arrest and the confiscation of the vehicle were unlawful and tortious.

Appellants filed suit against the State asserting various common law and constitutional torts. The Circuit Court for Anne Arundel County granted the State’s motion for summary judgment and appellants present four questions for our review, which we have consolidated and rephrased: I. Did the circuit court err in treating the relevant Airport regulation as valid and enforceable on the date of Rosh-chin’s arrest?

II

Did the circuit court err in granting summary judgment in favor of the State on all claims alleged by Roshchin and American? For the reasons that follow, we will affirm the judgment of the circuit court in part, reverse it in part, and remand this case for further proceedings. BACKGROUND The Incident American operates a limousine service that regularly picks up arriving passengers (who have previously contracted for its services) from the Airport. In order to do so lawfully, a limousine service must obtain a permit from the MAA and the permit must be displayed in the vehicle while the pick-up is made.

On the evening of February 28, 2010, Roshchin arrived at BWI to pick up two customers who had previously arranged ¹⁷³ transportation from the airport. Roshchin was operating a limousine owned by American, his employer. American had obtained a valid permit for the type of vehicle operated by Roshchin but, on this particular night, Roshchin had left the permit in another of American’s cars. Also on that night, unbeknownst to Roshchin, MTAP was conducting an enforcement initiative designed to curtail unauthorized commercial transportation operations at the airport.

This initiative included the enforcement of COMAR § 11.03.01.05-1(A)(1), which is the regulation that requires display of the permit. 1 While Roshchin was waiting for his passengers, he was approached by MTAP Detective Kevin Ermer. Roshchin had neither a permit displayed on his vehicle nor physical possession of such a permit. Detective Ermer, in accordance with a MTAP protocol, proceeded to arrest Roshchin for violating the regulation and impounded the vehicle. Roshchin was held in a holding cell at the airport for several hours until his case was called before a District Court Commissioner.

After the hearing, Roshchin was released on his personal recognizance. The Anne Arundel County State’s Attorney’s Office subsequently entered a nolle prosequi to the charge. The vehicle Roshchin had been operating at the time of his arrest remained in the impound lot for about an hour and a half before being retrieved by Vladimir Segel, the owner of American. The Circuit Court Proceedings In February, 2012, Roshchin and American filed suit against the State, alleging in their complaint three counts arising out of Roshchin’s arrest (false arrest, false imprisonment, and a violation of the rights guaranteed by Article 24 of the Declaration of Rights), and two counts arising out of the impoundment of the vehicle Roshchin was operating (trespass to chattels and tortious interference with business relations). ¹⁷⁴ The parties eventually filed competing motions for summary judgment.

In their motion, Roshchin and American asserted that a partial judgment should be granted in their favor because “a violation of COMAR [§] 11.03.01.05-1(A)(1) is not an incarcerable offense pursuant to the unambiguous language of the enabling statutes.” Instead, according to Roshchin and American, Detective Ermer was authorized only to issue a citation to Roshchin for his violation of the regulation. The State contended that judgment in its favor was appropriate as to the counts arising out of Roshchin’s arrest because Detective Ermer’s actions were supported by probable cause, were legally justified, and did not otherwise violate Roshchin’s Article 24 rights. Similarly, the State maintained that judgment in its favor was appropriate as to the counts arising out of the impoundment of American’s vehicle because Roshchin, the driver, had been properly arrested and impoundment of the vehicle was thereafter necessary in order to preserve public safety at the airport terminal. In response to the State’s motion, Roshchin and American argued that there was a genuine dispute of material fact as to whether COMAR § 11.03.01.05-1(A)(1) was an enforceable regulation on the night of Roshchin’s arrest because the record evidence was unclear as to whether the regulation had been “posted conspicuously in a public place” at BWI pursuant to the relevant statutory requirements.

After a hearing on the motions, the circuit court issued a written opinion and order granting summary judgment in favor of the State on all counts. With respect to the counts raised by Roshchin, the circuit court concluded that, while Detective Ermer could have issued a citation to Roshchin for violating COMAR § 11.03.01.05-1(A)(1), the relevant statutory and regulatory provisions did not restrict the officer’s authority to place Roshchin under arrest. Turning to the undisputed facts, the court concluded that Detective Ermer’s arrest of Roshchin was proper because: one, Roshchin’s violation of the regulation constituted a misdemeanor under the relevant pro ¹⁷⁵ visions of the Transportation Article; and, two, Roshchin committed the offense in the presence of the Detective. With respect to the counts raised by American, the circuit court concluded that judgment was appropriate on the trespass to chattels count because the State had “the authority to impound [American’s] vehicle in order to permit the uninterrupted flow of traffic and decrease the risk of any accidents occurring at BWI,” and on the count for tortious interference with business relations because Roshchin “was lawfully arrested by Detective Ermer, and American’s vehicle was lawfully impounded.” This appeal followed.

Analysis We review the circuit court’s grant of summary judgment de novo, Harford County v. Saks Fifth Ave. Distrib. Co., 399 Md. 73, 82 , 923 A.2d 1 (2007), determining, first, whether there exists a dispute as to any material fact and, second, whether the court was legally correct. Lombardi v. Montgomery County, 108 Md.App. 695, 710 , 673 A.2d 762 (1996).

In making this determination, we consider the facts in the record “ ‘in the light most favorable to the non-moving part[y].’ ” Georgia-Pacific Corp. v. Benjamin, 394 Md. 59, 74 , 904 A.2d 511 (2006) (quoting Sadler v. Dimensions Healthcare Corp., 378 Md. 509, 533-34 , 836 A.2d 655 (2003)). “Even if it appears that the relevant facts are undisputed, if those facts are susceptible to inferences supporting the position of the party opposing summary judgment, then a grant of summary judgment is improper.” Id. The “purpose of the summary judgment procedure is not to try the case or to decide the factual disputes, but to decide whether there is an issue of fact, which is sufficiently material to be tried.” Id. I. The Relevant Statutory and Regulatory Provisions The contentions raised by Roshchin and American lie at the intersection of three provisions — two statutory and one regulatory — which we set out in pertinent part. The regulatory provision is COMAR § 11.03.01.05-1.

It provides: ¹⁷⁶ A. General Provisions (1) Except [as otherwise provided], a commercial vehicle or courtesy vehicle may not conduct business at [BWI] Airport unless a permit is first obtained from the Administration and displayed as provided in these regulations. (2) * * * (3) A permit shall be displayed on an area of the vehicle designated by the Administration. C. Prohibited Acts. While conducting commercial activity under a permit, a permit holder or its authorized operator may not: * * * (5) Fail to display a currently valid permit on an area of the vehicle designated by the Administration There is no dispute that Roshchin violated this provision by failing to possess and display a valid permit on the night of his arrest.

COMAR § 11.03.01.05-1 was adopted pursuant to Md.Code (1977, 2008 Repl.Vol.) § 5-426 of the Transportation Article (“TA”). That section states: (a) Regulations Authorized. — After holding a public hearing, the governing body of any publicly owned airport in this State may adopt regulations for: (3) Safety at the airport; (B) Posting. — All regulations adopted under this section shall be posted conspicuously in a public place at the airport. TA § 5-427(b) is also important. It provides that, “Any person who violates any ... regulation adopted and posted under § 5-426 of this subtitle is guilty of a misdemeanor and on conviction is subject to a fine not exceeding $500.” ¹⁷⁷ Roshchin asserts that COMAR § 11.03.01.05-1 was not valid and enforceable on the night of his arrest because it had not been properly posted pursuant to TA §§ 5-426(b) and 5-427(b).

Roshchin also identifies several reasons as to why, in his view, these subsections did not authorize Detective Ermer to arrest him for violating COMAR § 11.03.01.05-1. We will address these contentions in Parts II and III. We conclude that the circuit court erred in granting judgment in favor of the State on Roshchin’s and American’s common law tort claims. However, we will affirm the court’s grant of summary judgment on Roshchin’s claim based upon the State’s alleged violation of Article 24.

As we will explain, the existence of probable cause for the arrest in this case explains the disparate results. Roshchin’s claim that his rights protected by Article 24 were violated by his arrest fails because Detective Ermer had probable cause to believe that Roshchin had committed a misdemeanor in his presence. The Supreme Court has held that, in terms of arrests, the Fourth Amendment’s protection extends only to arrests made without probable cause. Maryland courts have construed analogous state constitutional protections as providing the same protections as the Fourth Amendment and we hold that, because there was probable cause, Roshchin’s rights guaranteed by Article 24 were not violated.

The false arrest/false imprisonment claims are a different matter. A defendant may be liable for false arrest or false imprisonment if the arrest, or the continued detention, is made without legal authority. An arrest made without probable cause is without legal authority. But, as this case illustrates, under certain circumstances, an arrest can be without legal authority even if the arresting officer has probable cause.

Detective Ermer was without legal authority to arrest Roshchin because a statute limited his otherwise extant discretion to do so. 2 ¹⁷⁸ II. The Posting Requirement Roshehin asserts that summary judgment was inappropriate because there exists a dispute of fact as to whether notice of COMAR § 11.03.01.05-1 was posted at BWI in accordance with TA § 5-426(b) on the night of his arrest. In support, Roshehin points to his own affidavit, as well as to the deposition and/or affidavit testimony of Mr. Segel (the owner of American), Detective Ermer (the arresting officer), Sergeant Urban (another MTAP officer), and Stephen Moe (the Manager of Transportation and Parking for MAA). These witnesses averred, in essence, that none of them observed any postings related to COMAR § 11.03.01.05-1 while at the airport on or around the night in question.

We agree with Roshehin that, based on the testimony of these witnesses, sufficient inferences exist to establish a dispute of fact as to whether COMAR § 11.03.01.05-1 was properly posted at BWI on the night of his arrest. The State argues that TA § 5-426(b)’s posting requirement is not a prerequisite to the regulation’s enforceability, and in support of this proposition cites to Columbia Citizens’ Ass’n v. Montgomery County, 98 Md.App. 695, 701 , 635 A.2d 30 (1994) (“The lack of any sanction in the statute or provision tends to militate towards a finding that the statute or provision is directory.”); and Harvey v. State, 51 Md.App. 113, 116 , 441 A.2d 1094 (1982) (same). The State is correct that § 5-426 itself does not state whether a failure to post affects the enforceability of a regulation promulgated under its aegis. However, TA § 5-427(b) states (emphasis added): ¹⁷⁹ § 5-427.

Penalties. (a) Parking Regulations. — Any person who violates a parking regulation adopted and posted under § 5-426 of this subtitle is subject to a fine not exceeding $50. A violation of a parking regulation is not a misdemeanor. (b) Rules and Regulations Generally. — Any person who violates any other rule or regulation adopted and posted under § 5-426 of this subtitle is guilty of a misdemeanor and on conviction is subject to a fine not exceeding $500.

The two statutes should be read together. See, e.g., M-NCPPC v. Anderson, 395 Md. 172, 183 , 909 A.2d 694 (2006) (“[W]hen two statutes appear to apply to the same situation, this Court will attempt to give effect to both statutes to the extent that they are reconcilable.” (quotation marks and citations omitted)). When this is done, in our view, the plain language makes it clear that a regulation must be “adopted and posted” before a person can be held responsible for its violation. 3 And, as established above, there exists a dispute of fact as to whether the regulation was properly posted on the night of Roshchin’s arrest. The State also asserts that it is undisputed that Roshchin had actual knowledge of the regulation and that he knew on the night of his arrest that he needed to display the permit on ¹⁸⁰ the vehicle he was operating.

The State cites cases such as United States v. Bichsel, 395 F.3d 1053, 1056 (9th Cir.2005), and United States v. Davis, 339 F.3d 1223 (10th Cir.2003), to support its argument that “the [appellants’] actual notice of the MAA regulations rendered Mr. Roshchin’s arrest valid.” The State’s argument might be persuasive if it were presented in a hypothetical criminal prosecution to counter a contention that the failure to post was a defense. But we are not dealing with that scenario. Appellants do not contest that Roshchin violated the