delivered the opinion of the Court.
It is the realistic judgment of state and national con
The appellant, William Brewer, may well have been the victim of one of the mistakes to which the system is sometimes heir. On the early evening of Friday, June 9, 1967, he was arrested at his home on Joppa Road in the Perry Hall section of Baltimore County. He was charged with having received a stolen tractor and with the cognate offenses of grand larceny and breaking and entering. He was transported first to the Benson Police Barracks and then to the Harford County Police Station. He remained in custody for between two and two and one half hours before posting bond to guarantee his reappearance. He set out immediately to demonstrate his innocence. At a meeting on June 22, 1967, with the state’s attorney for Harford County, the sheriff, and the deputy sheriff who had been the investigating officer, the appellant, accompanied by his wife and his lawyer, produced not only documentary evidence and the dealer who had sold him the tractor, but two other witnesses to establish that he had been the innocent and bona fide purchaser of the tractor. The state’s attorney was persuaded that the charges were unfounded and dismissed the warrants.
To the appellant, criminal vindication was but partial solace. Having been inconvenienced, embarrassed and chagrined at the clutch of circumstance into which he had been thrust, he sued in the Circuit Court for Harford County those he believed to be his tormentors, the appellees Dominic J. Mele and Raymond Leard, for both false imprisonment and malicious prosecution.
As to the first count (charging false imprisonment and false arrest), separate motions for summary judgment were ultimately granted in favor of both Mele and Leard. No appeal has been taken from the trial court’s decision to dismiss the charges of false imprisonment. Mele had presented, under oath, his probable cause to a duly constituted committing magistrate who issued proper warrants of arrest.
1
The arrest having been effected by valid legal process, it is fundamental that an action for the sub-species false arrest of the species false imprisonment will not lie.
Safeway Stores, Inc. v. Barrack,
The necessary elements of a case for malicious prosecution of a criminal charge are well established. There must be: (a) a criminal proceeding instituted or continued by the defendant against the plaintiff, (b) termination of the proceeding in favor of the accused, (c) absence of probable cause for the proceeding, and (d) malice, or a primary purpose in instituting the proceeding other than that of bringing an offender to justice.
Banks v. Montgomery Ward & Co.,
The case reaches us with Mele and Leard not simply
In reviewing the granting of the summary judgment itself, we are concerned with whether the trial judge was legally correct. In reviewing the denial of a motion to strike a summary judgment, on the other hand, we are concerned only with whether the trial judge abused his discretion.
Clarke Baridon v. Union Co.,
We shall consider first the granting of summary judgment in favor of the arresting officer, Leard, upon its merits. Maryland Rule 610 d 1 is clear, providing in pertinent part:
“The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine dispute as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
The purpose of this rule is to determine .whether trial is necessary when there is no genuine dispute as to a material fact.
Greenwell v. American Guaranty Corporation,
“The limitations on summary judgment procedure are too well known to require elaboration. It is not a substitute for trial but a hearing to determine whether a trial is necessary, * * * when there is no genuine controversy, * * *. The purpose of the hearing is not to determine disputed facts, but to determine whether such issues exist. * * *.” (citations omitted)
Judge Close had before him, when he granted the summary judgment in favor of Leard, the depositions of the appellant, of Deputy Sheriff Mele, and of the state’s attorney for Harford County. As to the role played by Leard, there was no genuine dispute of any fact, let alone
Deputy Sheriff Mele, on the other hand, did initiate a criminal proceeding in swearing out the warrants of arrest. 52 Am. Jur. 2d,
Malicious Prosecution,
§ 21; Prosser,
Torts
(4th ed.), pp. 836-837. With the dismissal of the warrants by the state’s attorney under the circumstances of this case, there was further a termination of the criminal proceeding in favor of the appellant.
Fitzwater v. Tasker,
Although it is by no means certain that Deputy Sheriff Mele did not, as a threshold matter, enjoy governmental
“It is clear that policemen are ‘public officials,’ Wilkerson v. Baltimore County,218 Md. 271 (1958), Harris v. Mayor and City Council of Baltimore,151 Md. 11 (1926), and that when they are within the scope of their law enforcement function they are clearly acting in a discretionary capacity. Eliason, supra. But, as Judge Barnes suggested, we have added the qualification that when acting in a discretionary capacity public officials, to enjoy immunity, must act without malice. Duncan, supra at 104; Eliason, supra at 356; Carr v. Watkins,227 Md. 578 , 585 (1962) ; Carder v. Steiner,225 Md. 271 , 274 (1961).”262 Md. at 347 .
We have never been called upon to decide that quality of malice or the means of its proof necessary to forestall governmental immunity. If it be some affirmative showing of ill will, improper motivation, or evil purpose,
5
the undisputed facts might well reveal its total absence prior to trial and permit the assertion of the qualified immunity. If, on the other hand, it is the mere inference of malice permitted to be drawn from the want of probable cause,
6
then even a qualified immunity could never
As a threshold matter, it is settled that where there is no genuine dispute as to the material facts, the question whether those facts do or do not mount up to probable cause is one of law for the court.
Banks v. Montgomery Ward & Co., supra,
The undisputed facts here were that on May 29, 1967, eleven days before the arrest, Deputy Sheriff Mele traveled to the town of Cardiff in northern Harford County to investigate a breaking and entering and a larceny that had occurred over the immediately preceding weekend at the John M. Dooley Company. The proprietor of that tractor dealership informed Mele that a tractor had been stolen which had a fair market value of $522.35. Mele surveyed the scene and determined that a forced entry had been made through a sliding door in the garage portion of the business establishment. He learned that the stolen tractor was a John Deere Model 60 lawn and garden tractor, with the critical last four digits of its serial number being 4657. He learned that the tractor was brand new, notwithstanding the fact that its brake and clutch assembly had been removed. In short, Mele knew that the felonies of grand larceny and of breaking and entering had been committed.
In the course of the investigation that followed, Mele checked with several dealers in the Harford County area who serviced or offered parts for John Deere tractors.
Mr. Preis, it developed, had apparently had two contacts with the stolen tractor. He recalled that, several days before the inquiry made by Trooper Leard, an individual known to him only as “Bill” had been in looking for clutch and brake parts for a John Deere tractor. He did know that this individual worked out of a garage on Old Joppa Road. He was able to furnish a detailed physical description of the appellant — his “Bill.” Then after being alerted by Trooper Leard several days later to be on the lookout for a particular tractor, Mr. Preis discovered that an acquaintance of his by the name of Kramer had, in the intervening several days, come into possession of that tractor.
Armed with that knowledge, Deputy Sheriff Mele went to Kramer’s home and found the missing tractor. He learned from him that Kramer had received the tractor as well as $125 in cash in a trade for a 1963 Chevrolet with one “Bill Brewer” who lived in the Perry Hall area. He learned that it was when Kramer had trouble with missing parts and went to the John Deere dealer in Kingsville that Kramer had discovered from Mr. Preis that his new tractor might, indeed, be stolen. Kramer turned over to Deputy Sheriff Mele a receipt given to him by Brewer, which established the identity of the appellant and the date of the Kramer-Brewer transaction as June 5, 1967. In short, the investigative trail now led unmistakably back to the appellant; Mele could place
We have long and consistently held that exclusive possession of recently stolen goods, absent a satisfactory explanation, permits the drawing of an inference of fact strong enough to sustain a conviction that the possessor was the thief,
Cason v. State,
The appellant does not gainsay the accrual of adequate probable cause by Mele in the first instance, but seeks rather to impose upon the investigator, as a condition to action, a second phase obligation not simply to “accentuate the positive” but to “eliminate the negative.” He raises the questions, at what stage the existence of a “satisfactory explanation” must be sought out and by whom? Our own prior decisions in
Dorsey v. Winters,
As to the extent of the initial responsibility, at least so far as a law enforcement officer is concerned, we agree with the reasoning of
Knapp v. Chicago, B. & Q. R. Co.,
“True, an explanation is admissible, but the prosecutor is not bound to seek it unless the circumstances are such as to call for an investigation.”85 N. W. 770 .
Once the investigating policeman has crossed the threshold of probable cause, we will not place upon him the additional burden of seeking out and negating possible explanations of possession, lest he press charges at his own peril. Chief Judge Hammond in
Anglin, supra,
The explanations that did fill the air, moreover, served only to darken the cloud of suspicion enveloping the appellant. Conflicting stories were attributed to him as to how he came by the stolen tractor. The first version of the acquisition came to the attention of Deputy Sheriff Mele via Kramer via a neighbor of Kramer’s by the name of DePasquale.
12
It was DePasquale who first
As developments after the fact revealed, the appellant did, to be sure, have a creditable and innocent explanation for the possession of the tractor; but that subsequent revelation does not retrospectively alter the picture facing the deputy sheriff at his moment of decision. Probable cause will be measured by the circumstances as they reasonably appeared to Deputy Sheriff Mele at the time when he initiated action. It is not dependent upon the actual state of the case as it may turn out upon subsequent investigation.
Jordan v. James & Holstrom Piano Co.,
We cannot say that Judge Close abused his discretion in refusing to strike the summary judgment where the appellant has advanced no indication of a meritorious defense to the motion or other equitable circumstance persuasive of the fact that justice was thwarted by the granting of the judgment. We think, moreover, that the lesser propriety of not having abused discretion is subsumed in the greater propriety of having been correct in the granting of the judgment itself. In the context of this defense to the action, as opposed to the consultation with counsel defense, the appellant does not even suggest a genuine dispute of material fact. The failure of the appellant to show a want of probable cause, as a matter of law, is simply the obverse of the showing that Deputy Sheriff Mele did, as a matter of law, have probable cause to arrest the appellant.
Totally apart from his possession of actual probable cause, Deputy Sheriff Mele was additionally fortified by having conferred with and relied upon the state’s attorney. In his deposition, the state’s attorney made it clear that Mele had conferred with him on two separate occasions and had discussed the case with him in detail for between ten and fifteen minutes on each of those occasions. In their first meeting, Mele set out for the state’s attorney all of the facts unearthed by him as to the corpus delicti. He informed the state’s attorney that he had traced the tractor to Kramer and, through Kramer,
“A. ... I viewed it as a straight simple case of breaking and entering, larceny and/or receiving stolen goods, for the reason he said; there was a breaking and entry and a tractor of such and such a serial number was stolen. There was no question of that, and it wound up in the possession of a man named Kramer who had gotten it from Mr. Brewer, and Mr. Brewer had told two people two different stories of where he had acquired the property. Based on that, I made my recommendation to the officer.
Q. And what was your recommendation to Deputy Mele after having those facts disclosed to you?
A. I told him to take out a warrant charging him with the routine charge of breaking, entry, grand larceny and receiving stolen goods.”
Although the deputy sheriff is not entitled to rely upon the submission of his probable cause to the magistrate and upon the independent evaluation made by that magistrate,
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he is fully protected by having sought and re
In respect of this defense to the action, we cannot say that Judge Close abused his discretion in declining to strike the summary judgment already granted. The appellant gave no indication of a meritorious defense to the motion or other equitable circumstance requiring the trial court to entertain a reasonable doubt that justice had been done. Again the lesser propriety is subsumed in the greater. Even as to the merits of the summary judgment, we think Judge Close was correct. He ruled that there was no genuine dispute as to any material fact. The appellant’s desperate effort to get the case to the jury relied upon bald speculation. In recounting his interview with the state’s attorney on June 22, 1967, the appellant gives a somewhat impressionistic recollection
“. . . I said if they had approached me before this all happened, I could have straightened this damned thing out and he said well, Mr. Brewer, you was approached, and I said no, darned it, I wasn’t, and he turned around and said to Mele — he said did you talk with this man, and he said no, and he said why, and he said he wasn’t home, and he said something about possession and I said actually, I didn’t have possession when I was locked up, arrested, and he said yes, you did, and I said no, sir, I didn’t, so he turned around and asked Mele again, he said did he have possession of it, and he said no, he didn’t, . . .”
The question whether the appellant at the time of his arrest still had the actual possession of the stolen tractor or had recently relinquished it is immaterial. Even were there a genuine dispute, it would not be of a material fact. The appellant postulates further, on the basis of the state’s attorney’s other question to Mele, that the state’s attorney had directed Mele to interview the appellant and that Mele had apparently failed to carry out that direction and had apparently misled the state’s attorney. Only the misleading would be material. In view of the unequivocal testimony of the state’s attorney, however, belying that speculation, we concur with Judge Close that there was no genuine dispute as to any material fact. We think further that, upon those undisputed facts, he was correct in ruling, as a matter of law, that Mele had probable cause by virtue of his counseling with and reliance upon the state’s attorney.
Judgments affirmed; costs to be paid by appellant.
Notes
. In Fourth Amendment terms, the “neutral and detached magistrate” was interposed between “the policeman and his quarry.” Johnson v. United States,
. The explicit disclaimer is prompted by the tendency of some commentators to read too much by the way of implication into mere silence. See Annotation, “Civil liability of law enforcement officers for malicious prosecution,”
“In most of the cases cited to the statement above, no express reference to the applicability or inapplicability of the doctrine of judicial immunity was made. However, it is submitted that where the outcome of a malicious prosecution suit against an officer was made by the court to depend upon the presence or absence of such common elements of the tort as malice or want of probable cause, the conclusion is justified that the ease stands, at least by implication, for the proposition that the doctrine of judicial immunity does not extend to officers of the kind there involved.”
. Judge Henderson, for the Court, said in Eliason v. Funk,
“It has been held that judges have an absolute privilege from suits arising out of their judicial acts. . . . Prosecutors in judicial hearings are afforded the same privilege. . . . This privilege has been extended to minor tribunals and to officers exercising discretionary or quasi-judicial functions, with a trend toward an equally absolute application, particularly in the federal courts. . . . Some state courts have adopted a broad application. . . . But a number of states extend the privilege only to actions taken in good faith, indicating that malicious actions would not be protected. . . .
The Maryland eases seem to indicate that discretionary action will be protected only in the absence of malice.” (citations omitted)233 Md. at 356 .
. See Prosser, Torts (4th ed.), pp. 837-838; 52 Am.Jur.2d, Malicious Prosecution, Part IV, “Parties Liable or Exempt from Liability,” Sect. 68, “Law Enforcement Officers”; Annotation, “Civil liability of law enforcement officers for malicious prosecution,”
. That is, the quality of malice suggested as necessary to dissipate the governmental immunity of a prison warden and a prison guard in Carder v. Steiner,
. Banks v. Montgomery Ward and Co., supra; Safeway Stores, Inc. v. Barrack, supra; Kennedy v. Crouch,
. That every technical defect in probable cause stemming from a policeman’s misreading of an Aguilar v. Texas or a Spinelli v. United States could permit the inference of malice sufficient to carry a malicious prosecution case to the jury is the ineluctable consequence of such a position. Such broad potential for mischief is hardly compatible with the undergirding juridical philosophy that, “Suits for malicious prosecution are viewed with disfavor in law and are to be carefully guarded against.” North Point Construction Co. v. Sagner,
. The rule might well be that, with respect to such a class of persons, the occupational mission itself, with its manifest motivation, dispels the otherwise permissible inference.
. That policy is well enunciated in White v. Towers,
“When the duty to investigate crime and to institute criminal proceedings is lodged with any public officer, it is for the best interests of the community as a whole that he be protected from harassment in the performance of that duty. The efficient functioning of our system of law enforcement is dependent largely upon the investigation of crime and the accusation of offenders by properly trained officers. A breakdown of this system at the investigative or accusatory level would wreak untold harm. ‘Criminal law_ does not enforce itself. It demands the assistance of valid evidence and fearless officials to put it in execution. Because of their tendency to obstruct the administration of justice, it is the policy of the law to discourage actions for malicious prosecution’. ... To rule otherwise would place every honest law enforcement officer under an unbearable handicap and would redound to the detriment of the body politic. ‘The public welfare requires that this choice (whether or not to institute proceedings) shall be free of all fear of personal liability.’ ”235 P. 2d at 211 .
. See Safeway Stores v. Barrack, supra,
. See also Bowen v. Tascoe,
. The acceptability of hearsay, even thus compounded, in the accumulation of probable cause is fundamental. Hopkins & Terry v. State,
. A hard look at the continuing vitality of this proposition may have to be on the not-too-distant legal horizon. A significant part of the classic rationale for nonreliance upon the review by the
The impact upon this aspect of tort law from the Constitutional principle that in evaluating probable cause, the very submission of the issue to the “neutral and detached magistrate” will, in the otherwise “doubtful or marginal case,” tip the scales preferentially in favor of probable cause, United States v. Ventresca,
. See also Annotation, “Reliance on advice of prosecuting attorney as defense to malicious prosecution action,”