Humbert v. O'Malley

MARLOW HUMBERT, Plaintiff, v. MARTIN O'MALLEY, et al., Defendants.

CIVIL NO.: WDQ-11-0440

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND, NORTHERN DIVISION

Dated: March 25, 2014

MEMORANDUM OPINION

Marlow Humbert sued several police officers and others¹ for constitutional violations under 42 U.S.C. § 1983 and state law claims. ECF No. 1. Pending are five police officers' motions for summary judgment and to strike Humbert's response in opposition. ECF Nos. 74, 120. No hearing is necessary. Local Rule 105.6 (D. Md. 2011). For the following reasons, the motionfor summary judgment will be granted in part and denied in part, and the motion to strike will be denied.

I. Background²

A. Report and Investigation of Rape

On April 29 or 30, 2008,³ a woman⁴ told police that she had been raped at her home in Baltimore's Charles Village neighborhood.⁵ See ECF No. 74-2 at 3; Pl. Exs. A at 1, E at 17, I. She was interviewed by Sergeant Jones and Detective Griffin shortly thereafter. See ECF No. 74-2 at 3. The Victim reported that, while walking home from the store, she had observed a man standing on a porch near her home. See id. She walked past the man, opened her front door, turned around, and discovered that he had followed her into her apartment. See id. The man put on a white face mask and black gloves and placed a black handgun toher head. See id. He demanded money, but she told him she had no money. See id. The man then pushed her onto a nearby couch and raped her. See id. He told her that he had a condom on, but she did not remember him stopping to put on the condom. See id. He then ordered her to go into the basement and took her cell phone. See id. However, when she told him she had a young son and needed the phone to call someone to pick him up, the man apologized and left the phone in the home. See id. He then left through the front door. See id.

The Victim described her assailant as a fairly well-spoken black man in his early to mid-30s, five-foot-seven to five-foot-nine inches tall,⁶ and wearing a blue T-shirt with a pink logo and tennis shoes.⁷ See id. After taking her statement, Detective Griffin accompanied the Victim to the hospital for a medical examination. See ECF No. 74-2 at 4; Pl. Ex. E at 18. Alaboratory technician searched the Victim's home for physical evidence, but none was recovered. Pl. Ex. K.

Over the next few days, officers interviewed the Victim's neighbors but were unable to locate any witnesses to the crime. See ECF No. 74-2 at 4-5. They reviewed surveillance footage from exterior cameras on a school located across the street from the Victim's home. See id. at 3, 5. Although the cameras captured the Victim walking down the street on the night of the rape, no other "persons of interest were observed prior to seeing the victim or after the incident." See id. at 5. Also, the porch on which the Victim saw the man initially was not visible on the video, and the video moved so that parts of the surveillance area were not shown for minutes at a time. See id. at 3, 5; Pl. Ex. C at 32.

After the attack, the Victim--a trained artist--completed a sketch of her attacker. Pl. Ex. A at 1. The Victim declares that officers told her "they were unsatisfied with the subject matter," and she had to complete a composite with a police sketch artist.⁸ Id. Detectives Smith and Brassell and Sergeant Jones testified that the Police Department would not allow victims to create sketches in lieu of creation of a composite bya police sketch artist. See Pl. Exs. C at 66-69, D at 34, G at 11.

On May 1, 2008, Detective Griffin and Sergeant Jones took the Victim to meet with Detective Brassell, a sketch artist.⁹ ECF No. 74-2 at 5. Detective Brassell completed a composite sketch that was reproduced on flyers which were distributed in the area around the Victim's home. See id. The Victim declares that "the features of [her] assailant from [her] sketch" and her "communications with the sketch artist were not incorporated into the composite sketch." Pl. Ex. A at 1. However, Detective Brassell noted that all sketches are graded by the witness from one to 10, and only sketches graded seven and above are used to identify suspects. See ECF No. 136-8 at 18-22.

On May 5, 2008, Detective Smith met with the Victim and showed her 45 photos of registered sex offenders. See ECF No. 74-2 at 6; Pl. Ex. D at 37-40 & #4.¹⁰ After reviewing the book of photos, the Victim stated that two of the photos resembledher attacker but did not identify either of them as her attacker. See ECF No. 74-2 at 6; Pl. Ex. D at #4, #5. She declares that she told the officers that she needed to see suspects in person and hear their voices to identify her attacker. Pl. Ex. A at 2.

On May 7, 2008, a police officer¹¹ stopped Humbert on the street near the Victim's home and photographed him. See ECF No. 136-10 at 31; Pl. Exs. C at 42, D at #6. After the stop, the officer placed Humbert "on a list of potential suspects due to the similarities between [his] likeness and the composite." See ECF No. 74-5 at 7.

On May 8, 2008, Detectives Smith and Griffin showed the Victim an array of photos¹² which included "photos of men who had been arrested in the area for other offenses[,] those identified from leads from the composite flyer," and Humbert's photo.¹³ ECF Nos. 74-2 at 9, 74-5 at 7. The Victim wrote on Humbert's photo "that's him," see ECF No. 136-7 at 1-2, but her reaction to Humbert's photo is otherwise disputed. The investigative notes, and the testimony of Smith and Griffin, maintain that the Victimsaw Humbert's photo, pointed at it, and said "that's him." See ECF No. 74-2 at 9; Pl. Exs. D at 48 & #6, E at 24. The notes and Detective Griffin also state that the Victim became emotional when she saw the photo, but the officers encouraged her to review the rest of the photographs, and the Victim again affirmed that the pictured man was her attacker. See ECF No. 74-2 at 9; Pl. Ex. E at 34-35. However, the Victim declares that she saw Humbert's photo, said that "might" be him, and told the officers that she wanted to see "all the people who might have been my attacker in person and to hear their voices." Pl. Ex. A at 2. She declares that she was "made to sign something, and despite my protests, was assured that it was just procedure." Id. She also declares that the officers told her that no arrests would be made until she saw the suspects in person and heard their voices. Id. Detectives Smith and Griffin testified that they did not remember the Victim requesting to see the suspect in person or to hear his voice.¹⁴ Pl. Exs. D at 44, E at 24.

B. Humbert's Arrest

On May 9, 2008, Detective Smith applied for an arrest warrant for Humbert.¹⁵ ECF No. 74-4 at 4-5. The warrant application summarized the Victim's description of the rape and noted that, during the investigation, "the victim completed a sketch of the suspect [that] was disseminated throughout the community." Id. at 5. The application then stated that the sketch resulted in "[s]everal leads . . . one of which [led] to Marlow Humbert." Id. His photograph was then shown to the Victim, "along with several other similar photographs, when the victim positively identified him as her attacker."¹⁶ Id. Based on this application, a judge issued a warrant for Humbert's arrest. Pl. Ex. Q. On May 10, 2008, Officer Larry Smith¹⁷ arrested Humbert. ECF Nos. 74-2 at 10, 74-4 at 1. Detective Merryman interviewed Humbert, who waived his Miranda rights. Pl. Ex. R. Humbert denied any wrongdoing and "ended the interview by stating he had nothing more to say and he was going to get a good lawyer." ECF No. 74-2 at 10-11.

The Victim declares that, after she learned Humbert was arrested, "she called the investigators and again told them that [she] could not identify anyone until [she] was able to see the men in person and hear their voices." Pl. Ex. A at 2. She was told "it was procedure to make arrests absent a witness' identification of a potential suspect." Id.

C. Post-Arrest Investigation

On May 14, 2008, pursuant to a search warrant, officers obtained oral swabs of Humbert's DNA. ECF No. 74-2 at 11. They were submitted to the police crime lab with the request that the lab compare them to DNA evidence recovered from the Victim. Id.

In a report dated May 27, 2008,¹⁸ the Police Department crime lab found the DNA of at least two unknown persons in the Victim's underwear and at least two more on her stockings. Pl.Ex. M. In a report dated June 2, 2008 and addressed to Detective Griffin,¹⁹ "the crime lab excluded [Humbert] as the DNA contributor to the Sample taken from [the Victim]." Id.; ECF No. 74-5 at 8. In a second report dated December 15, 2008 and also addressed to Detective Griffin, Humbert was again excluded as a DNA contributor to the sample taken from the Victim.²⁰ Pl. Ex. N.

Another victim--who had been raped on March 30, 2008 on Bolton Street in Baltimore--had told officers that her attacker used a Trojan Magnum condom in a gold foil wrapper during the rape. See ECF Nos. 74-3 at 3, 74-8 at 1-2. On March 31, 2008, Detective Elkner²¹ discovered a condom wrapper matching that description near the victim's home, and she confirmed that itwas the same type her attacker had used. See ECF Nos. 74-3 at 3, 74-8 at 4; Pl. Ex. C at 36-38. On May 14, 2008, she viewed Humbert's picture in a photo array and said he looked "30%-80%" like her attacker. ECF Nos. 74-5 at 4, 74-8 at 12. In a report dated June 10, 2008, Humbert's DNA was identified on the condom wrapper, along with the DNA of two other unknown individuals. See ECF No. 136-11 at 13-14. Humbert was not charged with this rape²² or the rape of a third victim who also viewed Humbert's picture and said he strongly resembled her attacker. See ECF Nos. 74-5 at 4, 74-8 at 13.

D. Humbert is Charged

Assistant State's Attorney Tan was assigned to prosecute Humbert for the rape of the Victim. ECF No. 74-6 at 1. On June 23, 2008, Humbert was arraigned on one charge of rape and pled not...