Crime Victims Allege Baltimore Police Department Seized (and Destroyed) Their Property Unconstitutionally

In the opinion of Judge Stephanie Gallagher Thursday in Cottman v. Baltimore Police Department:

The following facts are assumed to be true for purposes of adjudicating defendants’ motions. The Amended Complaint alleges that the BPD engages in “a pattern and practice of unconstitutionally searching, seizing, preserving, and destroying the personal property of victims of violent crimes in Baltimore” in violation of the Fourth…and Fourteenth Amendments to the Constitution of the United States….

Plaintiff Faye Cottman alleges that an unknown person shot her and her 11-year-old son at a playground near the Cherry Hill neighborhood in Baltimore on March 14, 2019. While she was in a disoriented state, defendant agent Destinee Macklin seized his jacket, phone, wig and shoes without his consent. At some point thereafter, Defendant Macklin and/or other unnamed BPD agents unlawfully searched Ms. Cottman’s phone without her consent or warrant.

In a subsequent conversation at the hospital, Defendant Macklin told Ms. Cottman that her phone was evidence, even though Ms. Cottman told Defendant Macklin that she had no prior relationship with the shooter and that she had never seen him before. In September 2019, Baltimore City Circuit Court found the shooter not criminally responsible, committed her to a mental institution, and dismissed the case. In May 2020, the accused Macklin was contacted about Ms Cottman’s property. After initially agreeing to return it, the accused Macklin did not respond to further attempts to contact her, and Ms Cottman’s property remains in the custody of the BPD.

On March 20, 2020, plaintiff Amber Spencer attended a barbecue to celebrate her boyfriend’s birthday, where she was shot by an unknown person. While in hospital, defendant officer Jeffrey Converse seized Ms. Spencer’s cell phone, jeans, shirt, shoes and approximately $400 in cash. Someone from the BPD also seized his car key. When Ms Spencer then contacted the defendant Converse, he said he was unable to return his property and that she could get his property back once the State of Maryland and the City of Baltimore entered. in “Phase 3” of COVID-19 recovery. Ms Spencer’s assets remain in the custody of the BPD.

On June 29, 2019, an unknown person shot plaintiff Damon Gray as he walked down the street. Mr. Gray was taken by ambulance to hospital. Once there, defendant officer AnnMarie DiPasquale seized Mr. Gray’s cell phone, a bracelet, a necklace and several items of clothing. This property remains in the custody of the BPD.

On June 9, 2018, Dwayne Cheeks, the son of plaintiff Audrey Carter, was shot and killed. BPD officers seized, inventoried and recorded Mr. Cheeks’ property in the Evidence Control Unit (“ECU”), including a cell phone, watch, driver’s license, debit cards and credit, headphones, a lottery ticket, a key fob with two keys, two separate silver keys, a partially empty pack of cigars, a lighter, 435 US dollars and lots of clothes. Mrs Carter repeatedly contacted defendant officers Ryan O’Connor, Robert Ross and Mark Walrath in an attempt to recover her son’s property. On December 12, 2019, Defendant Walrath advised Ms. Carter that Defendant O’Connor would arrange to return the $435 to her in cash. However, he also informed her that the BPD had destroyed several of the items seized from his son, including: the driver’s license; Visa; independence card; at least two debit/credit cards; listeners; lottery ticket; key ring with two keys; two separate silver keys; and partially empty cigar pack.

Defendant Ross wrote to Ms Carter explaining that, although he did not know why the property was destroyed, defendant agent Scott Dressler had authorized its destruction. Ms Carter emailed several members of the Baltimore City Council asking for help, but received no help. She also contacted ECU and Defendant Dressler directly who told her that a letter had been sent to her deceased son and later to her at the address of an apartment she had not lived in since. five years. However, Mrs. Carter had been in near constant contact with the Defendant O’Connor since her son’s death, and he knew Mrs. Carter’s current address.

Ms Carter filed two formal complaints with the BPD’s Office of Public Integrity, but received identical responses that her allegations had not been substantiated. Ms Carter emailed then City Council Speaker Brandon Scott asking for help. He responded by asking for more information but took no further action to investigate or address the issues raised by Ms Carter, especially since he was sworn in as mayor. On June 2, 2021, the United States Attorney’s Office for the District of Maryland unsealed an indictment naming Mr. Cheeks’ alleged killer. Apart from the money Mr. Cheeks had on him when he was shot, BPD has not returned any of his remaining property to Mrs. Carter….

The court upheld the plaintiffs’ allegation that the police department was responsible for the unconstitutional searches and seizures – and forfeiture of their property without due process – based on theories that they were part of a “persistent practice and spread by municipal officials” of sufficient “duration and frequency”; that the city hadn’t properly trained the police on how to comply with the law here; and that the city had not properly supervised its officers, despite genuine and constructive knowledge of widespread violations of the Fourth Amendment and due process. »

The court also allowed the prosecution of individual officers to proceed, because their behavior (if in fact as alleged) was not protected by qualified immunity:

[T]The amended complaint sets out an allegation that defendant officers Macklin, Converse and DiPasquale each engaged in conduct that violated the plaintiffs’ Fourth Amendment rights. The Amended Complaint sets out an allegation that each of these Defendants participated in the unlawful seizure of non-probative property – in other words, property that there would be no probable reason to believe was evidence of a crime. Defendant Macklin allegedly seized Ms. Cottman’s jacket, phone, wig and shoes, all without a warrant. Similarly, defendant Converse allegedly seized Ms Spencer’s mobile phone, jeans, shirt, shoes and cash, all without a warrant. And defendant DiPasquale allegedly seized Mr. Gray’s phone, bracelet, necklace and clothing without a warrant….

Similarly, the Amended Complaint sets forth a claim against Defendant Dressler to the extent that it alleges that he unlawfully authorized the destruction of the property of Plaintiff Carter’s son. Taking this allegation to be true, she makes a plausible claim that he participated in the violation of plaintiff Carter’s right to due process. The Amended Complaint here alleges that no process was granted. The amended complaint acknowledges that the BPD attempted to send a letter to Ms Carter and her deceased son, although the contents of the letter are unknown. However, he also alleges that BPD officials conceded that Defendant Dressler’s authorization to destroy the property of Ms Carter’s son violated BPD policy. Defendants will have an opportunity to show that Defendant Dressler’s conduct did not arise out of a violation of due process, but the Amended Complaint sufficiently alleges that his authorization constituted participation in such violation….

The question, then, with respect to defendants Macklin, Converse, DiPasquale and Dressler, is whether the rights they allegedly infringed are clearly established. With respect to Fourth Amendment violations, the defendant officers argue that “plaintiffs have no viable Fourth Amendment claim because, in the simplest terms, officers can lawfully seize on or near the person victims of crime clothing and other personal property that may be evidence of [a] crime.” This is undoubtedly true, but the amended complaint alleges that the defendant officers searched and seized property that was not evidence of a crime. It goes without saying that a police officer cannot seize property whose “probative value remains[s] uncertain”, or where there is no “probable cause to associate the property with criminal activity. , “clearly established”.

The same can be said for the Fourteenth Amendment due process guarantee before the government deprives someone of their property….

As the facts in this case evolve, defendants may uncover evidence that muddyes the waters as to whether defendant officers violated clearly established rights, or even violated rights. For example, as the defendant officers suggest in their briefing, the facts could show that the officers had probable cause, and a valid warrant exception, to seize some of the plaintiffs’ assets.

As this case progresses, the defendant officers are free to reiterate their defense of qualified immunity and, if they do, this Court will reassess whether the plaintiffs have done enough to overcome it. So far, however, plaintiffs have alleged that defendants Macklin, Converse, DiPasquale and Dressler personally participated in the violation of basic constitutional rights by making warrantless seizures and destroying non-probative property. They have the right to have the opportunity to prove it….

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