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

In Judge Stephanie Gallagher’s Thursday opinion Cottman against Baltimore Police Dep’t:

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

Plaintiff Faye Cottman alleged that someone shot Faye and her 11 year-old son on March 14, 2019, near Baltimore’s Cherry Hill neighborhood. In disorientation, Plaintiff Faye Cottman was seized by Defendant officer Destinee Macklin, who took her jacket and phone. The phone was searched by Defendant Macklin, and/or unnamed BPD officers without Ms. Cottman consenting or getting a warrant.

Following the conversation, Macklin informed Ms. Cottman her phone was evidence. Ms. Cottman had told Macklin she didn’t know Macklin and that the shooter had never met her before. Baltimore City Circuit Court ruled that the shooter wasn’t criminally responsible. It committed the victim to a psychiatric facility and closed the case. In May 2020, Ms. Cottman was reached out to Defendant Macklin regarding her property. After initially agreeing that the property would be returned, Defendant Macklin failed to respond to any further contact attempts. The property of Ms. Cottman is still in BPD custody.

Plaintiff Amber Spencer was at a barbecue to mark her boyfriend’s 20th birthday. A stranger shot and killed her. Jeffrey Converse, the Defendant, took Ms. Spencer’s phone, jeans and shirt as well as her shoes and $400 cash. The key to Ms. Spencer’s car was also taken by someone from the BPD. Ms. Spencer later spoke to Defendant Converse and he said that he couldn’t return her property. He also stated that the City of Baltimore and the State of Maryland would enter “Phase 3”, which is the COVID-19 recovery phase. Ms. Spencer’s property is still in BPD custody.

A stranger shot Plaintiff Damon Gray as he was going down the street on June 29, 2019. Gray was then taken by ambulance to the hospital. After arriving at the hospital, AnnMarie DiPasquale, the Defendant, took Mr. Gray’s phone, bracelet, necklace and various articles of clothing. This property remains under the control of BPD.

On June 9, 2018, Dwayne Cheeks—Plaintiff Audrey Carter’s son—was shot and killed. BPD officers seized, inventoried and logged Mr. Cheeks property in the Evidence Control Unit (“ECU”) including a cell telephone, a watch and a driver’s license. In an attempt to recover her son’s property, Ms. Carter reached out repeatedly to the Defendant Officers Ryan O’Connor and Robert Ross. Ms. Carter received a call from Defendant Walrath, on 12/12/2019. He informed her that he would make arrangements for the return of $435 in cash. He also told her that several items taken from her son by the BPD were destroyed, such as the driver’s licence, Visa card, independence card, at least two debit/credit card, lottery ticket, key holder, two keys, two silver keys, and partially empty packs of cigars.

Ms. Carter received a letter from Defendant Ross explaining to her that even though he was not sure why the property had been destroyed, Scott Dressler had authorized it. Ms. Carter reached out to several Baltimore City Council members asking for their assistance but was not assisted. The ECU and Defendant Dressler also informed Ms. Carter that they had sent a letter to her dead son. Later, the letter was sent to her at an apartment address she hadn’t been using for five years. However, Ms. Carter knew the current address of Defendant O’Connor and had been in constant contact with him since her son’s passing.

Ms. Carter made two complaints to the BPD’s Public Integrity Bureau, but was given identical responses that said her claims were not supported. Ms. Carter reached out to Brandon Scott, the then-City Council president for support. Although he requested more information, Scott did not take further steps to address or investigate any of the questions Ms. Carter raised. He was sworn into office on June 2, 2021 as the Mayor. The United States Attorney’s Office for the District of Maryland sealed an indictment that named Mr. Cheeks’s killer on June 2, 2021. Aside from the cash Mr. Cheeks had on him when he was shot, BPD has not returned any of what remains of his property to Ms. Carter….

The court allowed plaintiffs’ claim that the Police Department was liable for the unconstitutional searches and seizures—and for the taking of their property without due process—on the theories that they were part of a “persistent and widespread practice of municipal officials” of a sufficient “duration and frequency”; that the city had failed to properly train police officers about how to comply with the law here; and that the city had failed to properly supervise its officers, despite having Current and constructive knowledge regarding widespread Fourth Amendment violations and due process violations.”

Because their conduct (if in fact it was as alleged), wasn’t protected by qualified immunity, the court allowed individual claims to proceed.

[T]The Amended Complaint asserts that Officer Defendants Macklin and Converse engaged in conduct violating Plaintiffs’ Fourth Amendment rights. The Amended Complaint states a claim that each of those Defendants participated in unlawfully seizing non-evidentiary property—in other words, property for which there was allegedly no probable cause to believe that it was evidence of a crime. Macklin, the Defendant, is accused of taking Ms. Cottman’s jacket, shoes, phone, wig and boots without any warrant. Similarly, Defendant Converse allegedly seized Ms. Spencer’s cell phone, jeans, shirt, shoes, and cash—again, all without a warrant. And Defendant DiPasquale allegedly seized Mr. Gray’s phone, bracelet, necklace, and clothes without a warrant….

The Amended Complaint also states a claim against defendant Dressler, insofar that it alleges that Dressler unlawfully authorized destruction of Plaintiff Carter’s property. It is plausible that he was involved in violating Plaintiff Carter’s right to due procedure, if that allegation is true. This is what the Amended Complaint alleges. no processThe Amended Complaint was granted. Even though it is not known what the contents are, the Amended Complaint states that the BPD tried to mail a letter Ms. Carter’s deceased son. It also claims that BPD officials admitted that defendant Dressler authorized the destruction of Ms. Carter’s son’s property. This is contrary to BPD policy. Defendants will have the opportunity to show that Defendant Dressler’s conduct did not arise to a due process violation, but the Amended Complaint sufficiently alleges that his authorization constituted participation in such a violation….

Concerning Defendants Macklin Converse, DiPasquale and Dressler the issue is whether their rights were clearly violated. According to Officer Defendants, there is no Fourth Amendment violation. This is because officers can seize clothing, personal property, and evidence from victims of crimes, either in their immediate vicinity or on the ground. [a] crime.” It is also true that this Amended Complaint states that officers seized the property of the Defendants. It is notThe evidence is evidence of crime. The rule is that property of “probative” value cannot be taken by a police officer.[s]Indeterminate” refers to when the “probable cause not to associate the property or criminal activity with it.” The Fourth Amendment’s requirements that officers have probable cause to seize property—whether with a warrant or based on an exception to the warrant requirement—is, therefore, “clearly established.”

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

As this case progresses, defendants may discover evidence that confuses the waters about whether or not the officers violated rights. As the Officer Defendants suggested in their briefings, there might be evidence that shows the officers had probable cause to seize property of Plaintiffs.

As the case proceeds, Officer Defendants can raise their qualified immunity defense and, if so, this Court may reevaluate whether Plaintiffs had done enough to overcome them. Plaintiffs allege that Macklin Converse, DiPasquale and Dressler participated in violation of fundamental constitutional rights, by warrantless seizing and dismantling non-evidentiary assets. They are entitled to an opportunity to prove it….