The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

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

A federal court has allowed the case to go forward, including on a theory that the Department does this as a "pattern and practice."


From Judge Stephanie Gallagher's opinion Thursday in Cottman v. Baltimore Police Dep't:

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, 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 alleges that a stranger 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 Officer Destinee Macklin seized her jacket, phone, wig, and shoes without her consent. At some point thereafter, Defendant Macklin and/or other unnamed BPD officers illegally searched Ms. Cottman's phone without her consent or a 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 had never seen the shooter before. In September, 2019, the Baltimore City Circuit Court found the shooter not criminally responsible, committed her to a psychiatric institution, and closed the case. In May, 2020, Defendant Macklin was contacted regarding Ms. Cottman's property. After initially agreeing to return it, Defendant Macklin did not respond to further attempts to contact her, and Ms. Cottman's property remains in BPD custody.

On March 20, 2020, Plaintiff Amber Spencer attended a cookout to celebrate her boyfriend's birthday, where she was shot by a stranger. While at the 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 the key to her car. When Ms. Spencer later contacted Defendant Converse, he stated that he was unable to return her property, and that she could retrieve her property once the State of Maryland and the City of Baltimore entered "Phase 3" of the COVID-19 recovery. Ms. Spencer's property remains in BPD custody.

On June 29, 2019, a stranger shot Plaintiff Damon Gray while he was walking down the street. Mr. Gray was transported by ambulance to the hospital. Once there, Defendant Officer AnnMarie DiPasquale seized Mr. Gray's cell phone, a bracelet, a necklace, and several articles of clothing. That property remains in BPD custody.

On June 9, 2018, Dwayne Cheeks—Plaintiff Audrey Carter's son—was shot and killed. BPD officers seized, inventoried, and logged Mr. Cheeks's property in the Evidence Control Unit ("ECU"), including a cell phone, a watch, a driver's license, debit and credit cards, earphones, a lottery ticket, a key holder with two keys, two separate silver keys, a partially empty pack of cigars, a lighter, $435 dollars in U.S. Currency, and numerous articles of clothing. Ms. Carter repeatedly reached out to Defendant Officers Ryan O'Connor, Robert Ross, and Mark Walrath in an effort to retrieve her son's property. On December 12, 2019, Defendant Walrath informed Ms. Carter that Defendant O'Connor would arrange to return to her the $435 in cash. However, he also informed her that the BPD had destroyed several of the items seized from her son, including the: driver's license; Visa card; independence card; at least two debit/credit cards; earphones; lottery ticket; key holder with two keys; two separate silver keys; and partially empty pack of cigars.

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

Ms. Carter filed two formal complaints with the BPD's Public Integrity Bureau but received identical form responses that her allegations had not been sustained. Ms. Carter emailed then-City Council President Brandon Scott asking for help. He responded asking for more information but took no further steps to investigate or address the issues Ms. Carter had raised, including since he has been 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's suspected killer. 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 "actual and constructive knowledge of widespread Fourth Amendment and due process violations."

The court also allowed the claims against individual officers to go forward, because their behavior (if it was in fact as alleged) wasn't shielded by qualified immunity:

[T]he Amended Complaint states a claim that Officer Defendants Macklin, Converse, and DiPasquale each engaged in conduct that violated 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. Defendant Macklin allegedly seized Ms. Cottman's jacket, phone, wig, and shoes, all without a 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….

Similarly, the Amended Complaint states a claim against Defendant Dressler insofar as it alleges that he unlawfully authorized the destruction of Plaintiff Carter's son's property. Taking that allegation to be true, it states a plausible claim that he participated in violating Plaintiff Carter's right to due process. The Amended Complaint, here, alleges that no process was afforded. The Amended Complaint acknowledges that the BPD attempted to send a letter to Ms. Carter and her deceased son, though the contents of the letter are unknown. However, it also alleges that BPD officials acknowledged that Defendant Dressler's authorization of the destruction of Ms. Carter's son's property violated 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….

The question, then, with respect to Defendants Macklin, Converse, DiPasquale, and Dressler, is whether the rights that they allegedly violated are clearly established. With respect to the Fourth Amendment violations, the Officer Defendants argue that "Plaintiffs have no viable Fourth Amendment claim because, in the simplest terms, officers lawfully may seize from the person or vicinity of crime victims clothing and other personal property that may be evidence of [a] crime." That is undoubtedly true, but the Amended Complaint alleges that the Officer Defendants searched and seized property that was not evidence of a crime. It is axiomatic that a police officer may not seize property whose "probative value remain[s] uncertain," or when there exists no "probable cause to associate the property with criminal activity." 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 the facts develop in this case, Defendants may uncover evidence that muddies the water with respect to whether the Officer Defendants violated clearly established rights, or even whether they violated any rights at all. For example, as the Officer Defendants suggest in their briefing, the facts might show that the officers had probable cause, and a valid warrant exception, to seize some of Plaintiffs' property.

As this case progresses, the Officer Defendants are free to reraise their qualified immunity defense, and, if they do, this Court will reevaluate whether Plaintiffs have done enough to overcome it. For now, though, Plaintiffs have alleged that Defendants Macklin, Converse, DiPasquale, and Dressler personally participated in the violation of basic constitutional rights by conducting warrantless seizures of, and destroying, non-evidentiary property. They are entitled to an opportunity to prove it….