United States District Court, D. Maryland
Catherine Blake United States District Judge.
Kerron Andrews brings this action against defendants the
Baltimore City Police Department ("BPD") and former
Police Commissioner Kevin Davis,  as well as Detectives
Michael Spinnato and John Haley,  alleging violation of his
right to be free from unreasonable searches and seizures and
seeking a permanent injunction, damages, costs, expenses, and
attorneys' fees. Andrews sues each of the defendants
under 42 U.S.C. § 1983, alleging a violation of the
Fourth Amendment. He also sues Spinnato-and Haley under the
Maryland Declaration of Rights, alleging a violation of
Article 26 of that charter. Now pending is defendant BPD and
defendant Davis's joint motion to dismiss or, in the
alternative, for summary judgment and defendant Haley and
defendant Spinnato's joint motion for partial judgment on
the pleadings. The parties have fully briefed the issues, and
oral argument was heard on January 18, 2018, Supplemental
correspondence was filed June 27 and 28, 2018. For the
reasons set forth below, both motions will be granted.
Kerron Andrews ("Andrews") is a resident of
Baltimore, Maryland. (ECF No. 2, ¶ 13). The Baltimore
City Police Department is a local government agency.
Id. at ¶ 17. Commissioner Kevin Davis
("Commissioner Davis") is the former Commissioner
of the BPD. Id. at ¶ 19. Detective Michael
Spinnato ("Detective Spinnato") is a detective,
with the BPD assigned to the Warrant Apprehension Task Force
("WATF"). Id. at ¶ 14. Detective John
Haley ("Detective Haley") is a detective with the
BPD assigned to the Advanced Technical Team
("ATT")- Id. at ¶ 15.
April 27, 2014, Andrews was identified by photo array as the
individual who shot three people during a drug deal on
Stafford Street in Baltimore City. (ECF No. 24-1, p. 4). A
warrant for Andrews's arrest was issued on May 2, 2014.
Id. Although the officers initially were unable to
locate Andrews, Detective Spinnato was able to obtain
Andrews's cell phone number through a confidential
informant. Id. On May 5, 2014, Detective Spinnato
obtained a pen register/trap and trace order
("PRO") for that cell phone number from Judge Barry
G. Williams, a judge of the Circuit Court for Baltimore City.
Id. The PRO authorized the BPD:
to use for a period of sixty (60) days from the date of
installation, a Pen Register \ Trap & Trace and Cellular
Tracking Device to include cell site information, call
detail, without geographical limits, which shall be installed
and used within the jurisdiction of this Court, upon the
telephone(s) having the number(s): 443-208-2776, a AT&T;
Sprint/Nextel; Virgin Mobile; T-Mobile; Cellco Partnership,
DBA Verizon Wireless, Verizon; Cricket Communications, Inc;
and / or any other Telecommunication service provider,
No. 18-3, p. 14 of 19).
that same day, Detective Spinnato asked Detective Haley and
the ATT to assist him in tracking Andrews. (ECF No. 2, ¶
39). The ATT served Andrews's phone company, Sprint, with
the PRO. (ECF No. 24-1, p. 4). Sprint released to them
Andrews's phone records, which revealed historical
location information for Andrews's cell phone.
Id. This information allowed defendants to isolate
the general location of Andrews's phone. Id.
the parties dispute how accurately the officers were able to
locate Andrews's phone based solely on the records
obtained from Sprint, they agree that at some point the
officers felt it necessary to utilize a cell-site simulator
("CSS") called "Hailstorm" in order to
locate Andrews more precisely. (See ECF No.
2, ¶42; ECF No. 24-1, pp. 4-5). Defendants
describe a CSS as "a duplicate of equipment that records
dialing, routing, and signaling information and can be used
to send a signal to [a] phone to identify its location, in
real-time." (ECF No. 24-1, p. 14). Andrews alleges
numerous additional details about CSS that defendants do not
dispute. He states that a CSS masquerades as a cell tower
that emits particularly strong signals. (ECF No. 2, ¶
28). A cell phone usually transmits signaling
information-including the cell phone's number, location
and international subscriber identification number
("IMSI")-to its service provider's nearest cell
tower. Id. at ¶ 26. When there is an activated
CSS nearby, however, the cell phone unknowingly transmits
that information to the CSS instead. Id. at ¶
28. This is true whether the cell phone is located behind
walls inside a home or in the hand of an individual walking
down the street. Id. at ¶ 29.
the parties disagree about when the officers first activated
the CSS, (see ECF No. 2, ¶ 44; ECF No. 24-1, p.
5), they agree that at some point it was activated and
revealed that Andrews's cell phone was located inside a
home at 5032 Clifton Avenue. (See ECF No. 2,
¶¶ 45-46; ECF No. 24-1, p. 5). After the cell phone
was located, Detective Spinnato knocked on the door and
obtained consent to enter the residence. (ECF No. 24-1, p.
5). He did so and arrested Andrews, who was sitting on the
couch with the cell phone in his pants pocket. (ECF No. 2,
¶ 47; ECF No. 24-1, p. 5).
August 20, 2015, the Circuit Court for Baltimore City granted
a suppression motion filed by Andrews in his state criminal
prosecution. See State v. Andrews, 227 Md.App. 350
(2016). The Circuit Court found that "the government
violated [Andrews'] Fourth Amendment rights by
essentially using the Hailstorm to locate him at [his]
residence." Id. at 368. On March 30, 2016, the
Court of Special Appeals of Maryland upheld that ruling,
finding that "the evidence obtained in the search of
5032 Clifton Avenue is inadmissible . .. and was properly
excluded by the suppression court." Id. at 420.
The State did not appeal this ruling to the Maryland Court of
10, 2016, Andrews filed the complaint in this case, alleging
that the defendants violated his Fourth Amendment rights as
part of a department-wide practice of using a CSS without
first obtaining a warrant. (See ECF No. 2).
Specifically, Andrews claims that "when purchasing or
acquiring use of HAILSTORM from or through the Harris
Corporation, [the BPD] and the Office of the State's
Attorney for Baltimore City signed a non-disclosure agreement
["NDA"] with the Federal Bureau of Investigation
("FBI"), by which they contracted not to disclose
to the public or any court any information about HAILSTORM,
even its existence." Id. at ¶ 36.
Defendants acknowledge that they entered into such an
agreement. (See ECF No. 30, p. 12). They even
provide the court with a copy of the agreement, which states
The Baltimore City Police Department and Office of the
State's Attorney for Baltimore City shall not, in any
civil or criminal proceeding, use or provide any information
concerning the Harris Corporation wireless collection
equipment/technology, its associated software, operating
manuals, and any related documentation (including its
technical/engineering description(s) and capabilities) beyond
the evidentiary results obtained through the use of the
equipment/technology including, but not limited to, during
pre-trial matters, [and] in search warrants ... If the
Baltimore Police Department or the Office of the State's
Attorney for Baltimore City learns that a District Attorney,
prosecutor, or a court is considering or intends to provide
[such] information ... in a manner that will cause law
enforcement sensitive information relating to the technology
to be made known to the public, the Baltimore Police
Department and/or Office of the State's Attorney for
Baltimore City will immediately notify the FBI in order to
allow sufficient time for the FBI to intervene to protect the
equipment/technology and information from disclosure and
(ECF No. 30-1, p. 2). The NDA was signed on August 11, 2011,
by both then-BPD Police Commissioner Frederick H. Bealefield,
III, and then-State's Attorney for Baltimore City Gregg
L. Bernstein. Id. at p. 5.
alleges in Count I that each of the defendants violated his
freedom from unreasonable searches and seizures guaranteed by
the Fourth Amendment. He alleges in Count II that Detectives
Spinnato and Haley violated his freedom from unreasonable
searches and seizures guaranteed by Article 26 of the
Maryland Declaration of Rights. On 'June 8, 2017, the BPD
and Commissioner Davis filed the pending motion to dismiss
or, in the alternative, for summary judgment. (ECF No. 24).
On December 29, 2017, Haley and Spinnato filed the
pending motion for partial judgment on the pleadings. (ECF
and Commissioner Davis have filed a dispositive motion styled
as a motion to dismiss under Fed.R.Civ.P. 12(b)(6) or, in the
alternative, for summary judgment under Fed.R.Civ.P. 56. They
have attached exhibits to their submissions. (See
ECF No. 18-3; ECF No. 30-1). A court "is not to consider
matters outside the pleadings or resolve factual disputes
when ruling on a motion to dismiss." Bosiger v. U.S.
Airways, 510 F.3d 442, 450 (4th Cir. 2007). If the court
does so, "the motion must be treated as one for summary
judgment under Rule 56." Fed.R.Civ.P. 12(d). Therefore,
a motion styled in this manner implicates the court's
discretion under Rule 12(d) of the Federal Rules of Civil
Procedure. See Kensington Vol. Fire Dept., Inc. v.
Montgomery County, 788 F.Supp.2d 431, 436-37 (D. Md.
2011). "When the movant expressly captions its motion
'in the alternative' as one for summary judgment, and
submits matters outside the pleadings for the court's
consideration, the parties are deemed to be on notice that
conversion under Rule 12(d) may occur; the court 'does
not have an obligation to notify parties of the
obvious.'" Soger v. Hous. Comm'n of Anne
Arundel Cty., 855 F.Supp.2d 524, 542 (D. Md. 2012)
(quoting Laughlin v. Metro. Wash. Airports Auth.,
149 F.3d 253, 261 (4th Cir.1998)). A district judge has
"complete discretion to determine whether or not to
accept the submission of any material beyond the pleadings
that is offered in conjunction with a Rule 12(b)(6) motion
and rely on it, thereby converting the motion, or to reject
it or simply not consider it." Sager, 855
F.Supp.2d at 542 (quoting 5C Wright & Miller, Federal
Practice & Procedure § 1366, at 159 (3d ed. 2004,
2011 Supp.)). Because the court is considering the
defendants' submissions, their motion will be treated as
a motion for summary judgment.
and Spinnato have filed a motion for partial judgment on the
pleadings under Fed.R.Civ.P. 12(c). Under Rule 12(c),
"after the pleadings are closed-but early enough not to
delay trial-a party may move for judgment on the
pleadings." If "matters outside the pleadings are
presented to and not excluded by the court," a Rule
12(c) motion, like a Rule 12(b)(6) motion, "must be
treated as one for summary judgment under Rule 56."
Fed.R.Civ.P. 12(d). Therefore, this motion also will be
treated as a motion for summary judgment.
motion for summary judgment will be granted only if there
exists no genuine issue as to any material fact and the
moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(c); Tolan v. Cotton, 134 S.Ct. 1861,
1866 (2014); Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 250 (1986). A material fact is one that may affect
the outcome of the suit. Anderson, 477 U.S. at 248.
In assessing a motion for summary judgment, the court must
view the facts, and all inferences justifiably drawn
therefrom, in the light most favorable to the nonmoving
party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587-88 (1986). The court must
decide whether there is a genuine issue for trial,
"not.., weigh the evidence and determine the truth of
the matter," Tolan, 134 S.Ct. at 1866 (quoting
Anderson, 477 U.S. at 249).
court focuses its analysis on the BPD and Commissioner
Davis's motion, because resolving that motion also
resolves Haley and Spinnato's motion. Andrews sues the
BPD and' Commissioner Davis under 42 U.S.C. §
1983. When a plaintiff sues a municipality under
Section 1983, he may seek to hold the municipality
responsible for its own unconstitutional acts but may not
seek to hold the municipality vicariously responsible for the
acts of its employees. See Monell v. Dep't of Social
Services, 436 U.S. 658, 692 (1978). Therefore, a
plaintiff must prove two things .to impose Monell
liability on a municipality. First, she must prove the
municipality acted according to an official municipal
"policy or custom." See Connick v.
Thompson, 563 U.S. 51, 61 (2011); Board of
Commissioners of Bryan County v. Brown, 520 U.S. 397,
404 (1997). Second, she must prove the "policy or
custom" caused-or was the "moving
force"-behind the violation of her constitutional
rights. Connick, 563 U.S. at 60-61; Bryan
County, 520 U.S, at 404-05.
argues that the NDA was an "official municipal
policy" of the BPD which was the "moving
force" behind a violation of his Fourth Amendment
rights. He claims his Fourth Amendment rights were violated
when the BPD used a CSS to search for the ...