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Andrews v. Baltimore City Police Department

United States District Court, D. Maryland

August 1, 2018



          Catherine Blake United States District Judge.

         Plaintiff Kerron Andrews brings this action against defendants the Baltimore City Police Department ("BPD") and former Police Commissioner Kevin Davis, [1] as well as Detectives Michael Spinnato and John Haley, [2] 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.


         Plaintiff 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.

         On 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, telephone.

         (ECF No. 18-3, p. 14 of 19).[3]

         Later 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.

         Although 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.

         Although 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).

         On 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 Appeals.

         On June 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 in part:

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 potential compromise,

(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.

         Andrews 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 No. 44).


         The BPD 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.

         Haley 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.

         A 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).


         The 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.[4] 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.

         Andrews 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 ...

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