Defense attorneys for the officers charged in the arrest and death of Freddie Gray are accusing prosecutors of misconduct by "judge-shopping" to get a search warrant approved.
In the latest filing in the case, the defense attorneys cite a police memo turned over by prosecutors that indicates an April 24 application for a warrant to search the officers' phones was rejected by a District Court judge, who found it lacked probable cause.
Three days later, an officer writes in the memo, a prosecutor called and said he or she had found a judge who had agreed to sign the warrants.
It's not clear what, if anything, investigators found on their phones.
The defense attorneys say taking a search warrant application that has been denied to another judge is improper. They want a hearing to determine whether any evidence obtained in the search should be suppressed.
Prosecutors have not responded to the motion, which was filed Monday. The office declined to comment on the allegation.
Staci Pipkin, a defense attorney and former prosecutor in the major investigations unit of the state's attorney's office, said the methods the defense attorneys allege the the prosecutors used would be "highly irregular."
"It's very frowned upon, because it makes both judges look bad," said Pipkin. She is not involved in the case.
David Lat, a former federal prosecutor and managing editor of the Above the Law blog, said prosecutors whose warrant applications are rejected typically seek to improve their argument or present more evidence to the same judge, rather than find another judge.
"Statistically, search warrants are granted fairly liberally," Lat said. "So to get dinged on a search warrant usually means the submission was pretty deficient."
The filing is the latest salvo in the high-profile case. Gray, 25, died after suffering spinal cord and other injuries while in police custody.
Six officers face charges ranging from misconduct in office to murder. All have pleaded not guilty. Their trials are scheduled to begin in October.
The police memo that documents the prosecutor's actions is dated May 12 — 11 days after State's Attorney Marilyn J. Mosby filed charges against the officers. The officer wrote that he or she decided to write the memo after advising an unknown person about the "events surrounding the issuing of the warrants."
In the affidavit, authorities say Gray was detained, then searched for weapons, at which point a "spring-loaded knife" was found.
When she charged some of the officers with false arrest, Mosby said the knife was legal under state law. Her office has since said Gray was detained falsely "well before the arresting officers knew he possessed a knife."
Pipkin, the former prosecutor, said she wouldn't have taken the application for a search warrant to another judge. But she also said she wasn't sure if the defense would prevail in their argument.
"Ultimately, a judge did find probable cause," Pipkin said.