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April 06, 2010 3:46 am

City responds to police suit, denies allegations

Written by Tribune Staff

Response says police actions were ‘objectively reasonable'

The city of Powell and members of the Powell Police Department are denying allegations that they violated a Powell woman's civil rights during a February 2009 drug search of her and her husband's home.

Tricia Wachsmuth filed suit in the federal district court for the district of Wyoming on March 8, alleging police used excessive force, acted recklessly, caused unnecessary damage to her home and used her as a human shield in executing a search warrant for marijuana plants.

In filings last week, the city and police department denied those allegations.

The responses list some two dozen separate legal defenses to Wachsmuth's suit, among them, that the police department's actions were “objectively reasonable” given the circumstances of the search, that only necessary and reasonable force was used and that the city, police department and its officers are immune from the suit.

The two separate answers — one filed through Local Government Liability Pool attorney Thomas Thompson of Rawlins to cover the police and city in their official capacities and one through Senior Assistant Attorney General Misha Westby to cover the officers and chief in their individual capacities — provide few additional details about the search of Bret and Tricia Wachsmuth's home on Feb. 24, 2009.

Earlier in the day, a confidential informant, who previously lived with the Wachsmuths, told police the couple was growing marijuana in their basement and had loaded guns in their home, court documents say. A team of officers executed a search warrant at the Wachsmuths' East North Street residence at around 9:15 p.m., breaking open the front door and deploying a flashbang in the home's master bedroom. The complaint filed on behalf of Tricia Wachsmuth alleges that a mattress, bedding and carpet was set on fire by the flashbang, while the floor, an unlocked bathroom door, heating vents and photos were damaged in the search. Police admit there was some damage to the bedding, but deny the other allegations.

Wachsmuth further alleges that an officer pointed a rifle at her head and forced her to go first down the stairs to the basement — a claim police deny.

Ultimately, Powell police recovered four guns in the home and two marijuana plants in the basement, says a police affidavit filed in subsequent criminal cases against the Wachsmuths; two loaded revolvers were recovered from the master bedroom.

Through a plea agreement, Bret Wachsmuth was ultimately found guilty of a misdemeanor count of cultivating marijuana, while Tricia Wachsmuth received deferred prosecution on a charge of misdemeanor marijuana possession. As of last week, paperwork was pending for a dismissal of that case as Wachsmuth has completed her six months of probation and paid $180.

Prior to the search of their home, neither Wachsmuth had a criminal history or a history of violence, says their initial complaint.

The city's response alleges in defense of police “that by investigation and information provided by the confidential informant, defendants were aware that loaded guns were placed throughout the Wachsmuth residence and that the Wachsmuth's (sic) were exhibiting behavior consistent with paranoia.”

The city and police department's response also lays out the general plan for executing the search warrant.

“(A) primary team consisting of six officers, and five with long guns, were to announce, ‘police, search warrant' and if the door did not open immediately, the (battering) ram was to be used for entry,” says the city's response. At the rear of the home, officers planned to break out a window to create a distraction, while a flashbang was deployed in the bedroom, the response says.

The city's response takes issue with the group of officers being described as a SWAT team.

“(T)he Powell Police Department does not have a SWAT team,” says the response.

Police say an officer knocked on the door and announced, “police, search warrant” prior to entering the home.

Wachsmuth, who police admit was sitting on the couch “in the proximity of the door” at the time of the search, alleged in an affidavit that the announcement was made only after officers were inside. The complaint alleges that officers entered without knocking, using the battering ram on the unlocked door after Wachsmuth made eye contact with an officer crouched on her front porch.

The search warrant was a “knock and announce” warrant, which refers to guidelines from the U.S. Supreme Court generally requiring that police officers knock and give a “reasonable wait time” before entering a building. In the past, the Supreme Court has found that a 15- to 20-second wait was reasonable, though it is not a threshold. Additionally, exceptions can apply if there is a threat of physical violence or if there is a threat of evidence being destroyed.

In a 2006 case which dealt with Detroit police who entered without knocking or giving time to answer, the U.S. Supreme Court ruled that a violation of the “knock and announce” rule was not grounds for suppressing evidence. Justice Antonin Scalia, writing for a 5-4 majority, found instead that the threat of civil rights lawsuits was “an effective deterrent” to such Fourth Amendment violations. He noted that suits were proceeding in lower courts “unimpeded by assertions of qualified immunity.”

Named in Tricia Wachsmuth's complaint are the city, Police Chief Tim Feathers and a dozen Powell Police officers.

Wachsmuth is seeking up to $1 million in damages, alleging she suffered emotional distress as a result of the search in addition to the physical damages.