The home’s sole occupant at the time of the search, Tricia Wachsmuth, now 26, is suing the department and the officers involved for excessive force. She claims police didn’t give her any time to answer the door before they broke it open, unnecessarily deployed a flashbang, used SWAT-style tactics and used her as a human shield when searching the basement.
Police say they knocked and gave Wachsmuth time to answer the door, that she willingly led them into the basement and that the information they had — of illegal drug activity, loaded firearms and a possibly mentally unstable suspect — justified the flashbang and forced entry.
Two mature marijuana plants were seized in the raid of the East North Street home on Feb. 24, 2009, though police say they were told by an informant to expect 10 to 20 plants. Tricia and her husband Bret eached pleaded guilty to misdemeanor marijuana-related charges following the operation.
Tricia Wachsmuth’s lawsuit, being tried in U.S. District Court Judge Alan Johnson’s courtroom in Cheyenne, is entering its third week before an eight-member jury.
Wachsmuth’s attorney, Jeff Gosman of Casper, was expected to finish presenting his case sometime Monday, with the police department’s defense to follow.
Due to the unexpected length of Gosman’s case, the defense was allowed to call one of its witnesses out-of-order on Friday — Cmdr. Thor Eells of the Colorado Springs, Colo., Police Department, the defense’s police-practices expert.
Eells oversees a staff of about 110 officers and civilians, he said, has personally served on around 700 SWAT missions and supervised another 400 or so. Eells also is an instructor and board member for the National Tactical Officers Association.
Eells testified that he found no fault with the Powell department’s actions that night.
With information police had, their plan “was really no different than what I would have done within my own agency,” he said.
That included the deployment of the flashbang in the master bedroom; the device was intended to distract the home’s occupant(s) from the officers entering the front door and keep them from arming themselves with weapons the informant said were in the bedroom. Five guns — three handguns and two rifles — ultimately were found in the room.
Powell Police Sgt. Alan Kent broke out the bedroom window.
It was nighttime, and no lights were on inside the bedroom, Kent said, but a streetlight across the street gave some lighting to see the far wall.
Officer Matt McCaslin, who actually dropped the flashbang into the bedroom, said the window frame came up to about his eye level, blocking his view of whatever was below the window. However, McCaslin said he could see the area immediately beyond the window.
Unbeknownst to the officers at the time, a bed sat directly underneath the window and the device landed on a pillow, causing significant scorching to it and other bedding. During cross-examination, Eells agreed with Gosman that the flashbang would have caused serious damage if it had landed on someone’s face.
“Had we had any indication that there was anybody right in that immediate area of that window where the flashbang was going to be deployed, we would not have deployed that flashbang,” McCaslin said.
Kent said if there had been anyone on the bed, he believes they would have woken up to either the dog barking, the knock on the door, the officers ramming open the door and the window glass breaking and falling onto where an individual’s face would be.
“There was ample time, I feel, if they’d have been on the bed to yell, scream stand up, whatever,” he said.
In his deposition, Kent said it would be inappropriate for an officer to deploy a flashbang without seeing where it would land. However, last week, he, McCaslin and Eells said the potential risk to officers justified not looking in the window to see the exact spot where the device would land.
If the officer believes they can deploy the device safely, “they don’t have to see exactly where it’s going to land, and we teach that,” said Eells.
It was the first time in the history of the Police Police Department that an officer had deployed a flashbang outside of training.
McCaslin had thrown just one flashbang in training prior to deploying the one at the Wachsmuths’ home.
However, Eells, who trains officers in the use of flashbangs, said deploying one of the devices takes only simple motor skills and good judgment.
After throwing thousands, “I’m no better today at tossing one than I was tossing the first one,” he said.
Eells’ assessment of the department’s actions stands in stark contrast to that of the plaintiff’s expert on police practices, D.P. Van Blaricom.
Van Blaricom said police made “a mountain out of a molehill” and used tactics more appropriate for raiding a crack house in East Los Angeles than a small marijuana grow operation in Powell.
But in his testimony Friday, Eells said, “This was really the right balance (of force).” He said the department made the right call in not serving the warrant as a knock-and-talk but also not applying for a no-knock warrant.
Attorneys said last week that they were hoping to have the case to the jury by Tuesday afternoon; Judge Johnson told attorneys the jury has grown impatient with the trial’s length and repetition.
Police chief says using a less forceful plan would have been inappropriate
Powell Police Chief Tim Feathers testified last week that he believes the department chose the right plan to search Bret and Tricia Wachsmuth’s home, citing the guns and reported issues of possible mental instability.
That plan, police say, was to knock and announce their presence, and if the door didn’t open immediately, a team was going to ram it open and a flashbang would be deployed in the bedroom. A third team was also supposed to break out the home’s back door window, but they never got into place.
Tricia Wachmsuth claims in her suit that the planned and used amount of force was excessive.
Her attorney, Jeff Gosman, has repeatedly suggested, and her hired expert, former Bellevue, Wash., police chief, D.P. Van Blaricom, said the Wachsmuths’ lack of a history of criminal behavior or violence should have been the most important factor in determining how to execute the search warrant.
Feathers, testifying on Thursday, said the other information about weapons, drugs, and mental issues in the home, was a higher priority.
Had he told the officers they didn’t need to worry because the Wachsmuths didn’t have a prior criminal history, “I think that kind of flies in the face of reason with all this other information,” Feathers said.
“The absence of a criminal record does not then make it a low-risk warrant,” said Cmdr. Thor Eells, the defense’s police practices expert. “It’s just an unknown, and the safest thing for everybody is to assume it’s an unknown.”
Though he doesn’t recall checking the Wachsmuths’ criminal history prior to the raid, electronic records show Feathers did. The chief said he must not have thought the information was significant.
Feathers said he thought the situation was too dangerous for him to feel comfortable doing a knock and talk personally.
“I, in good conscience, could not ask my officers to do that either,” he said.
“I think that would have been absolutely foolish,” said Eells of a knock and talk, citing the information police had.
Testifying earlier on Friday, Bret’s father, Wyoming Division of Criminal Investigation special agent Tom Wachsmuth, said the Powell Police Department’s concerns were inaccurate. Tom Wachsmuth said police knew Bret’s bi-polar disorder was being successfully treated with medication. Further, he said police knew an alleged MySpace photo of Bret posing in “riot gear” — mentioned during the briefing for the warrant service — was actually a picture of his brother, goofing around in silly poses.
Feathers said he considered just waiting for a time when police knew everyone was out of the house, but ruled that out after learning the informant had told Bret the police had been tipped off.
“If we wait and consider doing this tomorrow or the next day, our evidence is going to be gone,” he said.
Feathers also rejected the suggestion of enlisting the help of agent Wachsmuth in serving the search warrant. Feathers said he’s reluctant to involve family members in such operations. He said police can be accused of showing favoritism, and if the search comes up empty, there may be suspicions the family member helped hide evidence.
If a family member is brought into the operation and doesn’t handle the information well, “it can set it (the situation) off and make it go bad on you real quick,” Feathers said.
In this instance, Feathers called Wachsmuth’s supervisor, Steve Herrmann, and asked him how he believed Wachsmuth would handle it. When Herrmann said he was unsure, Feathers said he ruled it out.
Kent said he also had concerns about involving Tom Wachsmuth.
“My main concern was that blood’s thicker than your job. How are you going to react — it’s your son,” Kent said. “If it was me, I don’t know if I could choose between my job and my son. I’d like to think I could choose my son.”
Eells said he also tends to be very reluctant to get family members involved in investigations. Van Blaricom concluded Powell police should have used less force, such as a knock and talk, but said earlier in the trial that he would not have involved a family member in the investigation.
Park County Sheriff’s Lt. Dave Patterson, who was involved in putting together the search warrant, has said he believed police did not need to plan and perform a “dynamic entry,” and testified earlier he believed involving Tom Wachsmuth was a viable option. Patterson said the sheriff’s office successfully involved family members in multiple operations.
Tom Wachsmuth has served in law enforcement for 35 years, has served as a SWAT team leader and briefly was a chief of police. He moved to Wyoming in 2004 to work with the Powell DCI office. Wachsmuth was not asked to offer his opinion at the trial, but in his deposition said he believes it would have been “a very good option” for police to call him.
“I feel very strong that many of these things that happened — the destruction of the house and things like that, using Tricia as a human shield and things like that — wouldn’t have happened if they would have called me,” he said in his deposition.
In his testimony Thursday and Friday, Wachsmuth discussed what he believes is excessive damage Powell police did to the home and garage and the psychological changes he saw in Tricia following the raid, such as being afraid of police and startling at unexpected noises.
Tom Wachsmuth also testified Sgt. Mike Chretien apologized to him that night for unspecified things that happened and again a day or two after the search.
“I said to Sgt. Chretien, I said, ‘Mike, to flashbang the house, I don’t understand that, and you should be ashamed for using Tricia as a human shield,’ and he said, ‘I’m sorry about that,’ and we moved on to another subject,” said Tom Wachsmuth.
He said officers Chad Miner and Mike Hall also apologized for what happened that night.
Wachsmuth testified he did not know his son was growing marijuana until police called him that night. Bret testified on Monday that he and Tricia hid drug paraphenalia when his father came over, and that Tom Wachsmuth did not go into the basement where the plants were growing.
Had he known of the operation, “I would have taken care of it,” Tom Wachsmuth said. “Quite frankly I believe I would have called the Powell Police Department and told them to take care of the issue.”